Lead Opinion
for the Court:
¶ 1. In this interlocutory appeal, Ford Motor Company (Ford) wishes to preserve a confidential settlement agreement between it and the Estate- and wrongful-death beneficiaries of Brian Cole (the Coles). The case on appeal is a separate action between the Coles, their attorneys, and among the attorneys themselves regarding expenses, a contingency-fee agreement, and a fee-sharing agreement. The chancellor denied Ford’s “Motion to Preserve Confidentiality of Settlement Agreement” and “Notice of Intent to Seek Closure of Proceedings and Sealing of Documents.”
¶ 2. Aggrieved, Ford raises three issues:
I.Whether the settlement agreement is a public, judicial record or a private contract, which should be enforced.
II. Whether the state’s policy encouraging settlement agreements and the parties’ interest in abiding by the terms of that agreement are sufficient grounds to protect the settlement from public scrutiny.
III. Whether there is any overriding public interest which would require disclosure of the terms of the settlement agreement.
We find that the settlement agreement is between private parties, does not involve issues of public concern, and is unnecessary to resolve the parties’ disputes. Thus, the chancery court erred, in part, by denying Ford’s motions.
FACTS AND PROCEDURAL HISTORY
¶ 3. In 2001, Brian Cole and Ryan Cole, cousins, were returning to Mississippi from Florida. During the drive, Brian’s Ford Explorer Sport rolled over, injuring Ryan and resulting in Brian’s death.
¶ 4. Thereafter, Gregory Cole, Brian’s brother, opened an estate and initiated a wrongful-death action against Ford. After two mistrials, the third trial resulted in a jury verdict against Ford. Before the trial proceeded to the punitive-damages phase, Ford and the estate reached a settlement agreement, which Ford contends is contingent upon the confidentiality of its terms.
¶ 5. Wayne E. Ferrell Jr., an attorney for the Coles, filed a separate action— “Petition for Accounting, Apportionment of Fees and Expenses and Declaratory Judgment and Request for Injunctive Relief’— in the Chancery Court of Jasper County and named Ford and other plaintiffs’ counsel as respondents. Several attorneys filed jointly an answer and cross-claim. Based on the filings, the attorneys were at odds regarding the expenses incurred by each and the ■ terms of their fee-sharing agreement. The Coles and the attorneys
¶ 6. Before the fee-dispute trial, Ford filed a motion “to preserve the confidentiality of the settlement agreement between Ford and the Estate and other plaintiffs.... ” In its motion, Ford sought “to preserve the confidentiality of the settlement agreement, including the amount paid in settlement.” During the first hearing on the matter, the chancery court expressed its personal preference:
The confidentiality of the settlement is going to be an issue that I will need to address at some point. The fact that the parties agree that the settlement is confidential doesn’t make it so. I’ve got to have a good reason to do that. So, we will talk about that later. I’m just putting everybody on notice that the truth is I don’t normally do that. I have, but it’s not standard operating procedure.
Then, the chancery court instructed Ford to amend its motion, setting forth specific methods by which the terms of the settlement agreement could remain confidential. Afterwards, the parties reached an agreement regarding undisputed funds and asked the court to sign an order which allowed disbursal of the undisputed amounts and directed the order be temporarily under seal. Then, Ford filed its supplemental motion. In addition to requesting that the court preserve the confidentiality of the settlement terms, Ford requested that the court permanently seal the order allowing for disbursal of the undisputed funds — which revealed various amounts to be disbursed — and “any other documents setting forth information revealing, either directly or indirectly, the terms of the settlement agreement.” Ford requested specifically that:
[A]ny documents submitted to the Court and any orders of the Court which would reveal in any way the terms of the settlement agreement should be sealed and should remain so. In addition, Ford requests that the upcoming trial of this matter, or any other hearing in which specific amounts of distribution of funds are to be discussed, be closed to the public and the transcripts of such proceedings sealed.
Ford’s motions went unopposed. Also, Ford and the Coles filed a joint motion requesting the chancery court to file the order under seal until it determined whether it should remain sealed. In agreement, the chancery court filed the order under seal until further notice.
¶ 7. Prior to the second hearing, Ford filed its “Notice of Intent to Seek Closure of Proceedings and Sealing of Documents.” The chancellor denied Ford’s motion. The court noted that the sealing of trial-court records is within its discretion and that, because the parties asked the chancellor to review the terms of the settlement agreer ment, the public had a right to access the records and court proceedings. The chancellor also stressed the judiciary’s duty to conduct business in the open. Relying on the Public Records Act, the chancellor determined that the public’s right to access trumped the state’s policy favoring settlement agreements, stating that:
[Proceeding charily, this Court is of the opinion that Ford Motor Company haswholly failed to establish any overriding, compelling reason to overcome either the common law or constitutional presumption of public access to judicial records. In balancing the factors favoring secrecy against the common law presumption of access, this Court cannot find that the interest of Ford Motor Company in keeping this settlement secret outweighs not only the right of the public to access, but the duty of the judiciary to conduct its business in the open, in the'light of day, beyond reproach and without any interference of impropriety or favoritism.
