In re Estate of Donna Simonds, No. 51-1-13 Wrcv (Eaton, J., Jan. 23, 2013)

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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windsor Unit                                                                                           Docket No. 51-1-13 Wrcv


In re Estate of Donna Simonds


                Decision on Administrator’s Motion to File Certain Documents Under Seal

       Administrator Ivan Simonds has filed a petition for approval of a wrongful-death
settlement that was reached following a mediation session held in December 2012. 14 V.S.A.
§ 1492(c). At issue is the administrator’s request that the settlement agreement and proposed
order of distribution be filed under seal.

         In general, all superior-court records are subject to an affirmative right of public access.
4 V.S.A. § 652(4); Vermont Rule for Public Access to Court Records § 4. And although there
are some categorical exceptions to this rule for certain kinds of documents, there are no
enumerated exceptions for petitions for approval of wrongful-death settlements. Vermont Rule
for Public Access to Court Records § 6(b). As such, the court must begin with the presumption
that all petitions for approval of wrongful-death settlements are public unless the administrator
shows “good cause specific to the case” and “exceptional circumstances” justifying an order
sealing the documents. Vermont Rule for Public Access to Court Records § 7(a); In re Sealed
Documents, 172 Vt. 152, 156–64 (2001).

        Here, the administrator argues that the petition should be sealed because the parties
agreed prior to the mediation that “all mediation communications and results would be
privileged against disclosure in accord with [the Uniform Mediation Act, 12 V.S.A. §§ 5711–
5720].” See Administrator’s Motion to File Certain Documents Under Seal, filed January 16,
2013, at 2 (emphasis added). The administrator further argues that § 5715 of the Uniform
Mediation Act “would appear not to authorize judicial discretion to leave open and not sealed,
the confidential communications/agreements of the parties resulting from the mediation.” Id.
(emphasis added). Cf. 4 V.S.A. § 652(4) (explaining that courts should not make public “any
materials or information required by law to be kept confidential”).

        A review of the Uniform Mediation Act shows that the parties were not justified in
believing that the Act would confer an evidentiary privilege upon the results of the mediation.
The evidentiary privilege established by 12 V.S.A. § 5715(a) applies only to “mediation
communications,” meaning any statement that “is made or occurs during a mediation or for
purposes of considering, conducting, participating in, initiating, continuing, or reconvening a
mediation.” 12 V.S.A. § 5713(3). In other words, the evidentiary privilege extends only to
statements that are made during the process of negotiating a settlement. The settlement itself is
not privileged. See 12 V.S.A. § 5717(a)(1) (explaining that agreements resulting from the
mediation are not privileged); see also Uniform Mediation Act § 6, Official Comment [2]
(explaining that written settlement agreements are not confidential). For this reason, the court
cannot conclude that the evidentiary privilege established by the Uniform Mediation Act
provides good cause for sealing the settlement agreement and proposed order of distribution.

        Nor is “good cause” established by the assertion that the parties agreed that the results of
the mediation should be confidential. Such confidentiality agreements may well guide the
expectations of the parties in situations where there is no need for the final written settlement to
be filed with a court. But settlement agreements involving the distribution of wrongful-death
proceeds must be presented to the court for approval under § 1492(c), and a private
confidentiality agreement between parties is not in itself sufficient to overcome the presumption
that documents presented to the court are public records. See Perreault v. The Free Lance-Star,
666 S.E.2d 352, 360–61 (Va. 2008) (holding that petition for approval of wrongful-death
settlement should not have been sealed, and explaining that “the desire of the litigants is not
sufficient reason to override the presumption of openness”). In other words, private concerns
about “the potential consequences of the financial terms of their settlements being made
public . . . do not [ordinarily] constitute sufficient reasons to seal judicial records,” at least when
stated in the abstract. Perreault, 666 S.E.2d at 360–61.

       The Rules for Public Access to Court Records require that all court records be made
public unless there is “good cause specific to the case” and “exceptional circumstances” that
would justify sealing the records. Here, the administrator has not offered a specific explanation
that would warrant the extraordinary procedure requested. For that reason, the administrator’s
request to file the documents under seal is denied.


                                               ORDER

        Administrator Ivan Simonds’ Motion to File Certain Documents Under Seal (MPR #1),
filed January 16, 2013, is denied.

        Dated at Woodstock, Vermont this 23rd day of January, 2013.


                                                        __________________________________
                                                        Harold E. Eaton, Jr.
                                                        Superior Court Judge




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