Miscellaneous

No Secrets: Settlement Agreements in South Carolina

By Anne Skove, Esq.

There are many South Carolina traditions: mustard BBQ, insanely sweet tea, and giant tiger paws painted in the middle of the street. We can also add the presumption of openness regarding settlement terms to this list.

Per R. 41.1, Sealing Documents and Settlement Agreements, "South Carolina has a long history of maintaining open court proceedings and records." To that end, then, settlements are not sealed unless one party files a Motion to Seal, according to R. 41.1(b). This motion sets out why the party feels sealing is necessary, why "less drastic alternatives" are not feasible, and outlining several supporting factors such as fair trial, witness cooperation, and the parties' expectations of confidentiality.

During an informal conversation with someone who is quite familiar with this procedure, we learned that parties do not move to seal very often. So, initial fears that the motion would become a mere extra step in the walk to nondisclosure were unfounded.

This process is a boon not only for the public interest, but also for researchers. Elsewhere, settlements can only be guessed at. South Carolina, in other words, is fertile ground for civil justice research.

See The Ethics of Using Judges to Conceal Wrongdoing, John P. Freeman, South Carolina Law Review, vol. 55 (2004). (Link is to SSRN abstract.) See also Court Seeks End to Secret Settlements, Sara Thacker, Reporters Committee for Freedom of the Press (Fall 2002), which was written before the rule went into effect.

Thanks to Tom for the BBQ map!

Full post as published by court-o-rama.org on March 27, 2008 (boomark / email).