Accordingly, the court denied Ford’s motions to maintain the confidentiality of the settlement agreement, to seal the records, and to close the proceedings.
¶ 8. Ford sought a stay of the court’s order pending the results of an interlocutory appeal. The chancellor granted the stay. Ford filed an interlocutory appeal, which this Court granted on August 31, 2011. In response, Ferrell and Nobles (the Attorneys) filed an appellee’s brief, supporting the chancellor’s rulings.
ANALYSIS
I. Standard of Review
¶ 9. The parties do not agree on the appropriate standard of review. Because the chancery court found that it lacked authority to seal the documents absent a rule or statute, Ford contends this ruling is an error of law and should be reviewed de novo. Conversely, the Attorneys argue that whether to seal judicial records is within the court’s discretion; thus, it should be reviewed for an abuse of discretion.
¶ 10. In certain cases, trial courts must seal records to protect information. See, e.g., Miss.Code Ann. §§ 25-61-9 (Rev. 2010) (limiting public access to trade secrets and confidential commercial or financial information); 43-21-261 (Rev.2009) (limiting disclosure of youth-court records). No statute or rule requires confidentiality in this specific case. But parties may request that the trial court seal certain documents. And the trial court may, in its discretion, limit the public’s access to those records. See Miss.Code Ann. § 25-61-11 (Rev.2010). .
¶ 11. Whether the court has authority to limit the public’s access to judicial records is a question of law and, thus, is reviewed de novo. See In re Adoption of Minor Child,
II. Preserving the Confidentiality of the Settlement Agreement
¶ 12. Ford wants the order approving the settlement agreement kept under seal, and Ford contends that the settlement agreement should not be admitted into evidence during the fee-dispute proceedings. If the settlement agreement is admitted into evidence, Ford wants any mention of the settlement amount redacted from pleadings and the trial transcript and
A. Public Access to Public Records
¶ IS. The settlement agreement itself is not yet a part of the record. But Ford is concerned that the settlement amount can be discerned from the chancellor’s order, which approves the settlement agreement. According to Ford, the chancery court erred when it ruled that the order was a public record, denying its motion to preserve the confidentiality of the settlement agreement. Ford argues that the settlement agreement is a private contract, which should be sealed.
¶ 14. Conversely, the Attorneys argue that it is within the chancellor’s discretion whether to seal judicial records, and under the Public Records Act, the settlement agreement should be available to the public. The Attorneys also maintain that Ford must “make a particularized showing of a need for confidentiality, including whether the unsealed documents will result in significant harm to either party,” which the chancellor found Ford failed to do.
¶ 15. If the settlement agreement were filed with the chancery court, it could be subject to the Public Records Act. See Miss.Code Ann. §§ 25-61-1 to 25-61-17 (Rev.2010). The Act provides that “[i]t is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act.” Miss.Code Ann. § 25-61-1. Court filings are considered to be public records, unless otherwise exempted by statute. Pollard v. State,
¶ 16. However, parties may file documents under seal, and the Act does not conflict with the court’s authority to declare a public record confidential or privileged. Specifically, Section 25-61-11 addresses exempt or privileged records, providing that:
The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at th'e time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.
Miss.Code Ann. § 25-61-11 (emphasis added). Thus, Ford’s contention is correct. A court may, within its discretion, determine if nonexempt matters should be declared confidential or privileged, removing those records from public disclosure.
B. Policy Favoring Settlement
¶ 17. The chancellor determined that Ford had not established “any overriding compelling reason to overcome either the common law or constitutional presumption of public access to judicial records.” Ford argues that the state’s policy favoring settlement was enough to overcome that presumption, and the chancellor erred by not considering it. The Attorneys maintain that the chancellor did take this into consideration, but the court, in its discretion, ruled in favor of the public’s right to access.
¶ 18. Although Mississippi law favors public access to public records, “public policy [also] favors the out-of-court compro
[CJompromise reached by way of mediation or otherwise, is favored in the state of Mississippi. Moreover, the law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the agreement which the parties have made, absent any fraud, mistake, or overreaching.
