                                                                                          12/05/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 13, 2018 Session

            TERESA KOCHER, ET AL. v. LAUA BEARDEN, ET AL.

                  Appeal from the Circuit Court for Shelby County
                   No. CT-003028-15     Rhynette N. Hurd, Judge
                     ___________________________________

                           No. W2017-02519-COA-R3-CV
                       ___________________________________

This is the second appeal in this dispute involving a third party’s attempt to obtain access
to a record that was sealed in the trial court pursuant to an agreed order. In the first
appeal, this Court explained that judicial records are presumptively open, and the reason
for sealing judicial records must be compelling. Because the trial court had not
articulated any specific reasons for keeping the record sealed, we remanded for the trial
court to reconsider its decision to deny the petitioner access to the record. We said, “If
the trial court determines on remand that the record should remain sealed due to a
compelling reason, that reason ‘is to be articulated along with findings specific enough
that a reviewing court can determine whether the closure order was properly entered.’”
Kocher v. Bearden, 546 S.W.3d 78, 87 (Tenn. Ct. App. 2017) perm. app. denied (Tenn.
Oct. 6, 2017) (quoting In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 560 (Tenn. Ct.
App. 2008)). Unfortunately, the trial court did not comply with these instructions on
remand. After repeatedly expressing disagreement with this Court’s decision, the trial
judge refused to modify the seal on the record, citing only “confidential information
pertaining to the minor plaintiff.” Because both the trial court and the appellees have
failed to articulate any compelling reason for maintaining the seal to the exclusion of the
petitioner, we reverse the order of the trial court and remand for reassignment to a
different trial judge and the entry of an order allowing the petitioner to access the sealed
record.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                    Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Andre Bernard Mathis and John Irving Houseal, Jr., Memphis, Tennessee, for the
appellant, Durham School Services, LP.
Hardin Chase Pittman, William Anderson Hampton, and R. Layne Holley, Germantown,
Tennessee, for the appellees, Laua Bearden and Sheryl Bearden.

John R. Holton, Memphis, Tennessee, for the appellees, Timothy Kocher and Teresa
Kocher.

Darryl D. Gresham, Memphis, Tennessee, Guardian ad Litem.

                                              OPINION

                              I. FACTS & PROCEDURAL HISTORY

        The underlying facts and procedural history of this dispute were adequately set
forth in this Court’s opinion from the first appeal (with original footnotes):

                The original parties involved in this proceeding were Mr. and Mrs.
        Laua Bearden (“the Beardens”) and Mr. and Mrs. Timothy Kocher (“the
        Kochers”) and their minor son. On October 23, 2014, the Kochers’
        thirteen-year-old son was riding his bicycle to school when he was struck
        by a truck driven by Mr. Bearden. On July 20, 2015, the Kochers and
        Beardens filed a “Joint Petition for Approval of Minor’s Settlement” in the
        circuit court of Shelby County. That same day, the circuit court entered an
        “Agreed Order Sealing File and Barring Public Access to Hearings.”1 The
        agreed order stated,

                This case is before the Court upon the joint requests of the
                parties to seal the judicial record of this case from public
                inspection and to bar public access to the courtroom while the
                Court hears any matters in this case[.] Having duly
                considered the contemporaneous Joint Petition for Approval
                of Minor’s Settlement and the statements of counsel for the
                parties, the Court finds the requests well-taken due to the
                sensitive nature of the evidence and factual issues before the
                Court and the privacy interests of the instant minor [ ] and his
                family[.]




1
   When documents are ordered to be filed “under seal,” it generally means that the document in question
is filed with the court clerk as part of the court’s record in the case, but the clerk and the parties are
prohibited from showing the document to anyone not a party to the lawsuit. In re NHC-Nashville Fire
Litig., 293 S.W.3d 547, 561 (Tenn. Ct. App. 2008). The sealed documents are often kept in an opaque
covering, taped shut, in the court clerk’s file, and designated as “under seal.” Id. at 562 n.7.


                                                  -2-
        The agreed order required the court clerk to seal the judicial record and
        withhold it from public access, “barring all but the parties and the Guardian
        ad Litem from accessing the record.”2

               Two months later, on September 23, 2015, the Kochers filed a
        separate lawsuit in circuit court against Durham School Services, LP
        (“Durham”), asserting claims individually and as parents, guardians, and
        next friends of their son. Durham provided school bus services to students
        at the child’s middle school. The Kochers alleged that the bus to which
        their son was assigned was negligently operated on the morning of the
        accident and left their son’s bus stop before the designated time. According
        to the Kochers, the child returned home and told his father that he was
        going to ride his bicycle to school, and he was struck by a truck before he
        reached the school. The Kochers’ complaint alleged that Durham’s actions
        proximately caused their child’s injuries and damages. The complaint
        further alleged that “there are no other persons or entities, other than
        [Durham], who are responsible, either directly or indirectly, for the injuries
        and damages to Plaintiffs herein.”

               Durham removed the lawsuit to the United States District Court for
        the Western District of Tennessee. There, Durham filed an answer
        asserting that the conduct of other persons, including the driver of the
        vehicle that struck the child, proximately caused the child’s injuries.
        Durham asserted the comparative fault of the driver, Mr. Bearden.
        Discovery ensued. Durham propounded interrogatories asking the Kochers
        to identify all documents they sent to or received from the driver of the
        vehicle (or his insurer). They also asked whether the Kochers had entered
        into any compromise or settlement with the driver. The Kochers refused to
        answer these interrogatories, claiming that such information was subject to
        a court order prohibiting disclosure. Durham also served the Kochers with
        requests for production of documents, seeking any documents exchanged
        with the driver, complaints they filed against him, or settlement agreements
        with him, but the Kochers again claimed that such information was subject
        to a court order prohibiting disclosure. Durham also asked for any
        documents filed in the circuit court case between the Kochers and the
        Beardens, but the Kochers again refused, stating that the record was “filed
        under seal.”



