Sealing of Civil Records

Record sealing allows a court to enter information or evidence into a case file without making that record public. Open records are critical to maintaining public accountability in our judicial system; therefore, we should closely examine how record sealing is used. Sealing is important in maintaining the confidentially of medical records, the identities of assault victims, and certain types of business documents which are disputed in civil suits. However, sealing could also be used to protect a company or individual from public consequences and further prosecution. Many observers have claimed that sealing is a serious or even growing problem. A recent article about sealing in the journal of the American Bar Association cautioned against "an increasingly pervasive secret justice system that allows well-heeled or famous litigants to make private use of public courts," (John Gibeaut, “Secret Justice,” A.B.A. Journal (April 1998), p. 50.)

Unfortunately, claims about perceived problems with sealing tend to be based on anecdotes rather than careful examination. Studying pre-trial proceedings is particularly challenging because the court system does not record aggregate numbers or trends. The study of sealed records is even more difficult since the subject matter is, by definition, inaccessible. A solution lies in examining what is accessible--how often sealing occurs, in what types of cases is it used, how the sealed material is identified in the public record, and how the decision to seal is justified. This study examines these issues in Providence Superior Court civil cases from 1993 through 1999. Unfortunately, inadequacies in the public documentation of the record sealing process impede a full examination of whether sealing is being appropriately used in our courts.

Laws, Court Rules, Procedural Guidelines, and Common Practice

Title 38 of Rhode Island General Law, "Public Records," also known as the "Open Records Law," makes all records of state agencies public unless specifically exempted. Civil court records and proceedings are therefore public by default; however, records may be sealed under certain circumstances. Superior Court Rule 26 (see Appendix B) allows, "upon motion by a party or the person from which discovery is sought…the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." "Any order" may include sealing the records of the information sought. Rule 26 gives judges almost complete authority to determine when it is appropriate to seal a court record. There is no law or court rule requiring a public record of what was sealed and why it was sealed.

In addition to Rule 26, there are several laws that describe specific types of documents that may or must be sealed. Rhode Island General Law (RIGL) 6-41-5 governs trade secrets or information relating to competitive practices of business litigants. The law states that the judge is obligated to use reasonable means to protect confidentiality, including granting protective orders, holding in camera inspections and hearings (which take place in the judge's chambers), sealing records of an action, and ordering relevant parties not to disclose specific trade secrets. These records may include client lists, sales tactics, or any other trade information of a competitive nature that would be harmful to the company if publicly known.

The law dealing with sealing of records in cases concerning children is the most comprehensive. Generally, the Department of Children, Youth, and Family (DCYF), which is involved in all cases of abuse or neglect, cannot release any information regarding the child involved in a case. There are, however, a dozen exceptions in which the details of a case may be disclosed to protect or benefit the child. These exceptions include access for agencies that are involved with the medical or psychological care of a child or for persons in charge of placing the child in a living arrangement (RIGL 42-72-8).

Court records must be kept confidential in child molestation cases and every state or local government agency must protect this confidentiality. However, the defendant may "make application to the trial court for an order of disclosure…to prepare for his or her defense" (RIGL 11-37-8.5). A dual filing system (see Appendix A) was created in 1998 to deal with child molestation cases. This system requires that a redacted version of the file (without the victim's name) be made available to the public while the complete record remains sealed. For cases filed before July 20, 1998, there was no dual filing system in place. Therefore, these cases are completely confidential (in accordance with RIGL 11-37-8.5). When an individual requests information about one of these cases, he must submit a motion to compile a public, redacted version of the file (Administrative Order No. 28-12). According to a memo from Superior Court Chief Judge Rodgers dated October 30, 1997, when an individual wishes to get information on a child molestation sexual assault case, "the clerk's office may verbally indicate defendant's name and the disposition of the case, but nothing further." To obtain any further information, an individual must file a motion requesting a redacted version of the case.

There is also a significant law about confidentiality in health care communications in court (RIGL 5-37.3-6). The law states that any individual has the right to keep his physical or mental condition confidential, that a physician may keep a medical examination confidential, and, if necessary, that these files may be reviewed by judges in camera.

Procedurally, the courts and clerks follow the Court Rules of Practice, which detail the manner in which records should be filed, sealed, and otherwise handled. Memos from the Deputy Administrator to the clerks provide additional sealing guidelines, clarifying policy and procedural techniques.