Chantey Music Publ’g., Inc. v. Malaco, Inc.,
¶ 19. Generally, confidentiality helps facilitate settlement and, in turn, conserves judicial and private resources. Hasbrouck v. BankAmerica Housing Serv.,
In fact, confidential settlement agreements are likely in the long run to best serve the interests of the public and the parties alike: “[WJhatever the value of disclosure, it should not obscure the strong public interest in, and policy objectives furthered by, promoting settlement.”. Thus, “absent special circumstances, a court should honor confidentialities that are bargained-for elements of settlement agreements.”
Grove Fresh Distrib., Inc. v. John Labatt Ltd.,
C. Balancing Test
1. Public v. Private
¶ 20. These cases favor the public’s right to access. In State Farm, several media outlets sought to unseal the settlement agreement and transcript of proceedings between State Farm and the Mississippi Attorney General. State Farm Fire and Cas. Co. v. Hood,
¶ 21. The Attorneys also cite Marcus v. St. Tammany Parish School Board,
¶ 22. Ford cites a similar Fifth Circuit case. In this case, the district court sealed the transcript and settlement agreement between the parties. SEC v. Van Waeyenberghe,
¶ 23. The chancery court failed thoughtfully to consider the status of the parties involved in this suit. State Farm, Marcus, and SEC all involve public entities and matters of greater public concern; Ford’s case does not. “If a case involves private litigants, and concerns matters of little legitimate public interest, that should be a factor weighing in favor of granting or maintaining an order of confidentiality.” State Farm,
2. Respecting Confidential Filings
¶ 24. Our appellate courts respect confidential filings. Mississippi Rule of Appellate Procedure 48(A) provides that:
Any case filed with the clerk of the Supreme Court and Court of Appeals which was previously closed to the public by action of the trial court or which by statute is subjected to restriction on access to the public in the trial court by statute, shall be closed to public access in the appellate courts and shall be treated as a confidential case by the clerk of the appellate courts.
M.R.A.P 48(A). In Braddock Law Firm, PLLC v. Becnel,
Because this case involves the settlement of cases,, the Court has granted the parties’ request to enforce the confidentiality agreement between the clients, Attorneys, and defendant manufacturer. Pursuant to the agreement, the names of the clients and the defendant manufacturer and the terms of settlement will remain confidential.
Id. Braddock is similar to Ford’s case. Both cases were settled out of court; those settlements contained confidentiality clauses; and the lawyers later sued each other regarding their fee-splitting agreements. In respecting the parties’ confidentiality agreement, the Court of Appeals was able to resolve the lawyers’ dispute without divulging the terms of the settlement.
¶ 26. Ford does not contend that all settlement agreements should remain confidential. It recognizes a public interest in some cases. Ford states, for example, that hundreds of claims regarding pollution of drinking water would concern the public as a whole and, thus, should not remain confidential. But, as we mentioned, no matter of great public concern exists in this case. We also find the settlement agreement is not needed to resolve the parties’ claims.
3. Relevance
¶ 27. On appeal, the Attorneys argue that the settlement agreement goes to the heart of their petition; thus, the chancellor properly refused to preserve its confidentiality. However, during this Court’s oral argument on the matter, the Attorneys did not take issue with preserving the confidentiality of the settlement amount. Ford claims the settlement agreement is irrelevant to the fee-dispute claims and, thus, is unnecessary to resolve the dispute. We agree.
¶ 28. In Bank of America v. Hotel Rittenhouse Associates,
¶ 29. But in Ford’s case, the terms of the settlement agreement are not in dispute. The parties quibble over separate issues — expenses, the contingency-fee agreement, and the fee-sharing agreement — none of which has anything to do with the terms of the settlement. No other public interest favors disclosure of the settlement amount. As succinctly stated in this federal-court case:
The Court agrees with the Plaintiff that the settlement amount should remain confidential. The “amount” has no bearing on this case and would serve no purpose except to prejudice the Plaintiff. The settlement agreement was signed by all parties and specified it would be “confidential as to amount.”
Cooper Tire & Rubber Co. v. Farese, et al., No. 3:02CV210-SA,
¶ 30. The contingency-fee and fee-sharing agreements can be (and must be) resolved by mention of percentages. The
D. Relief
¶ 31. This case has been tried three times previously, so the record of those trials is available to the public. Ford wishes to preserve the confidentiality of the settlement agreement, specifically, the amount of the settlement. As previously noted in Braddock and Williamson, our appellate courts have respected parties’ desires to preserve confidentiality of settlement agreements when practical.
¶ 32. Thus far, the parties have managed not to disclose the terms of the settlement agreement. To continue to preserve the confidentiality of this agreement, the chancery court should seal the order approving the settlement agreement and should seal the settlement agreement itself (if it is admitted into evidence for any reason). The chancery court should also redact any mention of the settlement amount from future documents and prohibit the parties from mentioning the settlement amount in its proceedings. However, the chancery court may keep the fee-dispute trial’s transcript and proceedings open to the public, which addresses the chancellor’s concern regarding transparency in judicial proceedings.