2
  This agreed order is the only document that appears in the appellate record from the original proceeding
between the Kochers and the Beardens. The style of the case indicates that the petition was brought by
the Kochers as parents, guardians, and next friends of their son, and as “Co–Petitioners/Plaintiffs,” and
the Beardens were designated as the “Co–Petitioner[s]/Defendant[s].”


                                                  -3-
       Durham subsequently filed a motion to compel discovery. The
motion was heard by Chief United States Magistrate Judge Diane Vescovo.
Magistrate Judge Vescovo concluded that the documents and information
sought by Durham’s interrogatories and requests for production of
documents were relevant under Rule 26(b)(1) of the Federal Rules of Civil
Procedure. However, at the time of the hearing, the agreed order sealing
the record in the Kocher–Bearden case remained sealed along with the rest
of the record, so the extent of its protection was not clear to Magistrate
Judge Vescovo or to Durham. As a result, Magistrate Judge Vescovo
directed Durham

      to first file a motion with the Shelby County Circuit Court in
      Docket No. CT–003028–15 to unseal the case to obtain the
      information and documents sought in [the discovery requests]
      and to determine if the order sealing Docket No. CT–003028–
      15 precludes the plaintiffs from responding to discovery
      requests propounded in this case, particularly as to documents
      that are not on file with the Shelby County Circuit Court,
      such as correspondence predating the filing of the Circuit
      Court case, sworn statements taken in conjunction with the
      matter giving rise to the Circuit Court case, or settlement
      agreements, if any, or to discussing the facts of the case in
      response to discovery requests or depositions.

The motion to compel discovery was denied without prejudice.

       On August 25, 2016, Durham filed a motion to intervene in the
Kocher–Bearden case in Shelby County circuit court. Durham sought
permissive intervention pursuant to Tennessee Rule of Civil Procedure
24.02 “in order to gain access to certain sealed documents filed in this
matter.” Specifically, Durham sought intervention “for the limited purpose
of seeking to unseal these proceedings to obtain information and documents
that Judge Vescovo has found are relevant to the lawsuit filed by Plaintiffs
against Durham.” Durham asserted that common questions of fact and law
existed and that its intervention would not unduly delay or prejudice the
adjudication of the rights of the original parties. Durham referenced “the
general public right of access to courts and their records.”

        Durham attached a proposed “Intervenor’s Complaint,” indicating
that it would seek an order either unsealing the record or modifying the
agreed order to allow Durham to access the information and documents




                                    -4-
       filed in the case solely for purposes of the lawsuit filed against it.3 Durham
       emphasized that it did not intend for the information to be made available
       to the general public and suggested that the “the seal can just be limited to
       the original parties to this lawsuit and Durham.” Durham also suggested
       that a protective order could be entered in federal court to prevent exposure
       of the protected information. Durham also attached to its motion to
       intervene the complaint filed by the Kochers against Durham, the answer
       filed by Durham asserting comparative fault, the Kochers’ discovery
       responses, and Judge Vescovo’s order.

               The Kochers and the Beardens opposed Durham’s attempt to
       intervene and its attempt to modify the agreed order sealing the record.
       According to the response filed by the Beardens, the original matter had
       already been concluded by a settlement that was approved by the court and
       completed by the Kochers, Beardens, and the Beardens’ insurance carrier.
       The Beardens argued that permissive intervention was prohibited because
       no question remained for adjudication in the Kocher–Bearden case. They
       claimed that Durham was attempting to inject new claims or issues in the
       case. The Beardens acknowledged the pending federal case involving
       Durham’s allegedly negligent operation of the school bus but insisted that
       no common legal or factual question existed for resolution. The Beardens
       suggested that the Kocher–Bearden case involved “a different theory of
       liability, Mr. Bearden’s negligent driving.” They also argued that
       permitting Durham to intervene would substantially prejudice the original
       parties, their insurer, and the guardian ad litem, while only furthering
       Durham’s private interest in discovery.

               The circuit court held a hearing on September 14, 2016, in order to
       consider Durham’s motion to intervene and its motion to modify the agreed
       order sealing the case. The circuit court denied both motions, stating,
       “Durham has not met its burden to establish the common legal or factual
       questions necessary to sustain permissive intervention under T.R.C.P. 24.02
       or its burden to justify modification of the Court’s prior protective order of
       July 20, 2015.” However, for the benefit of the district court, the circuit
       court judge read into the transcript the provisions of the agreed order
       sealing the record. Durham timely filed a notice of appeal to this Court.

               While this appeal was pending, the discovery disputes continued in
       district court.4 Durham filed a renewed motion to compel discovery, which
3
   Durham later filed a separate motion to modify the order sealing the record apart from its motion to
intervene.
4
  Durham filed a motion to consider post-judgment facts with regard to the order entered by the district
court. That motion is hereby granted.


                                                 -5-
      a magistrate judge granted in part, requiring the Kochers to reveal the
      monetary settlement amount that resolved their claim against the Beardens.
      The magistrate judge concluded that the agreed order from circuit court
      “only sealed from the public the following documents: the joint petition, the
      order approving the joint petition, the guardian ad litem’s report, and the
      agreed order sealing the file.” The magistrate judge’s ruling was reviewed
      and upheld by the district court judge. He concluded that “disclosure of the
      settlement amount does not conflict with the Order Sealing the Case
      entered . . . in the related Circuit Court matter” as it “made no reference to
      divulging the contents of the settlement agreement.”

             At oral argument before this Court, Durham’s attorney explained
      that the issues raised in this appeal are not moot because Durham still seeks
      access to the documents that were filed in the circuit court case and remain
      under seal.

Kocher v. Bearden, 546 S.W.3d 78, 80-83 (Tenn. Ct. App. 2017) (“Kocher I”).