Method of Identification and Investigation of Case Files

Sealed records, the sealing process, and public access to information about sealing were investigated through careful examination of civil cases between 1993 and 1999 in which records have been sealed. An electronic database of docket entries, which are records of each action in each case, was searched in order to identify cases in which sealings occurred. The public computers in the Superior Court clerk's office allow retrieval of dockets for individual cases, but cannot search docket text of all cases or identify all cases containing a particular type of action. For this study, we obtained a version of the docket database that allowed us to search docket text. Without such a database, this study and similar studies of trends in the frequency of civil actions would be impossible to perform.

Even with this database, searching proved to be an extremely difficult process because the docket codes for sealing-- "MSR" (motion to seal records) or "OSR" (order to seal records)--are rarely used, and the text of the docket entries in sealed cases is inconsistent. Searches of more than 31,000 total cases (years 1993 to 1999) for keywords such as "sealed," "sealing," "confidential," and "filed in registry vault" identified 87 cases containing sealed records.

We were able to obtain 74 of these cases, each of which was examined thoroughly and information about each case was recorded, including any available information regarding what type of record(s) in the case had been sealed, why a record had been sealed, who had initiated the sealing process, and any motions, orders or stipulations that were filed relating to the sealing. Appendix C is a summary chart of our findings for each case.

Findings I: Difficulties in Identifying Cases Containing Sealed Records

The Providence County Court Clerk's office is responsible for keeping public records for Providence Superior Court cases. There are several serious impediments to public access caused by the current record keeping system. These problems are particularly significant for attempts to examine large numbers of cases, as this study does.

Docket Sheets

All civil cases have a docket sheet which records information about the case, including a record noting all motions, orders, and actions. The docket sheet is stored on the clerk's office computer system, actions are added as needed, and a printout is usually included as the first item in a case file. The docket is the primary source of information about a case and is accessible on the public computers in the Providence Superior courthouse. After some confusion about whether docket sheets of entirely sealed cases were public, the clerk's office has determined that they are public and will provide printouts upon request.

However, many of the docket printouts that are included with case files are out of date and do not include the most recent actions in a case. Up-to-date docket sheets are available for viewing on the public computers in the clerk's office. The clerks will usually provide a printout of the up-to-date docket upon request.

The most significant problem with the design of the docket system is that the docket header -- which lists the names of the plaintiffs and defendants, their lawyers, the case number, filing date, and other identifying information-- does not include information about the physical location of a case file. Normally, cases that were filed in the past seven years are stored at the Providence Superior Court and older cases are stored in the Records Center in Pawtucket. Cases in active use or in appeal to the Rhode Island Supreme Court may not be available. The most recent docket entries often provide some indication of whether a case is currently active. However, there is no specific field that lists the location of a file, and we identified four inactive cases that were not available at the Superior Court or the Records Center. (See Appendix D) Clerks at both locations were unable to locate these files. Because of the lack of information provided on the docket, it is unclear whether these cases have been lost, misplaced, or perhaps entirely sealed. That files can go missing without record is a significant flaw in the filing system, particularly considering the relatively low security at both record-storage locations. Sealed records are occasionally stored in sealed envelopes attached to public case files. In many situations, it would not be difficult for a member of the public to remove records (including sealed records) from a case file without the knowledge of the clerks. It would be theoretically possible to determine that something had been removed because the docket entry corresponding to the record would remain in the court computers, however, in most instances, a missing document from a non-current case would not be noticed or easily recovered.

Index Card Database

The clerk's office uses index cards to keep track of sealed records stored in the registry vault on the sixth floor of the courthouse. Each sealed item that is filed in the vault has a card that identifies what has been sealed and what case it is creating the most complete database of cases with sealed itemsin both criminal and civil cases. The card system is not entirely inclusive, however, because in several cases records are literally sealed in envelopes and included in the case file itself, rather than stored in the vault. The Superior Court Clerk has estimated that the cards list roughly 450-475 sealed items for the years 1993-1999. In addition to these 450-475, there are a small number of records that have been sealed in the case file itself, which by our estimation, would bring the total number of items sealed in civil and criminal cases from 1993-1999 to approximately 500.

