Proposed Rule 38, SCRCP,
Sealing Documents and Settlement Agreements

(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. 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 private information from public view.  Further, the Court recognizes that, especially in the case of settlement agreements, the parties may, by contract, agree to settle any matter confidentially, and have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP, without court involvement.

(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 and shall not be filed.  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 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. 

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.

(c) Sealing Settlements.  No settlement agreement filed with the court shall be sealed pursuant to this Rule.

(d) Orders Sealing Documents.  All orders sealing documents shall set forth with specificity the reasons that require sealing the documents.