Sealing Personal Injury Files Requires Overcoming Presumption

Sealing Personal Injury Files

Brien Roche

Sometimes in a lawsuit, one party may want the file sealed. On the other hand they may want part of the file sealed. Whether or not that can happen is governed by the case law and statutes of Virginia. In Shenandoah v. Fanning, 235 Va. 25 (1988), the court noted that there is a long-standing public right to access the court records. Also in Virginia Code § 17.1-208 it is noted that records maintained by the circuit court shall be open to inspection by any person. In order to overcome the rebuttable presumption of openness, the moving party must show an interest so compelling that it cannot be protected reasonably by some measure other than a Protective Order. Damage to professional reputation, emotional damage or financial harm is typically not sufficient to overcome the presumption.

Sealing Personal Injury Files-Minors

In a divorce case pursuant to Virginia Code § 20-124, there may be sealing of a file as to such things as personal identification numbers. However a litigant still must rebut the presumption of openness. Shiembob v. Shiembob, 55 Va. App. 234, 244 (2009) If the purpose of the sealing is to protect the welfare of children, then the presumption may well be met. Health records that are admitted into evidence are not subject to being sealed. But health records that are simply filed with the court and not admitted into evidence may be subject to being sealed.

The Wrongful Death Statute requires that wrongful death settlements be approved. The statute requires a petition stating the settlement’s terms and the reasons therefore. Therefore the financial terms need to be set forth in the petition which is a judicial record and typically not subject to being sealed.

Attorney-client communications or attorney work product documents that are in the court file may be subject to sealing. Tianti v. Rohrer, 91 Va. Cir. 111 (2015)