Impoundment Procedure: It’s Not Just for Mitt Romney’s Testimony

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The Boston Globe’s recent request to the Norfolk County Probate and Family Court to vacate portions of an impoundment order issued during Maureen Sullivan Stemberg’s post-divorce action in 1990 against her ex-husband, Tom Stemberg (the founder of Staples), and make public the recorded, sworn testimony given by Mitt Romney during the trial highlights how impoundment works in the context of divorce and family law cases in Massachusetts.

Divorce cases are a matter of public record, meaning that anyone can request and review the files maintained at the Register’s Office of any Probate and Family Court in the Commonwealth. Although the court automatically impounds certain documents such as financial statements, all other papers filed in a family law case are available for public inspection, including those containing intimate, embarrassing or highly confidential information. Under certain circumstances, however, a court will agree to impound part or all of a file in order to prevent the disclosure of sensitive information to the public at large. Once a file is impounded, the information contained therein cannot be released to anyone other than the parties without a court order.

During the Stemberg’s trial, Mitt Romney provided testimony regarding the value of Staples at the time of the parties’ divorce. The entire file, including this testimony, was impounded by the court in order to protect the parties and the company from harm that could result from the disclosure of highly sensitive business information.

Because Governor Romney is now running for President, the Boston Globe felt there was a public interest in reviewing the testimony that he provided during the Stemberg case. Had the judge in the earlier proceeding not issued the impoundment order years ago, Mitt Romney’s testimony would have been open to public inspection, and all a reporter would have needed to do was walk into the courthouse and request the file. However, because of the impoundment order, the Globe had to make a formal request to the court for the release of Mitt Romney’s testimony. The court held a hearing on the issue and allowed the Globe’s request, making Mitt Romney’s testimony available to the public.

Although the Steinberg trial involved confidential information regarding a publicly traded, multi-million dollar company, the stakes need not be so high for a court to allow a litigant’s request for impoundment. Because of the sensitive nature of many divorce cases, impoundment is often requested by one or both parties.

By way of example, the wife in a high-conflict divorce case seeks to have the husband vacated from the marital home on the grounds that the husband is engaged in cruel and abusive behavior having a detrimental impact on her and the parties’ minor children. In support of her motion to have the husband vacate the marital home, the wife files a sworn affidavit (a signed, written statement executed under the penalties and pains of perjury) which sets forth details regarding her allegations against the husband.

The husband, in his opposition to the motion, files an affidavit of his own. The husband’s affidavit highlights for the judge numerous, detailed examples of highly irrational behavior and the excessive alcohol consumption that the Wife has been demonstrating in the marital home and in the presence of the minor children. Without the affidavits being impounded by the court, these signed statements will physically be located in a file at the courthouse. There is nothing to prevent anyone – be it a neighbor, the parent of a child on a team that either party coaches, a co-worker or competitor, a competing candidate for public office, or a potential new employer – from simply going to the courthouse, requesting the file from the records department, and reviewing the affidavits submitted by the parties during their divorce proceedings. The worst possible result, in my opinion, is that the parties’ minor children, once grown, and after being made aware of the concept of the public’s access to court cases, will themselves have an opportunity to pull the court file and review the sordid details of their parents’ divorce.

Although it is often difficult for a party to obtain an order of impoundment from a judge due to the competing public interest in the integrity and transparency of the judicial system, there is a specific procedure available to a litigant who wants to impound some or all of his or her file. That procedure is set forth under the Uniform Rules on Impoundment Procedure. A litigant must make a formal, written request for impoundment and file a sworn affidavit setting forth what material is sought to be impounded and the period of time for which impoundment is sought. After holding a hearing on the issue, a judge will enter an order of impoundment “for good cause shown”. In determining good cause, the court must consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request. Once an impoundment order is entered, it may not be modified or terminated except upon order of the court and upon written findings in support thereof. The Boston Globe properly followed the Uniform Rules in making its formal request to the court that Mitt Romney’s testimony be unsealed.

In sum, impoundment isn’t just for Mitt Romney. Under the appropriate circumstances, and in the discretion of the particular judge assigned to your case, certain court papers may be impounded upon the request of either party. Prior to getting to the point where you are in need of an impoundment order to keep the documents you file with the court private, however, you may simply want to consider (with the guidance of your counsel) whether it is worth filing such material with the court in the first place.


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