Because the index cards are the only real database of sealed records and the cards may be more comprehensive than the list of cases generated through our database search, we requested in April that the clerk's office generate a list based on the cards of case files that have items sealed. After some debate regarding whether this information could be made public, the Superior Court Administrator agreed in May (see Appendix E) to generate a list of docket numbers of cases containing sealed records. As of October 20, this list has not been made available and the clerk's office has stated that they do not intend to compile it within the next few months.

We were also informed by the Court Administrator that the Rhode Island Judicial Systems and Sciences (RIJSS) will "develop a program which will have the capability to compile a list of cases in which either the entire case file or a portion thereof has been sealed." The Court Administrator did not provide a timeline for the creation of such a program. Based on our knowledge of the inconsistent nature of existing court records regarding sealing, we suspect that it will be impossible to develop a program that can retroactively identify all existing cases with sealed records. However, a program that would compile a database of cases as sealings occur would be feasible and desirable. Information about existing sealed records could be manually entered into such a database.

Inconsistent Record Keeping

Beyond the structural weaknesses of the records system, inconsistent record keeping, human error, and a lack of clear procedural guidelines further hamper public access to records. The missing records described previously may be an example of poor record keeping, but the information system makes it difficult to determine where fault lies.

Each type of case action has a corresponding docket code, but the codes for sealing are not often used. "OSR" and "MSR" ("Order to Seal Record", "Motion to Seal Record") were used in only 2 of the 74 docket sheets we examined. In the majority of cases sealing was coded as "Order to Enter" or simply "Other" -- identifications which provide no real indication of the type of action, making searches for sealed entries difficult. In addition to the fact that the code system is often not used, the accompanying docket text that describes records being sealed is extremely inconsistent. Examples of typically varied docket entries for sealed items can be seen in Figure 1.

Figure 1: Examples of Docket Entries that Involve Sealing

Finally, many of the clerks are not fully informed about the public access laws. On several occasions, clerks refused to provide printed copies of docket sheets for cases that were sealed, claiming that the docket was also sealed. The head clerk has since determined that all dockets are public record. Any docket can be read on the public computers in the clerk's office. The clerks do, however, take sealing very seriously and go to great lengths to keep information such as medical records or victim identities secret. Very few of the cases we examined had records inappropriately available. The only major failures to protect confidential records discovered in this study occurred in several child molestation cases from 1993 in which the copy of the judgment in the public record included the names of the victims, which had been ordered redacted. We did not see this type of error after 1993. The sincere and largely successful efforts of the clerks to protect confidential records would be more effective and would provide an appropriate level of public access if a better organizational system were put in place.

Figure 1: Examples of Docket Entries that Involve Sealing

Findings II: Information that is Available about Cases with Sealed Records

Once cases containing sealed records were identified, case files were studied to determine how much information is made available about what has been sealed and to learn how sealing is commonly used. Motions and stipulations are the most common way that requests for record sealing are submitted to judges, who must approve any sealing, and therefore provide the primary source for information about sealings.

Common Sealing Procedure

The most common procedure for sealing any court record, including an exhibit, affidavit, or entire case file, is a motion to seal from the plaintiff or defendant. In many cases the motion to seal takes the form of a motion for a protective order with a request to seal included. A written motion is standard, but there may be oral motions in some instances. An oral motion might occur during arguments in court, often as a way of settling evidence admissibility disputes.

The motion to seal is submitted to the judge, sometimes with a memorandum of support, and is either approved, granting the sealing, or denied, keeping the record public. If the motion is granted, the clerks are instructed to seal the record or file and store it in a vault. Records are also occasionally stored in sealed envelopes within the public case file. Sealings also occur when both parties agree that a record should be sealed and submit a joint stipulation to seal. Stipulations are routinely approved by judges.

Motions to Seal

Of 87 cases identified, thirteen were not available for examination (see "The Docket System," above). Of 74 cases studied, 32 cases contained a motion to seal from either the plaintiff or defendant. In almost all of these 32 cases, what type of record was sealed is identified in the motion or can be inferred from other available information. Fourteen of these 32 cases were criminal injury compensation cases where anything with the plaintiff's name is sealed -- the majority of these were cases involving a sexually abused minor. Five cases sealed trade secrets or a business' financial information. Eight cases sealed some type of medical records or health care information.

