In re Estate of Donna Simonds, No. 51-1-13 Wrcv (Ea ton, J., Jan. 23, 2013)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windsor Unit Docket No. 51-1-13 Wrcv

In re Estate of Donna Simonds

Decision on Administrator’s Motion to File Certain Documents Under Seal

Administrator Ivan Simonds has filed a petition for approval of a wrongful-death settlement that was reached following a mediation s ession held in December 2012. 14 V.S.A. § 1492(c). At issue is the administrator’s request that the settlement agreement and proposed

order of distribution be filed under seal.

In general, all superior-court records are subje ct to an affirmative right of public access. 4 V.S.A. § 652(4); Vermont Rule for Public Access t o Court Records § 4. And although there are some categorical exceptions to this rule for ce rtain kinds of documents, there are no enumerated exceptions for petitions for approval of wrongful-death settlements. Vermont Rule for Public Access to Court Records § 6(b). As such , the court must begin with the presumption that all petitions for approval of wrongful-death s ettlements are public unless the administrator shows “good cause specific to the case” and “except ional circumstances” justifying an order sealing the documents. Vermont Rule for Public Acc ess to Court Records § 7(a); In re Sealed

Documents , 172 Vt. 152, 156–64 (2001).

Here, the administrator argues that the petition should be sealed because the parties agreed prior to the mediation that “all mediation c ommunications and results would be privileged against disclosure in accord with [the U niform Mediation Act, 12 V.S.A. §§ 5711– 5720].” See Administrator’s Motion to File Certain Documents Under Seal, filed January 16, 2013, at 2 (emphasis added). The administrator fur ther argues that § 5715 of the Uniform Mediation Act “would appear not to authorize judici al discretion to leave open and not sealed,

the confidential communications/ agreements of the parties resulting from the mediation.” Id

. (emphasis added). Cf. 4 V.S.A. § 652(4) (explainin g that courts should not make public “any materials or information required by law to be kept confidential”).

A review of the Uniform Mediation Act shows that the parties were not justified in believing that the Act would confer an evidentiary privilege upon the results of the mediation. The evidentiary privilege established by 12 V.S.A. § 5715(a) applies only to “mediation communications,” meaning any statement that “is mad e or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation.” 12 V.S.A. § 5713(3). In other words, the evidentiary privilege extends only to statements that are made during the process of nego tiating a settlement. The settlement itself is

not privileged. See 12 V.S.A. § 5717(a)(1) (explaining that agreements resulting from the

mediation are not privileged); see also Uniform Mediation Act § 6, Of ficial Comment [2] (explaining that written settlement agreements are not confidential). For this reason, the court2

cannot conclude that the evidentiary privilege esta blished by the Uniform Mediation Act provides good cause for sealing the settlement agre ement and proposed order of distribution.

Nor is “good cause” established by the assertion t hat the parties agreed that the results of

the mediation should be confidential. Such confide ntiality agreements may well guide the expectations of the parties in situations where the re is no need for the final written settlement to be filed with a court. But settlement agreements i nvolving the distribution of wrongful-death proceeds must be presented to the court for approva l under § 1492(c), and a private confidentiality agreement between parties is not in itself sufficient to overcome the presumption that documents presented to the court are public re cords. See Perreault v. The Free Lance-Star

, 666 S.E.2d 352, 360–61 (Va. 2008) (holding that pet ition for approval of wrongful-death settlement should not have been sealed, and explain ing that “the desire of the litigants is not sufficient reason to override the presumption of op enness”). In other words, private concerns about “the potential consequences of the financial terms of their settlements being made public . . . do not [ordinarily] constitute suffici ent reasons to seal judicial records,” at least whe n stated in the abstract. Perreault , 666 S.E.2d at 360–61.

The Rules for Public Access to Court Records req uire that all court records be made public unless there is “good cause specific to the case” and “exceptional circumstances” that would justify sealing the records. Here, the admin istrator has not offered a specific explanation that would warrant the extraordinary procedure requ ested. For that reason, the administrator’s request to file the documents under seal is denied.

ORDER

Administrator Ivan Simonds’ Motion to File Certain Documents Under Seal (MPR #1), filed January 16, 2013, is denied

.

Dated at Woodstock, Vermont this 23rd day of Janua ry, 2013.

__________________________________ Harold E. Eaton, Jr. Superior Court Judge