       On appeal in Kocher I, we first considered whether the trial court erred in finding
that Durham was not entitled to intervene pursuant to Rule 24.02, then we considered
whether the trial court erred in denying Durham’s motion to modify the agreed order
sealing the case. Id. at 83. We found the Tennessee Supreme Court’s decision in Ballard
v. Herzke, 924 S.W.2d 652 (Tenn. 1996), instructive as to both issues:

             Ballard is procedurally analogous to this case and particularly
      instructive with regard to the issue before us. In Ballard, a newspaper and
      group of journalists filed a motion to intervene in a case for the purpose of
      requesting that the trial court rescind a protective order so that all
      proceedings and records would be open to the press and the public. Id.
      The trial court allowed them to intervene and modified the protective order.
      Id. The case eventually made its way to the Tennessee Supreme Court.
      The court first addressed the issue of permissive intervention. The court
      concluded that “third parties, including media entities, should be allowed to
      intervene to seek modification of protective orders to obtain access to
      judicial proceedings or records.” Id. at 657 (citations omitted). The court
      continued,

             In such circumstances, intervention “is not dependent on, nor
             is it determined by, the status or identification of the parties
             nor the nature of the dispute.” [citation omitted] Moreover,
             the question of intervention is collateral to, and does not have
             any bearing on, the primary issue—modification of the
             protective order. What is necessary is that the proposed


                                           -6-
                intervenor demonstrate that its claims have “a question of law
                or fact in common” with the main action.

                Here, as in all such cases, by virtue of the fact that the media
                entities challenge the validity of the protective order entered
                in the main action, they meet the requirement of Rule 24.02,
                that their claim have “a question of law or fact in common”
                with the main action.

        Id. The court explained that once a common question of law or fact is
        established, the decision to allow intervention is a matter entrusted to the
        trial court’s discretion. Id. at 658.5

                Thus, Ballard and other Tennessee cases have “firmly establishe[d]
        the right of the public, including the media, to intervene in court
        proceedings for the purpose of attending the proceedings, or for the purpose
        of petitioning the Court to unseal documents and allow public inspection of
        them.” Knoxville News–Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn.
        Crim. App. 1998). In the case before us, the proposed intervenor, Durham,
        challenges the continuing validity of the agreed order sealing the record.
        Applying the reasoning of Ballard, we conclude that Durham meets the
        requirement of Rule 24.02 of a question of law or fact in common with the
        main action. Accordingly, we disagree with the trial court’s finding that
        “Durham has not met its burden to establish the common legal or factual
        questions necessary to sustain permissive intervention under T.R.C.P.
        24.02.”

               We also disagree with the appellees’ argument on appeal that no
        question or issue regarding the protective order remained pending or
        ongoing for the trial court to adjudicate. See Ballard, 924 S.W.2d at 659
        (“Once entered, protective orders need not remain in place permanently, []
        and their terms are not immutable. It is well-settled that a trial court retains
        the power to modify or lift a protective order that it has entered.”); Autin v.
        Goetz, 524 S.W.3d 617, 630 (Tenn. Ct. App. 2017) (no perm. app. filed)
        (concluding that “the trial court’s well-settled power to modify a protective
        order extends for the life of the protective order” and “is not terminated by
        the dismissal of the underlying cause of action”). The trial court retains
        supervisory power over its files and records. Ballard, 924 S.W.2d at 662
        n.6.
5
   “A trial court abuses its discretion when it applies an incorrect legal standard, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party.” State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015) (citing
State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014)).


                                                  -7-
Id. at 83-84. In sum, with respect to the issue of intervention, this Court concluded that
Durham did not seek to inject any new claims or issues in the Kocher-Bearden case, as it
sought to intervene only for the limited purpose of modifying the agreed order to gain
access to the documents in the record, and we perceived no undue delay or prejudice to
the adjudication of the rights of the original parties if intervention was permitted. Id. at
84-85. As a result, we reversed the trial court’s decision to deny Durham’s motion to
intervene. Id. at 85.

      Next, we considered the issue of whether the agreed order sealing the record
should have been modified. We explained:

              “‘[T]he courts of this country recognize a general right to inspect
       and copy public records and documents, including judicial records and
       documents.’” In re NHC-Nashville Fire Litig., 293 S.W.3d at 560 (quoting
       Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d
       570 (1978)). “For more than a century, Tennessee courts have recognized
       the public’s right to inspect governmental records.” Tennessean v. Metro.
       Gov’t of Nashville, 485 S.W.3d 857, 864 (Tenn. 2016) (citing State ex rel.
       Wellford v. Williams, 110 Tenn. 549, 75 S.W. 948, 959 (1903)). In
       Tennessee, “[t]here is a presumption of openness for governmental
       records.” Id. The Tennessee Constitution expressly provides that “all
       courts shall be open.” Tenn. Const. Art. I, § 17. “The rule that judicial
       proceedings, including judicial records, are presumptively open is well
       established in the Constitution of Tennessee and case law.” Baugh v.
       United Parcel Serv., Inc., No. M2012-00197-COA-R3-CV, 2012 WL
       6697384, at *6 (Tenn. Ct. App. Dec. 21, 2012); see, e.g., In re NHC-
       Nashville Fire Litig., 293 S.W.3d at 571 (explaining that the permissive
       intervenor had “a presumptive right of access to documents filed in court”).
       “[T]he Tennessee Supreme Court has recognized a qualified right of the
       public, founded in common law and the First Amendment to the United
       States Constitution, to attend judicial proceedings and to examine the
       documents generated in those proceedings.” Huskey, 982 S.W.2d at 362.

              Still, the right of access is not absolute, and “[c]ourts have inherent
       power to seal their records when privacy interests outweigh the public’s
       right to know.”6 Id. at 362 n.1. Every court has “inherent supervisory

6
   In Ballard, our supreme court discussed the standards governing the issuance of a protective order in
the context of discovery pursuant to Tennessee Rule of Civil Procedure 26.03. See Ballard, 924 S.W.2d
at 658; In re NHC-Nashville Fire Litig., 293 S.W.3d at 563 (recognizing that “Ballard dealt exclusively
with discovery filed with the court and did not address protective orders on unfiled discovery”).
However, the case before us does not involve a protective order entered for purposes of discovery, as
there was no discovery between the Kochers and the Beardens. Instead, the trial court exercised its


                                                 -8-
        authority” over its own records and files. In re Lineweaver, 343 S.W.3d
        401, 413 (Tenn. Ct. App. 2010); In re NHC-Nashville Fire Litig., 293
        S.W.3d at 561. Access may be denied where court files might become
        vehicles for improper purposes, such as promoting public scandal or
        publication of libelous statements. In re NHC-Nashville Fire Litig., 293
        S.W.3d at 561.

