This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Counterpoint” article.
Nazi Hermann Goering is on YouTube at his 1946 trial in Nuremburg testifying about the necessity of concentration camps. Charles Manson is on the Internet discussing his 1970 murder trial. F. Lee Bailey’s powerful 1995 cross-examination in the O. J. Simpson trial is on the Web.The thoughtful testimony of Bill Gates is posted from a 1998 video deposition. Bill Clinton’s 1998 attempts to weave through a deposition are uploaded. Andrew Fastow’s admission to Enron fraud in 2006 is posted throughout the Internet. The 2011 video deposition of Tony Hayward, nervous CEO of British Petroleum, also is preserved for us online. And there are thousands of other public court records and depositions available at the click of a few keystrokes.
Court records are public records, particularly after the trial is over. They are reviewed by us, and shared in books, studies, newspapers, television, and the movies. For centuries, these records have been open to the public, and for decades, they have included video exhibits and depositions. Public access is an accepted part of our constitutional plan for an open democracy. That venerable principle is being advanced by citizens who are securing their court files in cases that expose community hazards and then sharing the facts with the public on the Internet.
This practice is a growing pain for those who endanger our safety. Wayward corporations, and the insurance companies who represent them, expect that after trial, the court records of their misconduct will be forgotten, buried in a courthouse cellar, and covered with a sleepy layer of dust. Instead, these records are being uploaded so that the evidence is available to the public. The move is to openness and accountability—two necessary components of a healthy democracy.
The Public’s Right to Access Case Records
U.S. Circuit Court Judge Frank Easterbrook wrote in Union Oil Company of California v. Leavell:
People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible. What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Much of what passes between the parties remains out of public sight because discovery materials are not filed with the court. But most portions of discovery that are filed and form the basis of judicial action must eventually be released.
Our courts proclaim that the public has a constitutional right to access court records.
The presumption of public access recognized and promoted by the local rule finds its root in the common law rights of access to judicial proceedings and to inspect judicial records—rights which are “beyond dispute.” . . . The court in Publicker, and other circuit courts of appeal, have gone beyond the undoubted common law right, however, and have found a constitutionally protected right, rooted in the First Amendment, to public access to civil trials.
The general public has had online access to the contents of federal court files since 2005. In Colorado courts, “C.R.C.P. 121, adopted in 1988, creates a presumption that court files will be open to the public unless a court order provides otherwise.”
Hence, the rule creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.
In Exum v. United States Olympic Committee, the U.S. District Court for the District of Colorado held that “[i]n the absence of a showing of good cause for confidentiality, parties are free to disseminate discovery materials to the public.” Courts have found that “[a]ccess to discovery materials is particularly appropriate when the subject matter of the litigation is of general public interest.”
Openness Generally Trumps Privacy Interests
Public access to court records is founded on the principles of an open democracy.
A presumption of openness inheres in civil trials as in criminal trials. . . . [T]he civil trial, like the criminal trial, plays a particularly significant role in the functioning of the judicial process and the government as a whole. . . . [P]ublic access to civil trials enhances the quality and safeguards the integrity of the fact finding process. It fosters an appearance of fairness, and heightens public respect for the judicial process. It permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.
In fact, it is “unreasonable, as a matter of law, for the parties to litigation to expect or to assume that all of the court files will remain private.”
A claim that a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of the file. Likewise, prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.
Naturally, when a party’s privacy concerns outweigh the public’s right to know, the court will enter a protective order sealing such matters. As trial lawyers know, protective orders are freely granted in cases that do not impact public safety or raise public concerns.