Two cases, however, contained sealed information without any indication of what had been sealed. In Brackett v. Town of North Providence (PC1999 4101), it is easy to infer what had been sealed in the file. The plaintiff had been denied entrance to the North Providence firefighter school despite his high exam scores. All of the files were unsealed on September 13, 1999, when the judge made his decision. The files, which were the test scores of Brackett and others, were kept secret to protect the confidentiality of the selection process and applicants. In a personal injury case, Doe v. Devaney (PC1997 4774), the plaintiff alleged that she was molested by the defendant when she was a special education student at his high school. There is an order included to let the plaintiff, a minor, proceed anonymously, which suggests that the sealed information might consist of documents containing her name or identifying her in some way. Both of these cases seem to be appropriate instances of sealing. However, in both cases, judges should have made an effort to inform the public of their action, even, as in Brackett v. Town of North Providence, if the judge planned on unsealing the information later.

Although most of the motions to seal did contain descriptions of the sealed portions, those descriptions are not always sufficient for accountability. The descriptions of what has been sealed, in cases that do not involve minors or criminal injury compensation, are not usually more specific than the category descriptions listed above. In corporate lawsuits, for example, the type of information that is sealed is described in very general terms, often "trade secrets" or "confidential business information." Descriptions such as these seem to be far more vague than is necessary to protect the information that has been sealed. Concord Health Services, Inc. v. Quattrucci (PC 1999 1897), provides a more detailed motion specifying that a client list has been sealed. This provides enough information to understand why a sealing is justified because a dispute over proprietary use of the client list was the basis of the suit. This slightly more specific description does a better job of informing the public without undermining the purpose of the sealing and should serve as a model.

In an effort to understand what reasons judges find acceptable to justify sealing records, we examined arguments made in motions. Unfortunately, in addition to extremely vague descriptions of what has been sealed, the majority of cases do not contain an argument for the sealing. In the few cases that do give reasons for sealing other simply citing a law, arguments generally take two forms. First, that a document should be sealed because public awareness will harm a party in the case. Second, that a document should be sealed because it contains information that affects another court case. The former argument is usually vague or implicit and does not specify how public knowledge will harm a party in the case. In Torpey v. Perel (PC 1994 3086), the plaintiff argued that sealing of medical records is necessary so that she will not "unduly suffer embarrassment, annoyance, or oppression." Another argument for sealing was given in a motion to seal in a child molestation case that occurred before the modern dual filing system was developed. The plaintiff in Doe v. State (PC 1994 1613) argued for sealing of records identifying her name on the grounds that "Jane Doe, AKA R.E.H., would likely be injured by public awareness that she is the child referred to in the complaint."

Two motions we examined make specific arguments that harm might result to the plaintiff if information is not sealed. In both of these cases, plaintiffs asked for sealing to appease a defendant whom they considered dangerous. The plaintiff in one case (PC 1993 0909) obtained a restraining order against a stalker and asked for the case to be sealed "in an effort to avoid embarrassment of or otherwise inflame the defendant." In Narragansett Electric Co. v. Santos (PC 1995 0841), a motion for sealing was filed on the basis that one of the plaintiffs "no longer wishes to prosecute this action against the defendant because of fear of retaliation by the Defendant," and seeks to protect his identity. Narragansett Electric alleged that Santo made 220 threatening phone calls to the company, and one of the individual plaintiffs did not want to be identified to Santos. The company asked for a restraining order against Santos, but the case was dropped and the motion to seal was rejected.

Generally, sealing appears to be something both parties accept (also see discussion of stipulations, below). In only four cases was sealing challenged by opposing counsel (see Figure 2) and in two of these a compromise was reached and the sealing was granted.

Stipulations to Seal

Joint stipulations are less common than motions as a method of requesting sealing. Nine cases were identified where sealing was initiated by stipulation. Stipulations usually provide some information about what is sealed, but rarely provide any reason for why it should be sealed. One stipulation explains that the parties had agreed in a contract before the trial to keep the information secret and that their contract should not be broken. None of the cases examined had stipulations that were denied by the judge. Although only a small number of stipulations were identified in this study, their form and the fact that they were never denied suggests that there is little or no demand by the Court for justification of the proposed sealing when it is jointly requested.

