The Dangers of Private Matters Becoming Public
While transparency is imperative to ensure access to justice, the private nature of domestic matters cannot be ignored. Public records and open courtrooms mean anyone could look up a name, find the case file, and—for a few dollars in copying costs—walk away with copies of the court file, including sensitive information about finances and children. Unless there is a protective order or an order to close the courtroom, they could even sit in the galley while arguments are made in open court.
The nature of family law also means some of the most private records are part of the dispute. A business partner going through a divorce or a recipient of disability support facing an income imputation hearing may not think that their business records or medical files should be made public. Similarly, one parent who believes the other parent’s negligence is causing their children to use drugs or become truant at school may not think a report to Child Welfare Services should be public. But such information is relevant in a family law proceeding and—without proper handling—could become public.
The Use of Protective Orders and When to Use Them
This is where protective orders can help. A protective order can be as inclusive or exclusive as the parties can agree upon or a court deems necessary. Common types of protective orders in family law litigation relate to financial or child custody issues.
Protective orders in custody cases can be particularly important to protect children. Local jurisdictions likely have additional statutes and case law describing the types of records that must be confidential and the types of records that must not be filed with the court. For example, in California, the Welfare and Institutions Code governs specific procedures around the disclosure of Child Welfare Services reports. Similarly, numerous cases discuss improper disclosures of custody evaluations. A well-written protective order, along with meaningful meet-and-confers between counsels, can prevent most of these issues while still providing the relevant evidence to the court.
Protective orders on financial issues can be particularly helpful when a matter involves trade secrets or business dealings that need to be filed. For example, a shareholder who knows his company will have an IPO may not want that information to be made public through his support modification hearing, but that information could arise in discovery and is certainly relevant. Similarly, a startup company may not want to have its marketing strategy revealed to the public, but expenses incurred in executing its strategy are relevant to an analysis of income available for support.
A good protective order specifies how protected materials will be identified; it should specify who is privy to confidentiality, which may include the parties, counsel, judicial officers, experts, special masters, and collateral witnesses. A protective order should also specify any issues that could arise, along with documents that become available later.
Once a Protective Order Is in Place
In practice, once a protective order is in place, it is imperative that all parties to the order, including counsel, experts, and their staff, are aware of the proper procedures to designate a record confidential. This includes labeling every document confidential before it is transmitted. Failure to do so would not only result in a violation of the order but also defeat the original purpose of the order. A good protective order can do wonders in protecting children, businesses, and parties. But lack of meticulous adherence to the order could result in a nightmare akin to trying to un-ring a bell.