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

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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 session 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 subject to an affirmative right of public access. 

4 V.S.A. § 652(4); Vermont Rule for Public Access to Court Records § 4. And although there 

are some categorical exceptions to this rule for certain 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 settlements are public unless the administrator 

shows “good cause specific to the case” and “exceptional circumstances” justifying an order 

sealing the documents. Vermont Rule for Public Access 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 communications and results would be 

privileged against disclosure in accord with [the Uniform 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 further argues that § 5715 of the Uniform 

Mediation Act “would appear not to authorize judicial 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) (explaining 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 made 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 negotiating 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, Official Comment [2] 

(explaining that written settlement agreements are not confidential). For this reason, the court 
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cannot conclude that the evidentiary privilege established by the Uniform Mediation Act 

provides good cause for sealing the settlement agreement and proposed order of distribution. 

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

the mediation should be confidential. Such confidentiality agreements may well guide the 

expectations of the parties in situations where there is no need for the final written settlement to 

be filed with a court. But settlement agreements involving the distribution of wrongful-death 

proceeds must be presented to the court for approval 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 records. See Perreault v. The Free Lance-Star, 

666 S.E.2d 352, 360–61 (Va. 2008) (holding that petition for approval of wrongful-death 

settlement should not have been sealed, and explaining that “the desire of the litigants is not 

sufficient reason to override the presumption of openness”). In other words, private concerns 

about “the potential consequences of the financial terms of their settlements being made 

public . . . do not [ordinarily] constitute sufficient reasons to seal judicial records,” at least when 

stated in the abstract. Perreault, 666 S.E.2d at 360–61. 

 The Rules for Public Access to Court Records require 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 administrator has not offered a specific explanation 

that would warrant the extraordinary procedure requested. 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 January, 2013. 

 __________________________________ 

 Harold E. Eaton, Jr. 

 Superior Court Judge