                Protective orders strike a balance between these public and private
        concerns. Ballard, 924 S.W.2d at 658. “Protective orders are intended to
        offer litigants a measure of privacy, while balancing against this privacy
        interest the public’s right to obtain information concerning judicial
        proceedings.” Id. Any restriction on public access to judicial proceedings
        and documents “must be narrowly tailored to accommodate the competing
        interest without unduly impeding the flow of information.” Huskey, 982
        S.W.2d at 363.

                “The presumption of openness may be overcome only by an
                overriding interest based on findings that closure is essential
                to preserve higher values and is narrowly tailored to serve
                that interest. The interest is to be articulated along with
                findings specific enough that a reviewing court can determine
                whether the closure order was properly entered.”

        In re NHC-Nashville Fire Litig., 293 S.W.3d at 560 (quoting State v.
        Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985)). “Ballard is but the last in a
        line of Tennessee cases recognizing the public’s right to intervene and
        examine judicial proceedings when the public’s right to know can be
        balanced against the right of litigants to a fair adjudication of the
        substantive civil or criminal proceeding.” Huskey, 982 S.W.2d at 362.

               In sum, the reason for sealing judicial records must be “compelling.”
        Baugh, 2012 WL 6697384, at *7 (quoting In re NHC, 293 S.W.3d at 567).
        This Court has “caution[ed] trial courts not to seal records simply because a
        party requests this be done.” Warwick v. Jenkins, Habenicht & Woods,
        PLLC, No. E2012-00514-COA-R3-CV, 2013 WL 1788532, at *1 n.1
        (Tenn. Ct. App. Apr. 25, 2013). “In order to maintain public confidence in
        our judicial system it is important that litigation remain open and accessible
        to the public absent a valid reason for keeping information from the public
        eye.” Id.


inherent authority to seal its record. We find some principles enunciated in Ballard to be generally
applicable to protective orders like the one entered in this case but do not deem it appropriate to apply
Ballard’s Rule 26.03 analysis to the protective order before us.


                                                  -9-
       In the case at bar, the appellate record contains the agreed order
sealing the record “due to the sensitive nature of the evidence and factual
issues before the Court and the privacy interests of the instant minor [ ] and
his family” in addition to the trial court’s order denying modification
because Durham failed to meet “its burden to justify modification.” On
appeal, the appellees assert that this matter involves private litigants and
matters of private concern. They represent that the sealed record contains
“the Joint Petition for Approval of Minor’s Settlement; the Order
Appointing the Guardian ad Litem; the Agreed Order Sealing the File; the
Order Granting the Joint Petition; and the Report of the Guardian ad Litem,
including all exhibits.” The appellees argue that disclosure of the currently
sealed documents would result in “embarrassment and undue burden” to the
Beardens and impact their financial privacy because “insurance coverage
correlates to a policy holder’s financial net worth.” They claim that the
Kochers’ son is “a vulnerable minor” who should remain “safe from those
who might wrongfully exploit information about his settlement.” They also
argue that revelation of the sealed documents would breach the guardian ad
litem’s duty of confidentiality and “detrimentally expose the private claim-
management practices of [the Beardens’ liability insurer].”

        This Court is not privy to the documents and information in the
record that the trial court deemed appropriate to seal. As a result, we are
unable to determine precisely how or if revelation of the information would
prejudice the appellees if unsealed. Even assuming for the sake of
argument that there is a valid reason for sealing the documents from the
view of the general public, we discern no reason why Durham should be
prevented from obtaining the documents solely for the limited purpose of
defending itself in the Kochers’ lawsuit. At the same time, we recognize
that “the trial court is in the best position to weigh fairly the competing
needs and interests of the parties” when considering a protective order.
Ballard, 924 S.W.2d at 661. Due to the lack of detailed information in the
appellate record about the sealed documents and the trial court’s lack of
findings to justify the decision to deny the motion for modification of the
protective order, we deem it appropriate to vacate the trial court’s denial of
the motion and remand for the trial court to consider the issue in light of the
principles discussed in this opinion. See, e.g., Baugh, 2012 WL 6697384,
at *7 (reversing the placement of settlement documents under seal where
the trial court did not state any reason for sealing the settlement documents,
as we had “no basis upon which to determine that the reason for sealing the
records was compelling”). If the trial court determines on remand that the
record should remain sealed due to a compelling reason, that reason “is to
be articulated along with findings specific enough that a reviewing court


                                    - 10 -
       can determine whether the closure order was properly entered.” In re NHC-
       Nashville Fire Litig., 293 S.W.3d at 560 (quotation omitted).

Id. at 85-87 (one footnote omitted). On October 6, 2017, the Tennessee Supreme Court
denied permission to appeal in Kocher I.

       On remand, Durham filed an amended and supplemental motion to modify the
agreed order sealing the record. In its motion, Durham emphasized that it only sought
modification of the order to permit it to obtain the documents for the sole purpose of
defending itself in the pending federal court lawsuit filed against it by the Kochers, where
it was attempting to prove that Mr. Bearden was at fault for the subject accident. Durham
suggested that the Kochers may have taken diametrically opposed positions in the two
proceedings—alleging in the federal lawsuit that Durham was solely responsible for the
accident, while taking the position in the Kocher-Bearden proceeding that Mr. Bearden’s
negligent driving caused the minor child’s injuries. Durham noted that the federal court
had already concluded that the information sought was relevant to the federal lawsuit.
Durham also suggested that the documents would be relevant to whether the Kochers are
biased in favor of Mr. Bearden, as the Kochers and Beardens would be witnesses in the
federal case. Durham insisted that the documents would not be used for any improper
purpose and noted that it would only be permitted to use the documents in the federal
court proceeding to the extent permitted by the federal court.

