Carter v. Utah Power & Light Co.

800 P.2d 1095, 18 Media L. Rep. (BNA) 1497, 146 Utah Adv. Rep. 6, 1990 Utah LEXIS 80, 1990 WL 163422

• Court: Utah Supreme Court
• Decided: October 22, 1990
• Docket: 870340
• Status: Published

Opinions

ZIMMERMAN, Justice:

Utah Power & Light (“UP & L”) appeals from an order entered by the district court for the fourth judicial district granting the motion of the Utah Chapter of the Society of Professional Journalists, KUTV, Inc., Bonneville International, Inc., United Television, Inc., Kearns-Tribune Corp., Deseret News Publishing Co., and The Standard Corp. (hereinafter collectively referred to as “the media”) for access to filed pretrial depositions. UP & L argues, inter alia, that the district court erred in holding that depositions filed with the court but not used in the litigation are public court records. We affirm the district court’s order granting access to the depositions.

In Carter v. UP & L, the surviving spouses and children of twenty-six¹ coal miners killed in a fire in the Wilberg Mine sued UP & L alleging that the miners’ deaths resulted from UP & L’s negligence. After much discovery, including almost two hundred depositions, the case was settled in February of 1987. In April of 1987, the media filed a motion to intervene in Carter, seeking access to portions of the record. Specifically, they sought the settlement agreements and portions of the depositions relating to UP & L’s possible responsibility for the fire and the consequent deaths of the twenty-six miners.

The media’s motion to unseal the judicial records was bifurcated, and Judge Harding was assigned the portion of the motion relating to the settlement documents he had previously ordered sealed. He denied that part of the motion, a ruling that is not before us.

Judge Christensen was assigned the portion of the motion relating to the depositions. The depositions had been filed with the Utah County clerk, but had not been used by the litigants in court. The depositions were withheld from public inspection solely by reason of the clerk’s understanding of Utah Rule of Civil Procedure 30(f)(1), which provides that depositions shall be “securely seal[ed]” in an envelope by the officer taking the deposition before filing it with the clerk of the court.² UP & L objected to the media’s motion to disclose the contents of the depositions, arguing, apparently in accordance with the clerk’s practice, that filing sealed depositions with a court does not subject them to public inspection. It also contended that publication of the depositions might prejudice product liability suits it is pursuing against various companies whose products may have contributed to the disaster.

Judge Christensen filed a memorandum decision granting disclosure. He first found that there is a public right to inspect court records based on sections 78-26-1 and 78-26-2 of the Code, which are portions of the Utah Public and Private Writings Act (“the Act”). See Utah Code Ann. §§ 78-26-1 to -8 (1987). These sections provide that every citizen has a right to inspect any “public writing,” and the statute defines “public writings” as including “judicial records.” Utah Code Ann. § 78-26-1, -2 (1987). The term “judicial records” is not defined in the statute, nor has it been defined by prior case law.³ Therefore, Judge Christensen looked to the Code of Judicial Administration, the Utah Rules of Civil Procedure, and the common law in coming to the conclusion that filed, sealed depositions are “judicial records” and subject to inspection. The judge then held that this statutory right of inspection can be restricted for good cause shown under the protective order provision of Utah Rule of Civil Procedure 26(c). He concluded that UP & L had not made such a showing with respect to its claim of harm to its pending products liability claims litigation and ordered the depositions made public.

On appeal, UP & L does not challenge the trial court’s finding that it has not made a rule 26(c) showing of good cause that would justify issuance of a protective order. It does, however, attack the court’s conclusion that filed, sealed deposition transcripts are “judicial records” under the Act. Therefore, this appeal presents only questions of law. We review a trial court’s conclusions of law under a correctness standard and accord them no particular deference. E.g., Transamerica Cash Reserve, Inc. v. Dixie Power & Water, Inc., 789 P.2d 24, 25 (Utah 1990); Scharf v. RMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

It is important at the outset to observe that the question presented is only whether the public has a “right to inspect and take a copy” of sealed deposition transcripts filed with the court, a right that can, in effect, be overcome by a showing of the good cause necessary to secure a protective order from the court. There is nothing in the Act which suggests that the protective order provisions of Utah Rule of Civil Procedure 26(c) do not apply to judicial records.⁴ See Utah R.Civ.P. 26(c).

In determining whether the depositions at issue fall within the term “judicial records” as it is used in the Act, we look to a variety of sources, as Judge Christensen did. In reviewing those sources, our point of departure is the legislative policy, embodied in the Act, that records in the hands of public agencies should be available for inspection by the public unless there is a good reason for keeping them from public view. KUTV v. Board of Educ., 689 P.2d 1357, 1360-61 (Utah 1984). This policy suggests that if we find a split of relevant authorities on the question of the public availability of sealed, filed depositions, we should follow those authorities that favor public access.

