(a) Purpose. Because South Carolina has a long history of maintaining open court proceedings and records, this Rule is intended to establish guidelines for governing the filing under seal of settlements and other documents. Article I, § 9, of the South Carolina Constitution provides that all courts of this state shall be public and this Rule is intended to ensure that that Constitutional provision is fulfilled. However, the Court recognizes that as technology advances, court records will be more readily available and this Rule seeks to balance the right of public access to court records with the need for parties to protect truly private or proprietary information from public view and to insure that rules of court are fairly applied. This Rule does not apply to private settlement agreements and shall not be interpreted as approving confidentiality provisions in private settlement agreements where the parties agree to have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP, without court involvement. The enforceability of those provisions is governed by general legal principles, not by this Rule.
Rule 41.1.Sealing documents and settlement agreements
Group VI: Trials · Last amended May 5, 2003 · Last verified July 13, 2026
In one sentenceRule 41.1 requires a party who wants a court to seal a document or a settlement to file a specific motion addressing a list of public-interest and privacy factors, reflecting South Carolina's constitutional commitment to open courts.
Full Text of Rule 41.1
(b) Filing Documents under seal. Should Rule 26(b)(5), SCRCP, be inapplicable, and absent another governing rule, statute, or order, any party seeking to file documents under seal shall file and serve a "Motion to Seal." The motion shall identify, with specificity, the documents or portions of documents for which sealing is considered necessary, shall contain a non-confidential description of the documents, and shall be accompanied by a separately sealed attachment labeled "Confidential Information to be submitted to Court in Connection with the Motion to Seal." The attachment shall contain the documents for the court to review in camera. The motion shall state the reasons why sealing is necessary, explain why less drastic alternatives to sealing will not afford adequate protection, and address the following factors:
(1) the need to ensure a fair trial;
(2) the need for witness cooperation;
(3) the reliance of the parties upon expectations of confidentiality;
(4) the public or professional significance of the lawsuit;
(5) the perceived harm to the parties from disclosure;
(6) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and
(7) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.
The burden is on the party seeking to seal documents to satisfy the court that the balance of public and private interests favors sealing the documents. In family court matters, the judge shall also consider whether documents: 1) contain material which may expose private financial matters which could adversely affect the parties; and/or 2) relate to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter. Unless otherwise ordered by the court, the clerk of court shall treat the motion to seal in a manner similar to all other motions filed with the court. The motion shall be entered in the Clerk's File Book and on the Motion Calendar and a hearing on the motion shall be held.
(c) Sealing Settlements. A proposed settlement agreement submitted for the court's approval shall not be conditioned upon its being filed under seal. Under no circumstances shall a court approve sealing a settlement agreement which involves a public body or institution. Simultaneously with the filing of a motion seeking court approval of a settlement, or after a settlement has been approved, any party to the litigation may file a motion seeking to have all or part of the settlement filed under seal.
If the agreement is approved, and a motion to seal has been filed, the procedure set forth in (b) above shall be followed with the exception that the factors for sealing a settlement set forth below shall be addressed.
In determining whether to approve the filing of the settlement documents, in whole or in part, under seal, the court shall consider:
(1) the public or professional significance of the lawsuit;
(2) the perceived harm to the parties from disclosure:
(3) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and,
(4) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.
In family court matters, the judge shall also consider whether the settlement: 1) contains material which may expose private financial matters which could adversely affect the parties; and/or 2) relates to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.
(d) Orders Sealing Documents. All orders sealing documents or all or parts of settlements shall set forth with specificity the reasons that require they be sealed.
Notes
Note: Rule 41.1 was enacted to set forth with clarity the fact that the courts of this State are presumed to be open and to set forth with particularity when documents and settlement agreements, submitted to a court for approval, may be sealed.
Amendment History
Last amended by Order dated May 5, 2003.
Plain-English Summary
South Carolina starts from the premise that court files belong to the public. The state constitution says the courts are public, and Rule 41.1 exists to keep that promise even as electronic records make files easier to find and copy. A party who wants something sealed cannot ask a clerk to keep a document out of the file on request alone; the party must file a Motion to Seal, describe the material in non-confidential terms, and submit the sensitive material itself in a separate sealed attachment for the judge to review privately. The motion has to explain why sealing is needed and why weaker options — like redacting names or filing a summary — would not protect the interest at stake.
The rule lists factors a judge weighs before sealing anything: whether a fair trial requires it, whether witnesses need protection to cooperate, whether the parties relied on an expectation of confidentiality, how much public or professional significance the case carries, and what harm disclosure would cause. The party asking for secrecy carries the burden of showing the balance tips toward sealing. In family court, judges also weigh whether the material exposes sensitive financial details or custody information that could hurt a child.
Settlements get separate treatment. A judge cannot condition approval of a settlement on sealing it, and a settlement involving a public body or institution can never be sealed. A party may ask to seal all or part of an approved settlement, using the same motion procedure, but the court weighs a shorter, four-factor list for settlements — the lawsuit's public or professional significance, the harm disclosure would cause, why an alternative to sealing won't work, and why the public interest favors sealing — dropping the fair-trial, witness-cooperation, and confidentiality-expectation factors that apply to sealing documents generally. Notably, the rule leaves alone private settlements where the parties dismiss the case themselves without asking a judge to approve anything — that kind of confidentiality clause is a contract question, not a Rule 41.1 question.
Whatever a judge decides, the order sealing a document has to spell out specific reasons. A one-line order that just says "sealed" does not satisfy the rule; the point is to leave a public record of why the public record was closed.
Frequently Asked Questions
Does agreeing to keep a settlement confidential guarantee a court will seal it?
No. Rule 41.1(c) says approval of a settlement cannot be conditioned on sealing it, and the party seeking secrecy still has to satisfy the listed factors and carry the burden of proof. A settlement involving a public body or institution cannot be sealed under any circumstances.
What has to be in a Motion to Seal?
The motion must identify the specific documents or portions at issue, give a non-confidential description of them, and come with a separately sealed attachment containing the material itself for the judge to review privately. It must also explain why sealing is necessary and why less drastic alternatives will not work.
Does this rule cover private settlement agreements the parties never bring to a judge?
No. Rule 41.1(a) says the rule does not apply to private settlements where the parties voluntarily dismiss the case under Rule 41(a)(1) without asking the court to approve anything. Whether a confidentiality clause in that kind of agreement can be enforced is a matter of contract law, not this rule.
Are family court cases handled differently?
Yes. In addition to the general factors, a family court judge must also weigh whether the material exposes private financial information that could hurt a party or touches sensitive custody issues affecting a child, and must specifically balance the child's interests.
What happens once a motion to seal is filed?
Unless the court orders otherwise, the clerk enters it in the Clerk's File Book and on the motion calendar like any other motion, and a hearing is held on it.
Does a sealing order have to explain itself?
Yes. Rule 41.1(d) requires any order sealing documents or a settlement to state with specificity the reasons that require sealing.
Source & verification. Rule text, official Notes, and amendment
history are reproduced verbatim from the South Carolina Rules of Civil Procedure,
adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. ·
Official source
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