       The Beardens filed a response to Durham’s amended motion to modify the agreed
order stating that they would “neither consent to nor oppose” the motion “so long as any
order granting the instant Motion” maintained the seal for all parties except Durham, the
guardian ad litem, and the original parties and further required Durham to destroy its
copies of any documents from the record once the federal lawsuit was concluded.

        The Kochers did not file a response to Durham’s motion, but their attorney and the
guardian ad litem appeared at the hearing on the motion and argued in favor of
maintaining the seal on the record. At the outset of the hearing, the trial judge stated, “So
the Court of Appeals did not agree with me, and I don’t agree with the Court of Appeals.
I’ll just say that right up front.” As an initial matter, the trial judge questioned whether
Durham was automatically entitled to access the sealed record by virtue of its
intervention in the case when the original agreed order barred “all but the parties and the
Guardian ad Litem from accessing the record.” After some argument about the issue, the
trial judge ultimately concluded that the original agreed order did not include Durham as
a party and therefore did not allow Durham to automatically access the record upon
intervention. The court then considered the substance of Durham’s motion to modify the
agreed order sealing the record.

       Durham informed the court that it only sought to access three documents in the
sealed record—the joint petition to approve the settlement, the order approving the joint


                                           - 11 -
petition, and the guardian ad litem’s report. Durham reiterated that it only sought a
limited modification to the seal to allow it to use these documents in the federal court
lawsuit filed by the Kochers. Durham explained that it intended to file the documents
under seal in federal court and noted that protective orders were already in place in the
federal court lawsuit dictating how the parties could use certain documents. Given these
measures, Durham argued that its proposed modification was narrowly tailored and that
the Kochers and Beardens would still be afforded a great deal of privacy, especially in
light of the fact that the Kochers filed the federal lawsuit putting their child’s private
matters at issue.

        The trial judge asked counsel for the Kochers whether the purpose of the seal
would be contravened in any way by Durham having access to the record. Counsel
responded, “It absolutely would.” When asked to explain, he said, “Your Honor ordered
it sealed because you did not feel the information there should go anywhere outside of the
confines of the people in the room that day it was sealed. Period.” He suggested that the
original seal was intended to protect the minor child and “the folks reporting to the
Court” with the understanding that the record would be sealed. He argued, “when a
Court decides to seal it as to the folks in that room because of the privacy interest, then I
think Your Honor has an obligation to those parties to maintain that in the face of these
type of challenges.” The trial judge said she had “no doubt about the guardian ad litem
report” because it “was written for the purpose of the Court to review and understand on
behalf of this minor child what was in that child’s best interest,” and “when it’s written
under the understanding that it’s between the guardian ad litem and the Court, then that’s
inviolate.”

        The trial judge repeatedly emphasized her disagreement with this Court, again
stating, “I don’t agree with them. I’ll just let you know that.” She said, “And it’s just
obvious to me when reading this Court of Appeals case that it assumed there was an
underlying claim somewhere. There was an underlying lawsuit somewhere. Which there
wasn’t.” She added, “there are just some assumptions that just don’t apply here,” and
also said “there just seemed to have been a lack of comprehension of the nature of what
was going on here.” The trial judge stated,

       This is a joint petition. It’s not a lawsuit. There are no allegations.
       ....
       For the record there are none. And well, I should not say there are no
       allegations. There was an accident, you know, et cetera, et cetera, but in
       terms of fault.

The trial judge said this case showed “a lack of awareness on the part of the Court of
Appeals of what a joint petition is[.]” She insisted there was no allegation of “negligent
driving” within the sealed record. Counsel for Durham suggested that the trial court
should still unseal the record in order for Durham to determine what it could use in the


                                           - 12 -
federal court lawsuit. However, the trial judge disagreed, stating, “It’s the principle of
the thing[.]” She suggested that the sealed records could not be relevant if they did not
contain “allegations of negligence.”

       The trial judge eventually announced that she was denying the motion to unseal
the record. However, she said, “If I give my reason . . . it violates the seal.” The trial
judge stated, “I’m not unsealing it for a reason that the Court deems is significant
enough[.]” She clarified, however, that her reasoning had “nothing to do with the
Beardens” and “nothing to do with the parents’ taxes or income or money. . . . It has to do
with [the minor]. And nobody needs to know it.”

        The trial court entered a written order incorporating the transcript by reference.
The order referenced “[t]he interests of the original parties to this action [] in ensuring
that the confidential information pertaining to the minor plaintiff not be disclosed” and
found that “the contents of that file create a compelling interest in maintaining the seal as
to the private and confidential information contained therein.” The court also said that
the file did not contain “any allegation of negligence or fault what-so-ever on the part of
the Beardens for the injuries to this child.” As such, the court found that “the interests of
the original parties is a compelling interest” that would outweigh any interest Durham
had in seeking access to the file. Durham timely filed a second notice of appeal to this
Court.

                                II.      ISSUES PRESENTED

       On appeal, Durham presents the following issues for review:

1.     Whether the trial court erred in denying Durham’s amended motion to modify the
       order sealing the case; and

2.     Whether the trial court erred in determining that Durham was not a “party” to the
       underlying proceeding.

For the following reasons, we reverse and remand for further proceedings.

                                      III.   DISCUSSION

                                              A.

