Trial Court Rules  Uniform Rules on Impoundment Procedure Rule 7: Hearing

The court may enter an order of impoundment for good cause shown and in accordance with applicable law only after a hearing, except as provided in URIP Rule 2(b)(3), URIP Rule 3(a), or URIP Rule 7(e). During the hearing, those present shall preserve the confidentiality of the material that is at issue. A record of the proceedings, including the record of any in camera hearing, shall be preserved stenographically or by a recording device. 

In determining good cause, the court shall consider all relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request. Agreement of all parties, interested nonparties, or other persons in favor of impoundment shall not, in itself, be sufficient to constitute good cause.

The court may, in its discretion, permit an interested nonparty who files a notice of appearance limited to participation in the impoundment proceeding to be heard at any impoundment hearing.

Where a public hearing may risk disclosure of the information sought to be impounded, the court may, upon a written finding of good cause, conduct in camera only that portion of the hearing that would risk disclosure. The record of any in camera hearing shall be impounded until a court orders otherwise. 

The court may, upon a written finding of good cause under URIP Rule 7(b), allow a motion for impoundment without a hearing when (1) the reason for the impoundment is to protect trade secrets or other confidential research, development, or business information, (2) the motion is by agreement or the motion is unopposed, (3) no party or other person has requested a hearing, and (4) the information does not involve an alleged or potential public hazard or risk to public safety. 

URIP Rule 7 requires the court to hold a hearing before entering an order of impoundment, except as provided in URIP Rules 2(b)(3), 3(a), and 7(e). The parties to the case have a right to be heard at the hearing. The court has discretion whether to hear from interested nonparties. See URIP Rule 7(c). 

The hearing on a motion for impoundment shall be public, unless the hearing is closed pursuant to a statute, court rule, standing order, court order, or case law. Whether an evidentiary hearing is required depends on the facts already known to the judge presiding over the ongoing proceedings. Commonwealth v. Silva, 448 Mass. 701, 709 (2007). In instances when the public hearing may risk disclosure of the information sought to be impounded, the court may conduct in camera only that portion of the hearing that would risk disclosure, and only upon subsequent entry of written findings of good cause for the in camera proceeding. Pursuant to URIP Rule 7(d), an in camera hearing is impounded until a court orders otherwise. The Supreme Judicial Court has ordered certain proceedings to be conducted ex parte, permitting limited disclosure to a party only by order of the court. See, e.g., Pixley v. Commonwealth, 453 Mass. 827, 836 n.12 (2009) (affirming an order sealing the transcript of a Martin hearing conducted in camera to verify the witness's invocation of privilege); Commonwealth v. Martin, 423 Mass. 496, 497, 505 (1996) (judge may conduct an in camerahearing of a witness to determine whether the witness's claim of the privilege against self-incrimination was properly invoked; only the witness, the witness's counsel, and the judge may be present at the hearing, the transcript of which “should be kept, under seal . . . [and] only be opened on appellate review”); Commonwealth v. Dwyer, 448 Mass. 122, 146 (2006) (privileged psychological or counseling records of an alleged victim of sexual assault were ordered to be “retained in court under seal,” but defense counsel may be permitted to access the records pursuant to a strict protective order). 

Balancing Test 

Massachusetts has long recognized a common-law right of access to case records. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 82-83 (2012), citing Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). Such case records are presumptively public documents. Id. at 83, citing Republican Co., 442 Mass. at 222-223. See also Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 631-632, 637 (1988). Impoundment is an exception to the general rule in favor of public access. Republican Co., 442 Mass. at 223, citing Commonwealth v. Blondin, 324 Mass. 564, 571 (1949). 

The court may restrict public access to case records where “good cause” is shown. Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 263 (2012). To determine whether good cause is shown, the court must balance the rights of the parties by considering all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason for the request. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County,  462 Mass. 76, 83 (2012); see also Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000); Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004). The decision to grant access to court documents is “best left to the sound discretion of the trial court,” to be exercised in light of the relevant facts and circumstances of the particular case. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978). 

Criminal Proceedings 

In the context of criminal proceedings, the public's right of access must be balanced against the defendant's constitutional right to a fair trial. Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 269 (2012), citing Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 632 (1988). While the interests balanced in criminal cases differ to some degree from those in civil cases, the factors considered by the court are similar and include whether the information has already been disclosed, the nature of the documents under impoundment, and whether there are alternatives to withholding public access, such as change of venue. In re Globe Newspaper Co., Inc., 461 Mass. 113, 121 (2011). See also Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 269 (2012), citing Boston Herald, 432 Mass. at 608, and Newspapers of New England, Inc., 403 Mass. at 632-633. The court may also consider investigative secrecy and the safety of a person or the public. See, e.g.,  New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County,  462 Mass. 76, 86, 92, 93 (2012);  Commonwealth v. Silva, 448 Mass. 701, 708 (2007). The bases above are not necessarily the only bases that might justify impounding criminal case records. See, e.g.,  New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County,  462 Mass. 76, 85 (2012) (impoundment proceedings “must take shape around the facts at hand and respond to the unique needs of the parties”). 

Trade Secret Exception 

Trade secrets and other confidential research, development, and business information are protected under Massachusetts law if certain conditions exist. See, e.g., G.L. c. 93, §§ 42 , 42A ; G. L. c. 266, § 30; Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 48-49 & n.5 (1998); Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972), S.C., 377 Mass. 159 (1979); J.T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 357 Mass. 728, 736 (1970). Where the nature of the litigation requires disclosure of such information to the court, there is generally a motion for impoundment. Such motions are rarely contested by the other parties to the litigation or by other persons, they do not generally involve information or issues of substantial interest to the general public, and hearings on them are seldom attended by nonparties or the media. Subsection (e) therefore dispenses with the hearing requirement for such a motion provided it is unopposed, no party or other person has requested a hearing, and the information does not involve an alleged or potential public hazard or risk to public safety. 

Preservation of Confidentiality of Impounded Information

During any hearing and in all filings, impounded material or the material that is the subject of a pending motion for impoundment shall not be disclosed. Confidentiality in filings and at hearings shall be preserved by using pseudonyms, redactions, or general references to the impounded information. Cf. Mass.R.A.P. 16(d). Pursuant to URIP Rule 13, upon the filing of any document containing references to matters that are impounded by court order or have been deemed impounded by statute, court rule, standing order, or case law, the movant shall contemporaneously file a written notice with the clerk, so indicating, with a copy to all parties, and clearly state on the cover of the document itself that it contains impounded information. 

Motion to be Heard 

URIP Rule 7(c) permits an interested nonparties to request to be heard in support of or in opposition to a motion filed under the URIP. For example, a media representative might seek to contest the entry of an impoundment order. This rule grants standing to such an interested nonparty to request a hearing on the issue. The court has discretion whether to schedule such a hearing or to allow the person to participate at any hearing. 

Use of Pseudonym

A party requesting leave to use a pseudonym must assert a "substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Singer v. Rosenkranz, 453 Mass. 1012, 1013 (2009) (quoting from Doe v. Bell Atl. Business Sys. Servs., Inc., 162 F.R.D. 418, 420 (D. Mass. 1995)). Permission to proceed pseudonymously should not be "lightly granted." Id. at 1014. A person seeking to use a pseudonym must separately request permission for such use in each case, including petitions under G. L. c. 211, § 3, where the party is challenging a ruling of the trial court, because permission to use a pseudonym in one case does not give a party "blanket permission to proceed pseudonymously in every case thereafter." Id. at 1014.

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