Court of Appeal:
Perluss’s Opinion Says Court Properly Denied Motion to Compel Public Filing of Unredacted Versions of Initial Complaint and Amended Complaints Where Only Heavily-Redacted Versions Were Filed
By a MetNews Staff Writer
The Court of Appeal for this district held Friday that Los Angeles Superior Court Judge Armen Tamzarian properly declined to order that unredacted copies of the complaints in a case be publicly filed and correctly determined that references to the number of another case, alluded to by the plaintiff, be unsealed.
Attorney Scott Peebles, in suing the El Segundo law firm of Simmons Hanly Conroy LLC for wrongful termination and other torts, filed his initial complaint and first- and second-amended complaints with numerous redactions and never filed an unredacted version. Peebles and Simmons—which did receive unredacted copies—agreed that the pleadings contained privileged matter.
Peebles was allegedly fired after he complained to a supervisor that the firm had committed legal and ethical breaches in pursuing asbestos litigation and that he had been asked to engaged in wrongful conduct. The case was settled and Friday’s opinion is not centered on the dispute between Peebles and the firm.
Rather, it concerns a motion by a third party, J-M Manufacturing Company, Inc., for an unsealing both of the unredacted pleadings and references to the case number of a Los Angeles Superior Court case which it believes to be that in which it was sued by a client of the Simmons firm.
Presiding Justice Dennis M. Perluss of Div. Seven said in Friday’s opinion that “[t]he sealed record rules do not apply to material never presented to the court” and that the Sept. 15, 2020 order by then-Los Angeles Superior Court Judge Susan Bryant-Deason, now retired, sealing the case number was fatally defective, and appropriately lifted by Tamzarian.
Bryant-Deason said in that order that “(1) the reference to the Case Number for the Asbestos Lawsuit at page 6 of the Court’s September 9, 2020 minute order shall be sealed: [¶] (2) the references to the Case Number for the Asbestos Lawsuit on the Court’s case docket and register of actions shall be sealed: [¶] (3) the reference to the Case Number for the Asbestos Lawsuit in any public filing between the time of [Simmons’s] filing and this order shall be redacted and sealed: [¶] (4) the transcript of Sept. 9, 2020 be sealed.”
She quoted California Rules of Court, rule 2.550(d) which provides:
“The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record;[¶] (3 A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) no less restrictive means exist to achieve the overriding interest.”
However, the judge blotted out the explanation Simmons had set forth in it its proposed order as how the requisites rule 2.550(d) were met.
On Jan. 19, 2022, Tamzarian acted on J-M’s unsealing motions. He said in the minute order:
“J-M…moves to ‘unseal’ the complaint, first amended complaint, and second amended complaint. They were never sealed. They are redacted.”
He went on to note:
“The court cannot unseal records that were never sealed.”
J-M argued that denying its motion would permit “an end run around the rules” which would “constitute a patent abuse of process,” given that the unredacted pleadings were served in it, asserting:
“A litigant cannot publicly file a secret complaint, serve the ‘real’ complaint on the defendant, and then use the threat of exposure to leverage a lucrative settlement.”
“J-M provides no supporting authority for its argument. The law does not require the plaintiff to publicly file unredacted versions of his complaints if he does not want to.”
The movant also argued that the court has the inherent power to order that Peebles file unredacted copies. The judge said:
“Assuming the court has that power, the court exercises its discretion not to exercise it. Plaintiff redacted each version of his complaint due to valid concerns that the unredacted text may reveal confidential information that he had a duty to protect. Under these circumstances, it would not be appropriate to order plaintiff to disclose the unredacted complaints.”
Unsealing Case Number
In granting the motion to make public the case number, Tamzarian provided this reasoning:
“Here, the court’s September 15. 2020. order sealing records quoted rule 2.550(d)(l)-(5) but did not specifically state the facts that support those findings….Though attorney-client privilege and an attorney’s duty of confidentiality may sometimes constitute an overriding interest that overcomes the right of public access…, it does not warrant keeping these records sealed. The sealed records are only references to a case number. At most, that case number could be a clue toward eventual disclosure of client confidences or privileged attorney-client communications. Disclosure of the case number could possibly lead to the discovery of unproven and disputed allegations about the nature or character of client confidences or privileged communications—not their actual content.” He added: “Furthermore, there is no longer any substantial probability that disclosure would prejudice the potential overriding interest. The cat is out of the bag. Keeping the records sealed cannot undo any harm done by disclosure. Any harm has already been done. J-M figured out the case number. Its moving papers include an exhibit of a document filed in this case with the case number not redacted. (Lin Decl., Ex. H. 4:9-10.) Keeping it sealed now would be futile.”
J-M appealed from the denial of its motion to “unseal” the unredacted pleadings and Simmons appealed from the order unsealing references to the case number.
In his opinion affirming both ruling, Perluss said, as to the unredacted copies of the complaints:
“Because the redacted allegations in the original and first amended complaints were never before the trial court, the sealed record rules for unsealing documents do not apply to those pleadings. It necessarily follows that the public’s right to access has not been violated because there was, in fact, full access to the documents before the court for use in adjudicating the case.
“J-M’s contention that Peebles and Simmons secretly litigated Peebles’s lawsuit based on allegations not available to the public or the court because Peebles served Simmons with the unredacted pleadings does not further J-M’s argument for requiring the court to order Peebles to file unredacted versions of those documents. The public has no right of access to communications outside of court between the opposing parties in a lawsuit, and nothing in the record on appeal suggests the redacted allegations in the original and first amended complaint were ever presented to, or relied upon, by the parties or the court in any court proceedings.”
In a footnote, he observed that “given Simmons’s assertion the redactions concerned lawyer-client privileged communications, Evidence Code section 915”—banning compelled disclosure of privileged matter—“would prohibit disclosure of the information to the court for it to determine whether the privilege applied absent a waiver or exception.”
Sealed Case Number
Addressing the order that the case number be revealed, the jurist said:
“As a threshold matter, the September 15, 2020 order sealing the case number is defective….[T]he trial court failed to state any factual findings to support sealing the number as required by rule 2.550(e). Simmons largely ignores this fatal facial defect in its briefs in this court. Having drafted a proposed order that included findings of fact, Simmons was obviously aware that those findings were necessary. Yet Simmons never moved to amend the order or otherwise cure the defect while the wrongful termination case was pending. A defective order cannot support continued sealing of the case number….
“Even if the initial order were proper, substantial evidence supports the trial court’s subsequent order unsealing the case number. Simply put (and consistent with common sense), the number assigned to a case does not reveal any lawyer-client communications or confidential information, even here when considered with the allegations in Peebles’s complaint.”
The case is Peebles v. Simmons Hanly Conroy, B318822.
Attorneys on appeal were Kirsten H. Spira, Matthew S. Hellman and Kristen Green of Jenner & Block, for Simmons; Michael von Loewenfeldt of Wagstaff, von Loewenfeldt, Busch & Radwick for Peebles; and Carrie S. Lin of Manning Gross + Massenburg and Nadia A. Sarkis of Miller Barondess for J-M.
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