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Rule 41.1 – Sealing Documents and Settlement Agreements

May 14, 2021 | Civil Procedure, South Carolina

(a) Purpose. Because South Carolina has a long history of maintaining open court proceedings and records, this Rule is intended to establish guidelines for governing the filing under seal of settlements and other documents. Article I, ยง 9, of the South Carolina Constitution provides that all courts of this state shall be public and this Rule is intended to ensure that that Constitutional provision is fulfilled. However, the Court recognizes that as technology advances, court records will be more readily available and this Rule seeks to balance the right of public access to court records with the need for parties to protect truly private or proprietary information from public view and to insure that rules of court are fairly applied. This Rule does not apply to private settlement agreements and shall not be interpreted as approving confidentiality provisions in private settlement agreements where the parties agree to have the matter voluntarily dismissed under Rule 41(a)(1), SCRCP, without court involvement. The enforceability of those provisions is governed by general legal principles, not by this Rule.
(b) Filing Documents under seal. Should Rule 26(b)(5), SCRCP, be inapplicable, and absent another governing rule, statute, or order, any party seeking to file documents under seal shall file and serve a “Motion to Seal.” The motion shall identify, with specificity, the documents or portions of documents for which sealing is considered necessary, shall contain a non-confidential description of the documents, and shall be accompanied by a separately sealed attachment labeled “Confidential Information to be submitted to Court in Connection with the Motion to Seal.” The attachment shall contain the documents for the court to review in camera. The motion shall state the reasons why sealing is necessary, explain why less drastic alternatives to sealing will not afford adequate protection, and address the following factors:

(1) the need to ensure a fair trial;
(2) the need for witness cooperation;
(3) the reliance of the parties upon expectations of confidentiality;
(4) the public or professional significance of the lawsuit;
(5) the perceived harm to the parties from disclosure;
(6) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and
(7) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.

The burden is on the party seeking to seal documents to satisfy the court that the balance of public and private interests favors sealing the documents. In family court matters, the judge shall also consider whether documents:

1) contain material which may expose private financial matters which could adversely affect the parties; and/or
2) relate to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.

Unless otherwise ordered by the court, the clerk of court shall treat the motion to seal in a manner similar to all other motions filed with the court. The motion shall be entered in the Clerk’s File Book and on the Motion Calendar and a hearing on the motion shall be held.

(c) Sealing Settlements. A proposed settlement agreement submitted for the court’s approval shall not be conditioned upon its being filed under seal. Under no circumstances shall a court approve sealing a settlement agreement which involves a public body or institution.

Simultaneously with the filing of a motion seeking court approval of a settlement, or after a settlement has been approved, any party to the litigation may file a motion seeking to have all or part of the settlement filed under seal.

If the agreement is approved, and a motion to seal has been filed, the procedure set forth in (b) above shall be followed with the exception that the factors for sealing a settlement set forth below shall be addressed.

In determining whether to approve the filing of the settlement documents, in whole or in part, under seal, the court shall consider:

(1) the public or professional significance of the lawsuit;
(2) the perceived harm to the parties from disclosure:
(3) why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and,
(4) why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.

In family court matters, the judge shall also consider whether the settlement:

1) contains material which may expose private financial matters which could adversely affect the parties; and/or
2) relates to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.
(d) Orders Sealing Documents. All orders sealing documents or all or parts of settlements shall set forth with specificity the reasons that require they be sealed.

S.c. R. Civ. P. 41.1

Last amended by Order dated May 5, 2003.

Rule 41.1 was enacted to set forth with clarity the fact that the courts of this State are presumed to be open and to set forth with particularity when documents and settlement agreements, submitted to a court for approval, may be sealed.

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