Over the past few days we’ve dealt with two cases where our clients were deeply invested in the question of whether or not the contents of sealed court documents could be made public. And our answer to both of them was the same: If someone knows about the documents, some of the information might be obtainable.
In the first instance, we were engaged to complete a thorough background check on a potential business associate. Over the past several years, the potential associate had been the subject of numerous lengthy newspaper and magazine profiles, most of which mentioned his criminal past. The articles provided a broad overview of the events that led to his arrest, and noted that the charges were eventually dropped when his victim refused to press charges, and the businessman successfully petitioned to have the rest of the case sealed.
Of course, the sealed documents prevented us from finding out the full details of the case. But the act of having the file sealed clearly failed to keep all the information from becoming public knowledge. Those details can come to light a number of ways:
- As in this instance, press coverage of the original arrest with some of the key facts about the incident detailed can be pulled up during a thorough media search;
- And interviews with colleagues or adversaries, including perhaps the assault victim himself or his family, who knew about the matter and are more than happy to share details.
In the second instance, our client asked if we could assure him that the sealed details of his contentious divorce would not come up if he was the subject of a due diligence search. The best way to learn what the public record says about someone is to do a complete and thorough public records search. Although we knew there were public records that were unobtainable, we went to the courts anyway to affirm that the files would not be accidently released.
As we predicted, the sealed documents were not made available. Our client was relieved… until we reminded him that thorough due diligence would also include interviews with friends, former colleagues and associates. And if any of them knew any details about his divorce, they might reveal that information during an interview, even if they are not asked about that matter directly.
As we mentioned in our blog entry, “The Key to a Good Interview Is Silence,” a smart interviewer asks a lot of open-ended questions, and leaves subjects time and space to talk. It’s in those pauses that people tend to reveal information an interviewer may have not even suspected existed, and that a subject of a due diligence search may want most to keep hidden. The real issue then isn’t whether or not the court will release sealed documents. The bigger concern is whether or not people will spill the beans.