Section 11-20A.Sealing Files or Limiting Disclosure of Documents in Civil Cases

COMMENTARY—2003: The public and press enjoy a right of access to attend trials in civil as well as criminal cases. See Nixon v. Warner Communications, Inc. , 435 U.S. 589, 597–608, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). The guarantee of open public proceedings in civil trials applies as well to the sealing of court documents. See Publicker Industries, Inc. v. Cohen , 733 F.2d 1059, 1070–71 (3d Cir. 1984). See also the Commentary to Section 42-49A. Motions to seal or limit the disclosure of affidavits, documents or other materials in cases on the complex litigation docket shall appear on the regular short calendar for the purpose of providing notice to the public. As regards the use of pseudonyms set out in subsection (h) of this section, it is clear that such use generally runs afoul of the public’s right of access to judicial proceedings. Does I Thru XXIII v. Advanced Textile Corp. , 214 F.3d 1058, 1067 (9th Cir. 2000). ‘‘Though not as critical as access to the proceedings, knowing the litigants’ identities nevertheless tends to sharpen public scrutiny of the judicial process, to increase confidence in the administration of the law, to enhance the therapeutic value of judicial proceedings, and to serve the structural function of the first amendment by enabling informed discussion of judicial operations.’’ (Internal quotation marks omitted.) Doe v. Burkland , 808 A.2d 1090, 1097 (R.I. 2002). ‘‘[M]any federal courts . . . have permitted parties to proceed anonymously when special circumstances justify secrecy. . . . In [the Ninth] [C]ircuit, [parties are allowed] to use pseudonyms in the ‘unusual case’ when nondisclosure of the party’s identity ‘is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.’ United States v. Doe , 655 F.2d 920, 922 n.1 (9th Cir. 1981) . . . .’’ (Citations omitted.) Does I Thru XXIII v. Advanced Textile Corp. , supra, 214 F.3d 1067–68. In Does I Thru XXIII v. Advanced Textile Corp. , supra, 1062, the plaintiffs filed suit under pseudonyms against their employers alleging multiple violations of the Fair Labor Standards Act. The court concluded that in determining whether to allow the use of pseudonyms, the trial court must consider the severity of the plaintiffs’ threatened injury, the reasonableness of their fears and their vulnerability to retaliation. Id., 1068. In Doe v. Frank , 951 F.2d 320, 322 (11th Cir. 1992), the plaintiff, a government employee challenging government activity, was denied permission to proceed under a pseudonym which he sought due to his alcoholism. The court concluded that a plaintiff should be permitted to proceed anonymously only in ‘‘exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.’’ Id., 324. The need for anonymity must outweigh the presumption of openness. ‘‘The privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest.’’ See Buxton v. Ullman , 147 Conn. 48, 60, 156 A.2d 508 (1959) (parties who were medical patients of named plaintiff were allowed to use pseudonyms due to intimate and distressing details alleged in complaint regarding prevention of contraception), appeal dismissed sub nom. Poe v. Ullman , 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961). Connecticut trial courts applying the Buxton holding have concluded that permission to proceed anonymously may be appropriate in situations involving social stigmatization, real danger of physical harm, or risk of an unfair trial. Doe v. Diocese Corp. , 43 Conn. Supp. 152, 158, 647 A.2d 1067 (1994) (plaintiff was allowed to proceed anonymously in action against defendants for past sexual abuse). Courts have generally concluded that there must be a strong social interest in concealing a party’s identity, but the possibility that a litigant may suffer some embarrassment, economic harm, or loss of reputation have been found not to be sufficiently overriding interests to justify anonymity. ABC, LLC v. State Ethics Commission , Superior Court, judicial district of New Britain, Docket No. CV-00-050407S (October 11, 2000). In Doe v. Connecticut Bar Examining Committee , 263 Conn. 39, 818 A.2d 14 (2003), the plaintiff sought to proceed anonymously in an action against the defendant in connection with the defendant’s failure to recommend the plaintiff for admission to the bar. The Supreme Court, in determining that the use of a pseudonym in this case should be left to the discretion of the Superior Court, stated: ‘‘Because lawsuits are public events . . . a plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature. . . . A plaintiff’s desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity.’’ (Citation omitted; internal quotation marks omitted.) Id., 70. HISTORY—2005: Prior to 2005, the third sentence of subsection (d) read: ‘‘The time, date, scope and duration of any such order shall forthwith be reduced to writing and be signed by the judicial authority and be entered by the court clerk in the court file.’’

COMMENTARY—2005: As used in subsection (a) above, the words ‘‘Except as otherwise provided by law’’ are intended to exempt from the operation of this rule all established procedures for the sealing or ex parte filing, in camera inspection and/or nondisclosure to the public of documents, records and other materials, as required or permitted by statute; e.g., General Statutes §§ 12-242vv (pertaining to taxpayer information), 52-146c et seq. (pertaining to the disclosure of psychiatric records) and 54-56g (pertaining to the pretrial alcohol education program); other rules of practice; e.g., Practice Book Sections 7-18, 13-5 (6) through (8) and 40-13 (c); and/or controlling state or federal case law; e.g., Matza v. Matza , 226 Conn. 166, 627 A.2d 414 (1993) (establishing a procedure whereby an attorney seeking to withdraw from a case due to his client’s anticipated perjury at trial may support his motion to withdraw by filing a sealed affidavit for the court’s review). The above amendment to subsection (d) establishes a mechanism by which the public and the press, who are empowered by this rule to object to pending motions to seal files or limit the disclosure of documents in civil matters, will receive timely notice of the court’s disposition of such motions. General Statutes § 51-164x (c) gives any person affected by a court order sealing a file or limiting the disclosure of a document in a civil action the right to the review of such order by filing a petition for review with the Appellate Court within seventy-two hours from the issuance of the order. HISTORY—2012: In 2012, at the beginning of the second sentence of subsection (j), ‘‘notice of such motion being placed on’’ was substituted for ‘‘copy of,’’ before ‘‘the short calendar.’’ Also, in that same sentence, ‘‘page containing the aforesaid section’’ was deleted, after ‘‘short calendar.’’

COMMENTARY—2012: The above amendment is intended to provide for the electronic filing and processing of documents and orders, and the maintenance of court records, where the present terminology, filing requirements or processes that are applicable in a paper environment result in confusion or redundancy when applied to an electronic environment. HISTORY—2018: What is now the final sentence was added to subsection (g).

COMMENTARY—2018: The change to this section clarifies that a party requesting the approval of the judicial authority to use a pseudonym must lodge the original documents identifying the party or parties by name with the clerk of the court.