To protect community safety, parties have posted public records and videos of child abuse, abuse of the handicapped, nursing home abuse of the elderly, school violence, workplace violence, bank foreclosure fraud, drinking water contamination, air and water pollution, insurance bad faith, and hundreds of other cases of public concern. In response, errant corporations have counter-punched with personal attacks and much more. For example, in the food industry, where video evidence has lead to successful civil and criminal charges, corporate lobbyists in twelve states are pushing legislation that criminalizes such videos and the videographers. Fortunately, the fact that these laws would indict innocent witnesses has been noted by the press and prosecutors, and the bills have struggled for approval. It is in this environment that I was contacted by my new friend Fred Burtzos, counsel for State Farm Insurance Company, and asked to debate the issue here.
So, how do citizens share these types of records? They collect the public portion of their court file, minus any sealed material. Using the records, images, and video depositions, they create a short video and upload it to the Internet. If their video exposes dangers to the community, it is likely to be watched and shared, and it may go viral. If it is not newsworthy, it is likely to have limited circulation.
The sharing of public records is not just growing, it is exploding. Over the last few years, my company, JusticeTV, has joined the trend to assist lawyers and their clients with the technical aspects of creating, editing, and uploading the videos. The process is simple. The law is well-established. And, like sunshine, it is healthy for our community.
 See www.youtube.com/watch?v=mfwujaV7Ia8.
 See www.youtube.com/watch?v=7MZaEt6lOq8.
 See www.youtube.com/watch?v=gVoIz2zNX9U.
 See www.youtube.com/watch?v=m_2m1qdqieE.
 See www.youtube.com/watch?v=xHlt1W83JFU.
 See www.youtube.com/watch?v=9zxAJO7owy8.
 See www.youtube.com/watch?v=VUINT2ibjSE.
 Union Oil Company of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 27-29 (1994), and In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-03 (7th Cir. 1988)).
 Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)).
 Huddleson v. City of Pueblo, Colorado, 270 F.R.D. 635, 638 (D.Colo. 2010) (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)). See Mann v. Boatright, 477 F.3d 1140. 1149 (10th Cir. 2007) (“Courts have long recognized a common-law right of access to judicial records.”).
 See www.cod.uscourt.gov/courtoperations/faq.aspx.
 Office of the State Ct. Administrator v. Background Info. Serv., 994 P.2d 420, 429 (Colo. 1999).
 In Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo.App. 1996), the court stated:
In the Open Records Act, § 24-72-201, C.R.S. (1988 Repl.Vol. 10B), the General Assembly has declared that, with certain specified exceptions, it is “the public policy of this state that all public records shall be open for inspection by any person at reasonable times. . . .” This public policy means that, unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.
 Exum v. United States Olympic Committee, 209 F.R.D. 201, 206 (D. Colo. 2002).
 In re Texaco, Inc. 84 B.R. 14, 17 (Bankr.S.D.N.Y. 1988) (citing In Re “Agent Orange” Product Liability Litigation, 821 F.2d 139, 146 (2d Cir. 1987)).
 Huddleson, 270 F.R.D. at 635, 638 (citing Nixon, 435 U.S. 589).
 Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo.App. 1996) (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)).
 Doe v. Heitler, 26 P.3d 539, 544 (Colo.App. 2001).
 FRCP 26(c) and CRCP 26(c).
 See www.youtube.com/watch?v=N8RzT0NiruQ.
 See www.youtube.com/watch?v=IAYXJ26j2Po.
 See www.wkyc.com/video/1027702353001/0/Investigator-Hidden-camera-catches-nursing-home-abuse.
 See www.youtube.com/watch?v=xDifkMzSLuw.
 See www.youtube.com/watch?v=qkxbG5HADso.
 See 4closurefraud.org/depositions.
 See www.slideshare.net/MarcellusDN/lawsuit-deposition-of-pa-dep-official-tara-upadhyay-on-water-testing-procedures.
 See www.youtube.com/watch?v=HgR3lDg9KhY.
 See www.youtube.com/watch?v=5hIzsc7muxo.
 Oppel, Jr., “Taping of Farm Cruelty Is Becoming the Crime,” The New York Times (April 6, 2013), www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-is-becoming-the-crime.html?_r=0.