       We begin with the second issue presented by Durham on appeal—whether the trial
court erred in determining that Durham was not a “party” within the meaning of the
original agreed order. The trial judge raised this issue sua sponte at the hearing on
remand, suggesting that if Durham became a “party” to the proceeding by virtue of
intervention, Durham would be “covered” by the original agreed order, and “that means


                                             - 13 -
that there doesn’t need to be any request for seeing the file because you are now parties.”
Counsel for the Kochers suggested that according to the trial court’s reasoning, “then I
can intervene in any case I want, [and] once I’m in, I can see the record.” The trial judge
agreed, stating, “it has exactly the effect that you’re suggesting, that if a case is sealed
and someone wants it unsealed, all they have to do is file a motion to intervene for the
purpose of unsealing.” After hearing argument from counsel, however, the trial judge
decided against this theory and held that the original agreed order did not include Durham
as a party and therefore did not allow Durham to access the record.

       We agree with the trial court’s ultimate conclusion. “When interpreting a trial
court’s order, ‘we ascertain the intent of the court, and, if possible, make the order in
harmony with the entire record in the case and to be such as ought to have been
rendered.’” Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 73 (Tenn. Ct. App.
2016) (quoting Byrnes v. Byrnes, 390 S.W.3d 269, 277 (Tenn. Ct. App. 2012)). The
original agreed order referenced “the joint requests of the parties to seal the judicial
record” and barred all but “the parties and the Guardian ad Litem from accessing the
record,” but Durham was not a party at that time, so the agreed order was not intended to
encompass Durham.

       We also reject the suggestion that permitting intervention under these
circumstances automatically allows the intervening party to have access to the sealed
record. “‘[T]he permissive intervenor fall[s] somewhere in the gray area between
spectator and participant. . . . [T]he intervenor’s mere presence in an action does not
clothe it with the status of an original party.’” In re NHC-Nashville Fire Litig., 293
S.W.3d at 572 n.26 (quoting Harris v. Amoco Prod. Co., 768 F.2d 669, 675 (5th Cir.
1985)). As we explained in Kocher I, “‘third parties . . . should be allowed to intervene
to seek modification of protective orders to obtain access to judicial proceedings or
records.’” Kocher, 546 S.W.3d at 83 (quoting Ballard, 924 S.W.2d at 657) (emphasis
added). However, in such circumstances, “the question of intervention is collateral to,
and does not have any bearing on, the primary issue—modification of the protective
order.” Id. at 83-84 (quoting Ballard, 924 S.W.2d at 657).

                                            B.

       We now consider the remaining issue raised by Durham—whether the trial court
erred in denying Durham’s amended motion to modify the agreed order sealing the
record. We review the trial court’s decision on such a matter for an abuse of discretion.
Ballard, 924 S.W.2d at 659; In re NHC-Nashville Fire Litig., 293 S.W.3d at 560.
“‘Discretionary decisions must take applicable legal principles into account.’” Gooding
v. Gooding, 477 S.W.3d 774, 779 (Tenn. Ct. App. 2015) (quoting BIF, a Div. of Gen.
Signals Controls, Inc. v. Serv. Const. Co., Inc., No. 87–136–II, 1988 WL 72409, at *2
(Tenn. Ct. App. Jul. 13, 1988)). “When the courts refer to an abuse of discretion, they are
simply saying that either the discretion reposed in the lower court judge was not


                                           - 14 -
exercised in conformity with applicable guidelines or the decision was plainly against the
logic and effect of the facts before the court.” Id. (quotation omitted). “‘[D]iscretionary
choices are not left to a court’s inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.’” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)
(quoting Martha S. Davis, Standards of Review: Judicial Review of Discretionary
Decisionmaking, 2 J. App. Prac. & Process 47, 58 (2000)). Thus, an abuse of discretion
will be found when the trial court “fails to properly consider the factors on that issue
given by the higher courts to guide the discretionary determination.” Id.

       This Court thoroughly explained in Kocher I that judicial records are
presumptively open, that the public has a qualified right to examine documents generated
in judicial proceedings, and that a permissive intervenor has a presumptive right of access
to documents filed in court. 546 S.W.3d at 85. At the same time, we recognized that
records may be sealed when privacy interests outweigh the public’s right to know. Id.
For example, we noted that access may be denied where a court file might become a
vehicle for improper purposes, such as promoting public scandal or publication of
libelous statements. Id. at 86. Still,

       Any restriction on public access to judicial proceedings and documents
       “must be narrowly tailored to accommodate the competing interest without
       unduly impeding the flow of information.” Huskey, 982 S.W.2d at 363.

              “The presumption of openness may be overcome only by an
              overriding interest based on findings that closure is essential
              to preserve higher values and is narrowly tailored to serve
              that interest. The interest is to be articulated along with
              findings specific enough that a reviewing court can determine
              whether the closure order was properly entered.”

       In re NHC-Nashville Fire Litig., 293 S.W.3d at 560 (quoting State v.
       Drake, 701 S.W.2d 604, 607-08 (Tenn. 1985)).

Id. On appeal, Durham asserts that the trial court failed to articulate with any specificity
a compelling reason for the judicial records to remain under seal. We agree.

       The trial court’s order after remand does not articulate any overriding or
compelling interest “with findings specific enough that a reviewing court can determine
whether the closure order was properly entered.” Id. The trial court made clear that its
order was not based on any financial interest of the Beardens or Mr. and Mrs. Kocher.
She simply said that it was “a reason that the Court deems is significant enough,” adding,
“It has to do with [the minor]. And nobody needs to know it.” The trial court’s similarly
generic reference in its written order to “confidential information pertaining to the minor



                                           - 15 -
plaintiff” does not allow us to determine whether the closure order was warranted.
Instead, we are left to wonder about the reason for the trial court’s decision.

       In Ballard, our supreme court explained that “[t]o facilitate effective appellate
review, trial courts should articulate on the record findings supporting its decision,” but
“[i]n appropriate cases, the trial court may deem it necessary to seal that portion of the
record which contains its findings, for in some circumstances, the court’s open
articulation of its findings would compromise the protective order.” 924 S.W.2d at 659.
The trial court could have followed this procedure on remand if it believed that it could
not sufficiently articulate its rationale with any more specificity.