Cases Without Motions or Stipulations Available

Twenty-eight cases of the 74 cases examined have neither a motion nor a stipulation in the case file. There are several possible explanations for these cases. The motion or stipulation might have been sealed along with the information that was requested to be sealed. One could identify this as a possibility if the docket sheet listed a motion. However, if a motion was made orally in open court, it would not necessarily be listed on the docket. (In one possible scenario, a lawyer might object to a document being produced in discovery. If she loses the objection, she might motion to have the document sealed once it is produced, and that motion could be made during the hearing on the motion for production of documents.) Another possibility is that a judge could resolve a dispute over production by compelling production and ordering sealing without a motion for sealing by either party.

Orders to Seal

A final avenue for providing public accountability is the judge's order to seal, however, these are the least likely to explain what is sealed and why. While orders were present in 43 of 74 cases, they almost never gave a reason for sealing or provided information not already present in a motion or stipulation. This likely occurs because orders are most often prepared by lawyers and signed, but not written, by judges. While motions may give a sense of what arguments lawyers find viable for sealing, judges' orders almost always simply allow or deny the sealing request without comment.

In only two cases did we find that judges had denied a motion to seal. One was a motion to seal a judgment, the other was a motion to seal an entire case file. When motions are denied, no court order is produced, so there is nothing in the court file explaining why the judge denied the motion to seal. Because of this we have no way of knowing judicial opinion on the more specific harm arguments made in PC 1993 0909 and PC 1995 0841, where motions to seal were denied.

Entirely Sealed Cases

The entire case file was sealed in seven of the cases that we identified (see Figure 3). In these cases, we were able to obtain the docket sheet but none of the exhibits or records within the case. The docket sheets provided the case type, the parties involved, the decision, and entries for each motion. It is not clear why any of these cases are entirely sealed. In several of the entirely sealed cases, it appears that information might be sealed to protect the anonymity of the plaintiff, as in Doe v. Woonsocket School Dept. (PC1999 4270), a personal injury case, and Doe v. Roe (PC1995 1143), an assault and battery case. One contract damages case was dismissed and then sealed, possibly in order to protect the contract practices of the defendant (Doe v. Blue Cross Blue Shield, PC 1997 0508). It is, however, less clear why information was sealed in Gregoire v. Donnelly (PC1997 1955), an assault and battery case; in Gimbel v. Votta (PC 1994 3239), a legal malpractice case; and in Women and Infants Hospital v. Almeida (PC1997 5177), an injunctive relief case. In all three of these cases, the public might have a particular interest in knowing the facts of the case, especially if the case finds someone financially liable for assault and battery or legal malpractice. The last entirely sealed case is Warwick Fraternal Order of Police v. City of Warwick (PC1998 3292). There is no evidence in the docket as to why the case was sealed.

We were not allowed to view motions or orders used to seal these case files because they had been sealed along with the rest of the case. Public disclosure of motions and orders to seal could be easily accomplished in a way that preserves appropriate confidentiality while providing some measure of public accountability. The way most individual records and all entirely sealed cases are handled, with no public information explaining their sealing, makes the sealing process difficult to examine and hampers the public accountability system envisioned by Rhode Island law.

Sealed Cases Concerning Minors

Under the dual-record keeping system described in the laws section above, the clerks do not consider cases concerning minors to be "sealed" in the strict sense, though they are marked 'confidential' and stored separately. Therefore, cases filed under this system are not included in our database and do not have corresponding index cards.

Conclusions and Proposals

This study indicates that a very limited number of records are sealed in Superior Court civil cases. We found 87 cases with sealed items since 1993, out of a total of 31,000 cases. We were able to closely examine 74 of these. Our examinations suggest that when sealings do occur, the types of cases and circumstances surrounding the sealing imply that records are being sealed appropriately. Medical records, trade secrets, and information involving minors are the most common types of information that are sealed. Most sealings are initiated by motions that are rarely challenged by the opposing party or by stipulations that are rarely (if ever) denied by judges. There appears to be little consideration of the public interest in open records when sealing is requested. Furthermore, public sources of information specifying what has been sealed and why are few and inconsistent. The current system allows judges a great deal of discretion to determine what is appropriate to seal, but makes it difficult for members of the public to learn how judges are exercising that discretion due to the lack of public information about these decisions.

