If you have questions about divorce, legal separation, alimony pendente lite, or alimony in Connecticut, please feel free to call the experienced divorce attorneys at Maya Murphy, P.C. in Westport today at 203-221-3100 or email Joseph C. Maya, Esq. at JMaya@Mayalaw.com.

Family cases almost always involve private matters that at least one party would prefer not to make public. The prevailing trend in Connecticut disfavors sealing records and closing courtrooms. Courts must balance privacy concerns against the public interest in open judicial proceedings. However, the discovery process should still be considered fair game for confidentiality.

The U.S. and Connecticut supreme courts have held that the public right of access does not extend to “every document generated in the course of litigation” or to “raw discovery materials exchanged among parties, but not filed with the court.”  Rosado v. Bridgeport Roman Catholic Diocesan, 292 Conn. 1 (2009) (citing  Seattle Times v. Rhinehart, 467 U.S. 20, 32-33 (1984)). Nor do rights of free speech bar such an agreement, if those rights are intelligently and voluntarily waived. See  Perricone v. Perricone, 292 Conn. 187 (2009).

A confidentiality agreement often arises when the parties reach a discovery logjam. One party may object that requested information is confidential and cannot be produced. Perhaps the most typical basis for this objection is to claim confidential commercial information, but there are many other reasons to claim confidentiality. Maybe the information relates to (or needs to be kept from) minor children. Maybe it relates to one party’s health or alcohol or substance abuse problems. Maybe it would cost someone his or her job if disclosed, or maybe it would just be plain embarrassing.

The holdings of Rosado and Rhinehart suggest that a party can try to protect such information from the public eye, as long as doing so does not run afoul of the public interest in open courts. One of the reasons given in those cases against a presumption of public access to raw discovery is that it would likely provoke more intense discovery battles. A confidentiality agreement therefore serves two primary purposes: to protect the information at issue, but also to keep the flow of discovery moving.

The first consideration for such an agreement is: Who is doing it? Is it just the parties? Is there a third party (a business, a child, a paramour, etc.) involved who may be either a beneficiary of the agreement or who needs to be specifically named and perhaps be a signatory? If there is a business involved, it is generally advisable to consult with counsel for that business and to ensure that the agreement meets the requirements of the business as well as the parties. The agreement may therefore serve as a vehicle not only for discovery between the parties, but to address discovery from non-parties as well, who likely also have an interest in keeping their information confidential.

It is also important to carefully define the information which is to be considered confidential. That universe of documents and/or other information should be carefully crafted to ensure fulfillment of the intended purposes of the agreement. All discovery from a particular party or nonparty may be considered confidential, or perhaps confidentiality is limited to a particular issue. There may be a requirement that all such information must be stamped “confidential.” If certain documents have already been partially produced, it may be worth considering whether confidentiality can/should apply retroactively.

Another issue which may arise is the basis for the designation of confidentiality, and whether that can be challenged. It may be important to reserve certain rights in an agreement in order to be able to challenge a designation of confidentiality, depending on what goes along with that designation. That may defeat the purposes of a confidentiality agreement if it leaves the status of confidentiality in limbo and leads to more litigation, when those are the main problems that such an agreement is aiming to avoid.

If confidentiality is truly desired, and that is probably the main benefit to the producing party, then leaving room for the other party to continue to contest that status seems counterintuitive. As long as confidentiality is not being used to prevent access to the courts (which a judge is unlikely to allow anyway), it is questionable why it is important to be able to challenge the confidentiality designation. If the previously dubbed confidential material makes its way out into the public sphere anyway, or turns out to have never really been confidential in the first place, then why should special protections continue to adhere to it? As with any of the other scenarios described herein, though, whether particular terms are worth pursuing depends on the circumstances surrounding the negotiation of that specific agreement.