CONCLUSION
¶ 33. The chancery court abused its discretion by denying Ford’s request to preserve the settlement agreement’s confidentiality. Although the public has a right of access to public records, Mississippi law also favors the settlement of litigants’ disputes and respects confidentiality agreements when practical. The law allows courts to determine when information should be declared confidential or privileged, exempting it from the Public Records Act. Because this settlement agreement is between private parties, does not involve matters of public concern, and is not necessary to resolve the fee-dispute claim, its confidentiality should be preserved. Thus, we reverse the chancellor’s denial of Ford’s motion to preserve the confidentiality of the settlement agreement. However, the fee-dispute trial’s transcript and proceedings should remain open to the public, so we affirm the chancellor’s denial of Ford’s motion to close the proceedings. The Court remands this case to the chancery court for further proceedings consistent with this opinion.
¶ 34. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Concurrence in Part
concurring in part:
¶ 35. As I understand the case, the challenged rulings on appeal are the chancellor’s: (1) denying Ford’s request to prevent public disclosure of the settlement amount (as opposed to the entire agreement or the agreement’s terms); (2) denying Ford’s request to close any of the fee-dispute proceedings which may reveal the settlement amount; and (3) unsealing the chancellor’s order distributing an undisputed portion of the settlement funds. I respectfully suggest that the majority opinion defines the issues too broadly. Rather than limiting its opinion to the specific issue before this Court — whether the amount of the settlement should re
¶ 36. Although the only term of the settlement at issue is the amount, the majority opinion often refers to the confidential nature of the “settlement agreement” or the “terms of the settlement.” For example, the concluding paragraph holds, “[bjecause this settlement agreement is between private parties, does not involve matters of public concern, and is not necessary to resolve the fee-dispute claim, its confidentiality should be preserved.” Yet, determining whether the settlement amount should be subject to public disclosure is quite different from determining whether the entire settlement agreement should remain confidential. Because the authority cited by the majority examined much broader questions, such as sealing the agreement and related court records, those opinions have little application to this case where the parties wish to keep only the amount from public disclosure. See e.g., SEC v. Van Waeyenberghe,
¶ 37. Likewise, the cited Mississippi authority provides little guidance. For example, Chantey Music Publishing, Inc. v. Malaco, Inc.,
¶ 38. As this Court recognized long before the Legislature’s passage of the Act, “[t]he records of the chancery clerks and circuit clerks are public documents.... ” Pollard v. State,
It is difficult to imagine why the general public would have anything more than idle curiosity in the dollar value of a settlement of a court dispute or its terms of payment. These subjects have no relationship to a potential public hazard or matters of public health, and unless official conduct is at issue, matters of proper governance are not involved. Thus, there is simply no legitimate public interest to be served by disclosing this information.
The parties, however, often have a compelling interest in keeping the settlement amount confidential to avoid encouraging nuisance claims and harassment of the recovering party by unscrupulous free riders. For example, when a plaintiff — particularly a minor or other noncompetent person — receives a substantial monetary settlement, confidentiality protects that individual from being preyed upon by hucksters and long-lost relatives or friends. Also, information that a plaintiff had settled with one defendant for a very small sum might compromise the plaintiffs ability to pursue its claims against nonsettling defendants. From the defendant’s perspective, confidentiality ensures that the settlement amount will not be used to encourage the commencement of other lawsuits that never would have been brought or as unfair leverage to extract a similar payment in subsequent suits that may be meritless.
Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L.Rev. 427, 485-87 (1991) (citations omitted).
¶ 40. When the only term at issue is the settlement amount, it is unnecessary to declare a broad statement that Mississippi’s public policy favors confidentiality of settlement agreements over the public’s right of access to court records. In this case, the wrongful death litigation does involve matters of public concern, i.e., the safety of Ford’s vehicles. But any information regarding the plaintiffs’ allegations on this issue may be accessed from the circuit court records of the three jury trials. Whether private citizens have a right to utilize the courts to resolve settlement disputes while limiting public access to the proceedings is an issue that should be addressed when or if it ever reaches this Court. “Public confidence [in our judicial system] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the. court’s decision sealed from public view.” In re High Sulfur Content Gasoline Prods. Liab. Litig.,
RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION. DICKINSON, P.J., JOINS THIS OPINION IN PART.
Notes
. Any case filed with the clerk of the Supreme Court and Court of Appeals which previously was closed to the public by action of the trial court or which by statute is subject to restriction on access to the public in the trial court, shall be closed to public access in the appellate courts and shall be treated as a confidential case by the clerk of the appellate courts.
M.R.A.P 48(A).