       The appellees have not articulated any justification to warrant maintaining the seal
on the record either. On appeal in Kocher I, the appellees simply asserted that the
Kochers’ child was “believed to remain a minor and thus vulnerable to those who might
wrongfully prey upon his financial assets from his settlement.” However, that concern
does not justify the trial court’s decision under the circumstances of this case. Durham
does not seek to allow public access to the judicial record. It only seeks to utilize the
documents in the federal court lawsuit filed against it by the Kochers subject to any
protective orders entered by the federal court. Even when the Kochers’ attorney was
asked on remand to specify how it would contravene the purpose of the seal if Durham
was allowed limited access to the record, counsel did not articulate any specific reason
beyond “protect[ing] the minor child” and “the folks reporting to the Court.” As we said
in Kocher I, “Even assuming for the sake of argument that there is a valid reason for
sealing the documents from the view of the general public, we discern no reason why
Durham should be prevented from obtaining the documents solely for the limited purpose
of defending itself in the Kochers’ lawsuit.” 546 S.W.3d at 87. The agreed order can be
modified in a way that is narrowly tailored to protect the minor from those who might
wrongfully prey on his assets while at the same time permitting Durham to access and
potentially use the records in federal court.

       The trial court did find that the minor’s unspecified interest in his “confidential
information” outweighed any interest Durham had in seeking to access the record
because the joint petition for approval of the settlement, given its inherent nature, did not
contain any “allegation of negligence or fault” on the part of the Beardens. The trial
judge initially suggested that there were no allegations of negligence in the sealed record,
“none,” but then added, “well, I should not say there are no allegations. There was an
accident, you know, et cetera, et cetera, but in terms of fault.” The trial judge suggested
that the sealed records could not be relevant if they did not contain “allegations of
negligence.” Counsel for Durham disagreed, suggesting that it should nevertheless be
permitted to examine the records and determine whether they could be used in the federal
court lawsuit. We agree with Durham on this point. This Court is keenly aware of the
nature of a joint petition to approve a minor’s settlement. However, even the appellees
have acknowledged in a brief to this Court that in the Kocher-Bearden proceeding, “the


                                           - 16 -
Kochers alleged a [] theory of liability, Mr. Bearden’s negligent driving, and more
importantly the Kochers so alleged only in a nominal sense, by way of factual
background, merely to enable the Trial Court to consider and approve the minor’s
settlement.” The fact that the sealed documents may not contain strict “allegations of
negligence or fault” does not mean that Durham has no interest in reviewing them. As
we noted in Kocher I, “[t]he Tennessee Supreme Court has recognized a qualified right of
the public, founded in common law and the First Amendment to the United States
Constitution, to attend judicial proceedings and to examine the documents generated in
those proceedings.” Id. at 85 (quoting Huskey, 982 S.W.2d at 362) (emphasis added).
The fact that this proceeding was in the nature of a joint petition to approve a settlement
does not exempt it from review.

        On appeal, the appellees argue that this Court applied the wrong legal standard in
Kocher I when we said that “‘the reason for sealing judicial records must be
compelling.’” Id. at 86 (quoting Baugh, 2012 WL 6697384, at *7). The appellees
suggest that the “compelling” interest standard originated in In re NHC-Nashville, 293
S.W.3d at 566, and that it only applies if the underlying record to be sealed contains a
dispositive motion. They acknowledge that this Court in Kocher I quoted the
aforementioned language directly from the Baugh case (which in turn quoted In re NHC-
Nashville), and Baugh applied the compelling interest standard when reviewing a trial
court’s decision to seal minor settlement documents. However, the appellees suggest that
Baugh was also wrongly decided and that Baugh, as an unreported decision, “is not
legally sufficient to support a holding that the compelling-interest standard applies to this
case.” According to the appellees, “the explicit reasoning of In re NHC-Nashville []
cannot be ignored and clearly predicates the compelling-interest standard on very specific
criteria: a dispositive motion or other adjudication of the substantive merits of the case,
especially in cases implicating public safety.” The appellees argue that the Kocher-
Bearden case did not involve a dispositive motion, and therefore, the compelling interest
standard does not apply. We disagree.

       The language originally used by the Court in In re NHC-Nashville was as follows:

               [The appellant] rightly emphasizes that the sealed documents were
       filed in connection with a dispositive motion. A number of courts have
       determined that sealing documents filed in connection with a dispositive
       motion requires a compelling reason. See Kamakana v. City and County of
       Honolulu, 447 F.3d 1172,1179 (9th Cir. 2006); Rushford v. New Yorker
       Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Dreiling v. Jain, 151
       Wash.2d 900, 93 P.3d 861, 867 (2004). This is “because the resolution of a
       dispute on the merits, whether by trial or summary judgment, is at the heart
       of the interest in ensuring the ‘public’s understanding of the judicial
       process and of significant public events.’” Kamakana, 447 F.3d at 1179



                                           - 17 -
        (quoting Valley Broad. Co. v. U.S. Dist. Court for Dist. of Nev., 798 F.2d
        1289, 1294 (9th Cir. 1986)).

               Moreover, the court must consider whether the information sought to
        be shielded from public view is “important to public health and safety.”
        Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.1995); see also
        Brown & Williamson Tobacco v. FTC, 710 F.2d 1165,1180 (6th Cir. 1983).
        Here, of course, the subject matter of the litigation related to public health
        and safety, because it arose out of a nursing home fire that resulted in
        multiple deaths.

               The authority cited by [the appellant] underscores that there must be
        a compelling reason to seal judicial records filed in connection with a
        dispositive motion, especially on an issue of public safety, and that the
        burden for showing such a compelling reason is on the party who seeks to
        prevent public access to the public records.

In re NHC-Nashville Fire Litig., 293 S.W.3d at 566-67 (emphasis added). We said that
the intervenor had “a presumptive right of access to documents filed in court, particularly
documents filed in connection with a dispositive motion.” Id. at 571 (emphasis added).

