Privacy protections and public access are on a collision course in the current court battle over whether the financial documents in billionaire Ron Burkle's divorce case should remain open.

Lawyers for media organizations are objecting to a new state statute that went into effect last summer because they say it oversteps previous protections. The law allows either spouse in a divorce to seal documents outlining assets and liabilities, something Burkle's attorneys have repeatedly attempted to do. Attorneys representing his wife, Janet Burkle, argue that the law is unconstitutional.

Susan Seager, an attorney representing the Los Angeles Times and the Associated Press, joined by attorneys for the California Newspaper Publishers Association, are asking a judiciary panel in 2nd Appellate District to declare the statute unconstitutional. For now, Los Angeles Superior Court Judge Roy Paul temporarily sealed the Burkle documents until he determined the applicability of the new law. The next hearing on the matter is scheduled for Feb. 18.

"Newspaper publishers have had a longstanding position that the courts ought to be open and public, like a city council meeting or state legislature," said Tom Newton, general counsel of the CNPA. "What the statute did was allow one party in a divorce proceeding to seal potentially the entire record associated with the proceeding. And it took away the judge's discretion to say the public interest on this issue demands the file stay open and public."

In an e-mail to the Business Journal, Ron Burkle said: "In a divorce, people's entire lives are cut open and exposed. I don't believe that a reporter's curiosity outweights an individual's right to privacy and the right to protect oneself from identity theft."

Identity theft is among the reasons cited by defense lawyers not affiliated with the case in their arguments on the merits of the statue.

Makes sealing easier

Mitchell Langberg, a defamation lawyer at Stroock & Stroock & Lavan LLP who represents celebrities, noted that divorce cases often involve more detailed financial information, such as bank account numbers, than ordinary civil lawsuits.

Having a statute available that automatically seals financial information in divorces makes it easier for judges who would often seal them anyway, he said.

"Most would consider someone's personal financial information worthy of sealing, but you would have to go through a process of making a motion to the court and, depending on whether the court agreed with you, you might get a sealing order," he said.

Media lawyers are relying on a 1999 decision involving a contractual dispute between Clint Eastwood and ex-girlfriend Sondra Locke. In that case, the California Supreme Court clarified that personal disputes in court should remain public and precipitated stricter rules for obtaining sealing orders in such disputes, including divorces.

Locke claimed that Eastwood deceived her when he promised her a financial share of movies, including the 1992 film, "Unforgiven." In a published opinion, the California Supreme Court ruled that the proceedings and records should be open unless they meet specific circumstances that are considered more important than the public's right to know.

"That case was special to us because for the first time it asked the question of whether or not there was a public constitutional right to access to civil proceedings," Newton said.

After the ruling, the Judicial Council set up court rules that outline a test for sealing certain documents in civil lawsuits. According to those rules, a court may order a record sealed only if it involves an "overriding interest that overcomes the right of public access to the record."

In their brief, media lawyers argue that the Burkle case has not met that test and that the state's new statute violates its requirement of the test altogether.

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