In his memorandum decision, Judge Christensen relied on rule 4-1(1) of the Code of Judicial Administration, promulgated in 1986. The stated intent of the rule is to “adopt uniform guidelines for the dissemination of information from court records.” Utah Code Judicial Admin.R. 4-1.⁵ The rule provides that “judicial records which are public writings” include, inter alia, “easefiles.” Utah Code Judicial Admin.R. 4-1(1). Certain items within casefiles are defined by the rule to be private writings not available to the public. This listing does not include sealed, filed depositions. Utah Code Judicial Admin.R. 4-1(2). While it may be true, as UP & L argues, that a subsequently promulgated administrative rule should not control the interpretation given a statutory term, the fact remains that the Judicial Council has constitutional authority to promulgate rules “for the administration of the courts of the state.” Utah Const. art. VIII, § 12. At a minimum, rule 4-1(1) represents a statement of what a body of judges charged with fixing such rules views as the appropriate dividing line between materials that generally should be available to the public and those that should not. The council has drawn that line so as to make the documents at issue publicly available. That is certainly a fact to be accorded some weight in deciding how such documents should be treated under the Act, and it weighs in favor of a presumption of disclosure.

Judge Christensen also looked to the common law from other jurisdictions and there found support for the proposition that filed, sealed depositions have generally been presumed available to the public. In fact, the cases are fairly evenly split on the question.⁶ Judge Christensen took great pains to distinguish the cases finding filed pretrial depositions to be private. We see no need to belabor this point. We recognize that there are cases that go against us. The fact that the common law in other jurisdictions splits on the issue, and the precise balance of that split, is simply one more factor to be weighed in deciding how sealed, filed depositions should be treated under the Act.

In our view, the Federal Rules of Civil Procedure and their Utah counterpart support the view that a filed deposition is public. Several rules imply that once filed, discovery is public. For example, rule 5(d) of the Utah Rules of Civil Procedure states:

All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, but the court may upon motion of a party or on its own initiative order that depositions, interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding.

Utah R.Civ.P. 5(d) (emphasis added).

An advisory committee note to federal rule 5(d), which is substantially similar to the Utah rule and which was the model for the Utah rule, explains the provision allowing the court to enter an order that certain discovery materials not be filed:

Because copies required for filing are an added expense and the large volume of discovery filings presents serious problems of storage in some districts, the Committee in 1978 first proposed that discovery materials not be filed unless on order of the court or for use in the proceedings. But such materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally. Accordingly, this amendment and a change in Rule 30(f)(1) continue the requirement of filing but make it subject to an order of the court that discovery materials not be filed unless filing is requested by the court or is effected by parties who wish to use the materials in the proceeding.

Advisory Committee Notes to Fed.R.Civ.P. 5(d) (1980) (emphasis added).⁷ The italicized material clearly presumes that filing is the touchstone for public access. See In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 571-72 (E.D.N.Y.1985), aff'd, 821 F.2d 139 (2d Cir.1987).

UP & L attempts to enlist the support of Utah Rule of Civil Procedure 30(f)(1) for its argument that depositions filed with the court are not public until used in an adjudication. That rule states:

The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, he shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of [here insert name of witness]” and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.

Utah R.Civ.P. 30(f)(1) (emphasis added). We find UP & L’s position unpersuasive. This sealing provision is not a mandate for secrecy, but rather is to safeguard the integrity of depositions. See C.P.C. Partnership Bardot Plastics v. P.T.R., Inc., 96 F.R.D. 184, 185-86 (E.D.Pa.1982); Note, Access to Pretrial Documents Under the First Amendment, 84 Colum.L.Rev. 1813, 1826 (1984); 8 Wright & Miller, Federal Practice and Procedure, Civil § 2119 (1970).

Finally, we refer to Utah Rule of Civil Procedure 26(c) and to its federal counterpart. The text of this rule strongly supports the contention that all filed depositions are publicly accessible, absent a showing of good cause as to why they should be kept secret. The Utah rule, like the federal rule, provides:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ...:

(6) that a deposition after being sealed be opened only by order of the court. Utah R.Civ.P. 26(c).

The Second Circuit discussed the federal version of 26(c) in In re Agent Orange Product Liability Litigation, 821 F.2d 139, 145-46 (2d Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987):

A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.... Any other conclusion would negate the good cause requirement of rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.

Id. (citations omitted). Other courts have arrived at the same conclusion. See, e.g., Tallahassee Democrat, Inc. v. Willis, 370 So.2d 867, 870 (Fla.Ct.App.1979); Thomson v. Cash, 117 N.H. 653, 654, 377 A.2d 135, 136 (1977) (per curiam).