       As the cases we cited demonstrate, some jurisdictions, such as the Ninth Circuit,
have distinguished between sealing records containing “dispositive” motions and those
containing “nondispositive” motions, applying a “compelling” reason standard to
dispositive motions and a “good cause” standard to nondispositive motions. See, e.g.,
Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir.) cert. denied
sub nom. 137 S. Ct. 38, 196 L. Ed. 2d 26 (2016). However, even in courts that follow
such a rule, the joint petition to approve the settlement in this case would be deemed a
“dispositive” motion subject to the compelling interest standard.7 See, e.g., Hefler v.
Wells Fargo & Co., No. 16-CV-05479-JST, 2018 WL 4207245, at *7 (N.D. Cal. Sept. 4,

7
   The Ninth Circuit recently clarified its dispositive/nondispositive approach and rejected the notion that
the “compelling reasons” test only applies if the motion was “literally dispositive.” Ctr. for Auto Safety,
809 F.3d at 1098. Under such a narrow approach, “the public would not be presumed to have regular
access to much (if not most) of the litigation in federal court, as that litigation rarely falls into the narrow
category of ‘dispositive.’” Id. “Most litigation in a case is not literally ‘dispositive,’ but nevertheless
involves important issues and information to which our case law demands the public should have access.”
Id. The court reiterated that the compelling reasons test applies to most judicial records, and “public
access will turn on whether the motion is more than tangentially related to the merits of a case.” Id. at
1101. The Ninth Circuit also summarized some of the approaches taken in different circuits and noted
that two circuits “directly reject a literal divide between dispositive and nondispositive motions.” Id. at
1100. The Sixth Circuit differentiates between discovery materials and adjudicative materials, stating that
the line between the two “is crossed when the parties place material in the court record.” Shane Grp., Inc.
v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016). “Only the most compelling
reasons can justify non-disclosure of judicial records.” Id. (quotation omitted).


                                                    - 18 -
2018) (“Preliminary approval of a settlement is an issue more than tangentially related to
the merits of the case, and therefore the ‘compelling reasons’ standard applies.”); Estate
of Levingston v. Cty. of Kern, No. 1:16-CV-00188-DAD-JLT, 2017 WL 4700015, at *1
n.1 (E.D. Cal. Oct. 19, 2017) (concluding that a petition for approval of a minor’s
settlement was a dispositive motion subject to the compelling reasons standard because it
would dispose of the claims at issue); Johnson v. Bank of Am. NA, No. CV-16-04410-
PHX-JJT, 2017 WL 9988653, at *1 (D. Ariz. May 30, 2017) (“[T]he material the parties
seek to seal in whole appears in a settlement agreement that the Court must by law review
and approve. It is hard to imagine a document more core to the disposition of this matter.
If upon review, the Court rejects the settlement agreement, the matter continues; if it
approves the agreement, the matter will be disposed. . . . A showing of compelling
reasons to seal the entire document is thus required[.]”); Hall v. Cty. of Fresno, No. 1:11-
CV-2047-LJO-BAM, 2016 WL 374550, at *5 (E.D. Cal. Feb. 1, 2016) (“the parties’
settlement motion is a dispositive motion for sealing purposes”); M.F. v. U.S., No. C13-
1790JLR, 2015 WL 630946, at *2 (W.D. Wash. Feb. 12, 2015) (“The ‘compelling
reasons’ standard applies to this motion because approval of the minor settlement
agreement is dispositive of the proceeding.”)

       We express no opinion as to the correctness of the appellees’ suggestion that some
lower standard would apply if we were in fact considering a motion to unseal a record
that contained only a “nondispositive” motion.8 We simply conclude that Kocher I was
correct to apply the compelling reason standard utilized by the courts in Baugh and In re
NHC-Nashville considering the nature of the record at issue in this case.

        Under Tennessee law, the presumption of openness that applies to judicial
proceedings and judicial records “‘may be overcome only by an overriding interest based
on findings that closure is essential to preserve higher values and is narrowly tailored to
serve that interest.’” In re NHC-Nashville Fire Litig., 293 S.W.3d at 560 (quoting Drake,
701 S.W.2d at 607-08). Despite having multiple opportunities—in the original agreed
order, the first order denying Durham’s motion to unseal the record, and the second order
denying Durham’s amended motion on remand—the trial court has failed to articulate
any overriding or compelling interest that would justify denying Durham limited access
to the sealed record under the circumstances of this case. The appellees have failed to
offer any compelling reason either, during the hearings below or in their arguments to
this Court. Unlike in the first appeal, the sealed documents are now contained within the
appellate record. We have carefully reviewed the sealed documents and discern no
overriding or compelling interest that would overcome the presumption of openness or
indicate that closure is essential to preserving higher values. As a result, we reverse the
trial court’s order denying Durham’s amended motion to modify and remand for entry of
8
   In Raines Bros., Inc. v. Chitwood, No. E2015-01430-COA-R3-CV, 2016 WL 3090902, at *10-11
(Tenn. Ct. App. May 24, 2016), this Court cited both the good cause analysis and the compelling reasons
standard when reviewing a trial court’s decision to seal documents filed in connection with a motion for
attorney’s fees.


                                                 - 19 -
an order granting the motion and permitting Durham to access the sealed record for use in
connection with the federal court lawsuit filed by the Kochers. See Baugh, 2012 WL
6697384, at *7 (reversing the placement of settlement documents under seal where the
trial court did not state any reason for sealing the settlement documents, as we had “no
basis upon which to determine that the reason for sealing the records was compelling”).
On remand, the presiding judge of the 30th Judicial District is directed to assign this case
to a different trial judge.

                                   IV.    CONCLUSION

      For the aforementioned reasons, the decision of the trial court is reversed and
remanded. Costs of this appeal are taxed to the appellees, Laua Bearden, Sheryl Bearden,
Timothy Kocher, and Teresa Kocher, for which execution may issue if necessary.


                                                    ______________________________
                                                    BRANDON O. GIBSON, JUDGE




                                           - 20 -