The next issue to consider is what restrictions are being agreed to regarding the confidential material. A complete nondisclosure agreement-no dissemination of anything about the case-is relatively rare, but bears consideration in the right circumstances. More likely, the restrictions will revolve around a hub of being limited to use in the litigation. There should be consideration of what is already public or information which may be learned through means outside the discovery process. The producing party may also want to consider restrictions about how the receiving party must maintain the documents, perhaps in a separate locked filing cabinet, or to be retained only by counsel with no copies made. Sometimes documents may be restricted to “attorneys’ eyes only.” The restrictions used for ethical screening may also serve as a possible template for actions which can be taken.

The (limited) set of persons who can receive the information should also be addressed in the agreement. The court and court reporters are “must-haves” on this list. There should be some method by which experts can sign on to the agreement, although counsel should be mindful to inquire of the expert (if possible) before approval of the agreement to ensure that any of the expert’s concerns are observed as well. If confidentiality is truly desired, there should also be an arrangement to include court reporters at depositions among those agreeing to keep the material confidential. There should be a provision addressing what happens if the receiving party is subpoenaed for the documents, to address whether and to what extent the producing party will receive notice of the subpoena to allow objection thereto before production.

The parties can include a protocol about how documents will be submitted to the court, but this should steer clear of anything that limits a party’s ability to litigate the matter. The parties can agree that neither will oppose attempts to seal the record and close the courtroom, and all should be mindful of the advance time frames necessary to do so pursuant to Practice Book §§ 25-59 and 25-59A. Even if the parties agree about sealing and closing, the court must still make its own determination. Agreements should tread lightly on this issue, lest a judge refuse to approve (or enforce) the agreement because of concern for the public interest. If a protocol cannot be reached, it may suffice to defer the issue and insert that the parties will work toward such a protocol, rather than doom an agreement for litigation that may never occur.

A confidentiality agreement should also spell out how long it will last. For the producing party, it is often wise to include terms allowing the agreement to survive the divorce judgment, so that it is clear it does not merge. There is also a very good question as to whether a court can, pendente lite, enter a “forever” order for confidentiality, or if that needs to be entered at final judgment in the case. For the producing party, though, how does he/she then avoid getting held over a barrel at that final judgment, where the information has already been produced and now there is little leverage left to ensure its protection in perpetuity? Even when entered at the time of divorce, it is likely within a court’s authority at a later date to revisit a “forever” requirement of confidentiality. Counsel should also be wary of clauses requiring the return or destruction of documents at the “conclusion” of the case. For a family matter, when is that exactly? After a divorce judgment, there may still be proceedings where that information is needed. Another consideration is retaining the information for a sufficient time period for all possible issues/lawsuits which may arise, including the needs of all experts.

If confidentiality cannot be achieved voluntarily, then one way to resolve that is for the parties to agree to submit competing confidentiality agreements to the court, and let the court either pick an agreement to order or let the court cobble together pieces from the different proposals. If agreement about confidentiality becomes out of the question, then a party still has recourse to ask the court to enter a protective order to preserve confidentiality under Practice Book §13-5, although that will probably not include the “bells and whistles” of an agreed-on order.

The real enforceability of confidentiality agreements remains to be determined. An attempt to include liquidated damages in the event of breach is likely to lead to some heavy negotiating. Proving not only the breach but then the extent of damages and obtaining a court order for relief may be a challenge. For an interesting discussion of this issue, see Rousseau v. Perricone, 2015 WL 2260817 (Conn. Super. Ct. April 18, 2015). The realistic chances of enforceability of an agreement must be weighed against the risks of taking another course. It is also an open question as to what extent court approval of confidentiality agreements is needed under Connecticut General Statutes §46b-66. If the parties have signed the agreement without such court approval, do they still have all their contractual remedies available, just not the ability to seek contempt? While a confidentiality agreement is by its nature an imperfect compromise, it can still help bridge the gaps necessary to move a case toward resolution.

For a free consultation, please do not hesitate to call the experienced family law and divorce attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100. We may also be reached for inquiries by email at JMaya@mayalaw.com.

---

Source: CT Law Tribune