These conclusions can only be drawn with some qualification due to the barriers in identifying cases with sealed records that we encountered throughout the study. We were unable to obtain the list of cases with sealed items from the clerk's index card database and therefore cannot be confident that the 87 cases we identified include all cases with sealed records. The inconsistency of the docketing leads us to believe that there are many cases with sealed records that we were unable to identify. One of the cases we examined, for example, only mentioned the word sealed when the record was unsealed -- meaning that the record had originally been sealed without a docket entry. Additionally, once cases with sealed records were identified, the lack of publicly available information about the sealed records and reasons for sealing forced us to infer most of what we learned from case context. The cases we examined seemed to contain appropriate uses of sealing, but it is possible that serious abuses could be occurring that we were unable to detect, particularly in cases that are entirely sealed.

We have not attempted to draw conclusions about trends over time in the use of sealing because of our severe access limitations. The number of sealings we examined was fairly constant in most years but, inexplicably, we found only four instances of sealing in all of 1995.

Of most concern is the apparent indifference toward the principle of open and accessible records. Cases are often missing, records are sealed without explanation and docketed inconsistently. It is possible that cases with sealed records exist in which there is no indication that sealing occurred. These problems impair public access to records and create the potential for abuse. Fortunately, they can all be addressed in ways that protect the confidentiality of the records that are sealed, and provide sufficient levels of public information regarding the use of sealing in the courts.

Many of the problems of accountability in the sealing process seem to arise largely because when a sealing is requested, the opposing counsel has little reason to challenge it because they will have access to the information during the case, regardless of whether it is sealed from public view. Therefore, the opposing party does not provide a check for public accountability, as it often does in other domains. Accountability, in the form of public reporting mechanisms, must then either be legislated or consistently required by judges.

Rhode Island law or an Administrative Order should require that each time a record is sealed, information is available in a public case file indicating what has been sealed and why it was sealed to the highest degree of specificity that does not compromise the confidentiality of the information. The level of specificity can be left to the judge's discretion, but the requirement for consistent public reporting appears necessary to uphold the spirit of the Open Records Law. Requiring that a uniform statement containing this information be produced each time sealing is proposed or allowed would greatly increase public accountability.

Additionally, the State should develop a uniform method of identifying cases that contain sealed records. This would be most easily accomplished by consistent use of the docket codes for record sealing. The Court Administrator has informed us that a searching system that will accomplish this goal is under development. The State should also consider restructuring the docket system to provide accurate information about where a case file is physically located and to allow the public to more fully search docket entries.

Sealed records should be, and are, unusual in Providence Superior Court civil cases. However, the importance of open records in maintaining accountability in all government functions demands a higher level of accessibility to information regarding record sealing than currently exists. Records are only appropriately sealed when it does not threaten the public interest to do so. The burden of justifying record sealing in a clear and accessible way should fall on the parties, lawyers, and judges that request and allow public information to be kept confidential.

Appendices

Appendix A

The Superior Court rules of practice govern how molestation cases are to be handled.
Rule of Practice 3.3 is "Matters not for publication" which states:

"Whenever a child victim is identified in any child molestation sexual assault case filed on or after July 20, 1998, a dual filing system shall be established for that case. During the prosecution and disposition of such a case, a "public file" and a "confidential court file" shall be maintained. The public file shall contain the charging document…with the name and identifying information of the child victim redacted. "Redaction" is defined as the obliteration of victim-identifying information in the documents placed in the public file. The name and address of the victim shall be redacted along with any familial-identifying information such as the relationship, if any, between the child victim and the accused. A fictitious name may be substituted for the victim's actual name. Such redaction or substitution shall be carried out by the party placing the material on file, eg. The Office of the Attorney General in criminal cases and the plaintiff…in related civil suits…shall submit two versions of each document to be placed on file: one version…redacted…and a second version of the same file, unredacted…
The public file shall not include in any form, redacted or otherwise, victim-specific documents relating to the child victim that are otherwise confidential in accordance with statute or policy."

Appendix B

Superior Court Rule of Practice 26, Part (c)

Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the disclosure or discovery not be had;
(2) That the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) That certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the court;
(6) That a deposition after being sealed be opened only by order of the court;
(7) That a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and
(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
In ruling on a motion for a protective order the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

Appendix C

Cases Examined

Appendix D

Unavailable Identified Cases

* As of date of fieldwork (Winter/Spring 2000)

Appendix E

Official Response