On balance, thus, we find the authorities supportive of public accessibility for sealed, filed depositions, especially when considered in light of the Act’s basic policy of openness. UP & L offers policy arguments that would support the conclusion that under certain circumstances depositions should not be available to the public until used in adjudication. It argues that the discovery process may be chilled, that it may become more complicated and burdensome, and that because deposition testimony has not passed the test of admissibility, the public may have access to irrelevant and prejudicial information. See United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir.1986), cert. denied sub. nom Tribune Co. v. United States, 480 U.S. 931, 107 S.Ct. 1567, 94 L.Ed.2d 760 (1987); Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st Cir.1986); In re San Juan Star Co., 662 F.2d 108, 115 (1st Cir.1981). While there is some merit to these arguments, the interplay of the Act and rule 26(c) suggests that many of UP & L’s concerns can be accommodated in the context of protective order proceedings. To the argument that repeated resort to protective orders might require burdensome evidentiary findings and could lead to time-consuming interlocutory appeals, as was asserted in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29 n. 23, 104 S.Ct. 2199, 2209, n. 23, 81 L.Ed.2d 17 (1984), we respond that we have faith in the managerial abilities of trial judges in controlling discovery and in fashioning protective orders in those relatively few cases where such problems are likely to arise with any frequency. We also doubt the magnitude of the problem painted by UP & L. It seems unlikely that there is a widespread public interest in reading the result of many of the depositions that are the mainstay of a litigator’s work in civil cases.

We conclude, as did Judge Christensen, that sealed, pretrial depositions which are filed with a court are presumptively public under the Act. Because UP & L did not make a protective order good cause showing, we affirm the trial court’s order.

HOWE, A.C.J., and DURHAM, J., concur.

1 . There is a discrepancy in the record as to the number of miners killed in the fire. In its memorandum decision, the trial court found that the issues in this case arose from the deaths of twenty-six miners in the mine fire. News accounts, some of which are included in the record, refer to the deaths of twenty-seven miners.

2 . Rule 30(f)(1) states in part:

The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, he shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of [here insert name of witness]” and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.

Utah R.Civ.P. 30(f)(1).

3 .UP & L makes the argument that we have already decided the issue. For that proposition, they rely upon cases in which we have found such depositions not to be part of the record on appeal. E.g., Thompson v. Ford Motor Co., 14 Utah 2d 334, 384 P.2d 109 (1963); Reliable Furniture Co. v. Fidelity and Guar. Ins. Underwriters Inc., 14 Utah 2d 169, 380 P.2d 135 (1963); Rosander v. Larsen, 14 Utah 2d 1, 376 P.2d 146 (1962). It is true that these cases involved refusals by the court to consider on appeal depositions that were not considered by the trial court, as evidenced by the fact that they were never unsealed. These cases do not aid UP & L's cause. The fact that we consider on appeal only those materials the trial court actually took into account says nothing about whether certain documents are "judicial records" for the purposes of the disclosure act.

4 . Contrary to Justice Stewart’s view of the Act, there is nothing to indicate that the legislature intended by its passage to preclude the application of the protective order provisions of Utah Rule of Civil Procedure 26(c) to particular documents that fall within the general definition of public records under the Act. Such an effect could fundamentally interfere with an individual court’s management of a particular case. Given the fact that the Utah Constitution places with this court the authority to promulgate rules of procedure and places certain limitations on the legislature’s alterations of those rules, see Utah Const., art. VIII, § 4, we certainly will not find that the legislature has intended to alter the operation of the rules of procedure absent a clear statement to that effect. Therefore, today we harmonize the provisions of rule 26 with the Act by viewing the Act as intended to apply to filed documents in.the absence of a specific order of a court to the contrary.

5 . The corresponding provision in the current rules is found in section 4-202. Utah Code Judicial Admin.R. 4-202 (1990).

6 . See, e.g., Gannett Co. v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2913, 61 L.Ed.2d 608 (1979) ("[DJuring the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants.") (Burger, C.J., concurring); United States v. Anderson, 799 F.2d 1438 (11th Cir.1986), cert. denied, 480 U.S. 931, 107 S.Ct. 1567, 94 L.Ed.2d 760 (1987); Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986); United States v. Beckham, 789 F.2d 401 (6th Cir.1986); In re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C.Cir.1985). For support of the position that filed depositions are public, see Wilson v. American Motors Corp., 759 F.2d 1568, 1569-71 (11th Cir.1985) (per cu-riam); Lewis R. Pyle Mem. Hosp. v. Superior Court, 149 Ariz. 193, 197, 717 P.2d 872, 876 (1986); Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367, 1371 (Fla.Ct.App.1980); Sanders v. Drane, 432 S.W.2d 54 (1968). Additionally, secondary sources seem to lean in favor of public availability. Wright and Miller, experts on federal civil procedure, write: "Ordinarily a deposition is a public document freely open to inspection after it is filed with the clerk.” 8 Wright & Miller, Federal Practice and Procedure, Civil § 2042 (1970). And another national treatise states: "In view of the definition of a court record as a memorial or history of judicial proceedings ... it is held that pleadings and depositions ... constitute part of the record." 21 C.J.S. Courts § 226 (1940) (footnotes omitted).

7 . We note that the current Code of Judicial Administration provides that depositions shall not be filed with the court except in support or opposition to motions or by order of the court for good cause shown. Utah Code Judicial Admin.R. 4-502(4) (1990).