Free Speech

Interesting Sealing Decision in Divorce-Related Case of a Powerful Washington Public Affairs Consultant

The ex-wife had withdrawn her complaint before the court took any substantive action, under circumstances that cast doubt on its accuracy; because of that, a Virginia court agreed that it should be sealed.

|The Volokh Conspiracy |

The opinion (extracted below) was handed down Thursday by Judge David A. Oblon of the Virginia Circuit Court; the defendant, Adam Falkoff, was described in Washington Magazine's 2018 Power 100 list (which you'll see is relevant to the opinion) thus: "In a tumultuous administration, Falkoff's access to President Trump has positioned his public policy firm well. Few are able to navigate matters with the skeletal staffs at agencies and the White House like Falkoff, who's also helped advance appointees through Senate confirmations. He has known the Trump family for a decade, and helped raise $1.2 million in campaign funds and was one of his earliest outside strategic advisors."

The issue before the Court is when courts should seal court files from public inspection pursuant to Virginia Code § 20-124, and whether it should seal the file in the present case. The Court has generated and considered a list of limiting principles any court may wish to consider to guide the exercise of its statutory discretion to seal a file.

The Court holds the parties in this case rebutted, in part, the strong presumption in favor of public access to their court file. Accordingly, the Court orders parts of the file to be sealed. This Opinion Letter and accompanying Order shall not be sealed….

[The facts below] were derived from the Court's file and the testimony of Adam Falkoff at the hearing on November 7, 2019. Alison Gill (f/k/a Falkoff) did not appear….

On October 11, 2016, Alison Falkoff ("Wife") filed a Verified Complaint for Divorce in this Court. However, a long-pending divorce and child custody lawsuit was already pending in Florida. Despite this, Wife, in her Complaint, incorrectly swore that she had "not participated as a party, witness, or in any other capacity, in any other litigation concerning the custody of her children in this or any other state or country." She also incorrectly swore that she did not "know of any custody proceeding concerning her children pending in any other court of this or any other state that could affect the current proceeding." In reality, the parties were engaged in active Florida domestic relations litigation since February 2013.

Wife nonsuited [i.e., voluntarily dismissed] the Fairfax case on December 6, 2016, after Adam Falkoff's ("Husband") lawyers alerted her lawyers to the Florida action. Husband now asks that the Court seal the records in the terminated Fairfax matter.

The Fairfax Complaint was filled with moral and salacious allegations, among other unpleasantries. Husband testified they were all false. He offered documentary evidence to support some of his testimony. Since the matter was nonsuited, the allegations are unproven.

Husband testified he is a consultant of Capital Keys. He did not tell the Court the specific nature of his business but claimed his reputation is critical to obtaining and keeping clients. To promote his business, he highlights personal recognition, including his receipt of the 2018 Ellis Island Award and his inclusion on Washington Life magazine's "Power 100" list of the "most influential persons" in Washington.

Husband testified Wife has been trying to sabotage his business by sending copies of her nonsuited Complaint—long after it had already been nonsuited—to his clients, associates, and acquaintances. The organization that awarded him the Ellis Island Award revoked his award upon receiving the Complaint. They reinstated his award after he protested, proclaiming the falsity of the allegations. Things did not turn out as well with the "Power 100" list. Husband made the list in 2017 and 2018. However, the magazine told him he was not on the 2019 list because of the Complaint allegations. The magazine disregarded his protests as to the veracity of the allegations.

Husband has fewer clients this year than in the past and avers this is a direct result of Wife's sending them copies of the Complaint.

To further demonstrate social harm, Husband points to at least one acquaintance who told him Wife recently sent her a copy of the Complaint. The acquaintance had thought the divorce concluded and so it puzzled her. Husband explained the circumstances to defend himself against the salacious allegations. Wife uses the fact that the Complaint is a public record as a sword— she treats it a type of proof text and encourages others to go to the Courthouse to see it for themselves.

Husband is the sole financial provider to his minor children and has sole custody of them. He fears his children will see the allegations and that, if they do see them, they, too, will be harmed….

Court Records Are Presumed Public.

Open judicial records are a deeply rooted constitutional and statutory principle…. [W]hile a presumption of openness exists, the General Assembly has granted judges the authority to seal in domestic relations cases. This, however, does not mean all domestic relations records enjoy automatic shielding from the public eye. "When the sealing of a record or part thereof is not a duty imposed by law. the decision whether to seal the record rests within the sound discretion of the circuit court." … Va. Code § 17.1-208 creates a "strong presumption in favor of public access to judicial records." To overcome this presumption, the moving party "must bear the burden of establishing an interest so compelling that it cannot be protected reasonably by some measure other than a protective order, and that any such order must be drafted in the manner least restrictive of the public's interest." "[T]he desire of the litigants is not sufficient reason to override the presumption of openness." "Nor [does the Supreme Court of Virginia believe that] risks of damage to professional reputation, emotional damage, or financial harm, stated in the abstract, constitute sufficient reasons to seal judicial records." …

There is logic to open judicial records. Circuit courts exercise tremendous discretion—especially in domestic relations cases where there is no jury. Courts assess child support and spousal support and make important custody and visitation decisions. The public has a strong interest in seeing how the courts exercise such discretion. If a significant percentage of these files are sealed, the public would be significantly hampered in its check on its courts and judges….

Recognizing the strong constitutional and statutory presumption of open files, when a court does seal all or part of the file the reasons for doing so should itself be open and public. Rarely should the sealing of the file include sealing the very reasons for doing so. Otherwise, the public is unable to determine whether the decision to seal was a reasonable one.

When presented with a sealed file and no justification, the public rationally can be suspicious that the reasons to close it are bad or arbitrary. The ordinary disinfectant of an appellate review is absent in most of these cases because the parties seeking the sealing of the records are usually the parties themselves. A third party, such as the media, might have the motivation to challenge a decision to seal. However, without knowing the reasons they were sealed, there is no way to ascertain the wisdom of a challenge. Also, the public should not feel compelled to intervene in a sealed case and bear the expense of litigation merely to learn that the matter was sealed for good reason.

Expressing the reasons for sealing creates a paradox. When sealing is appropriate, a court's explanation for doing so necessarily reveals the substance of that which the parties seek to seal…. There may be rare instances where the litigant's reasons for sealing are so compelling that the reason itself should be sealed. [The court does not view this case as being one such rare instance.-EV] …

The Falkoff File Should Be Sealed, in Part

The Falkoff file should be sealed, in part, but the Court's reasons for doing so—including this Opinion Letter—should be public. In this case, the Falkoffs were long engaged in domestic relations litigation in Florida. Knowing this, Wife filed a salacious Verified Complaint of Divorce falsely denying the existence of the Florida action. Thus, the entire Virginia action was based on a foundational misrepresentation. Once Husband's counsel alerted Wife's Virginia counsel of the Florida action, Wife nonsuited the action….

The Court … recognizes the strong presumption of openness. The Court discounts the fact that both parties asked the Court to seal the records. Husband is a public figure, owing to his inclusion on the "Power 100" list of the "most influential persons" in Washington, so the parties' hurdle to seal the record is higher than for most. Nevertheless, the parties' reasons for sealing the records are particularized and are not stated in the abstract. Husband has lost clients because they learned of the allegations in the Virginia Complaint. He lost recognition important to him—the Ellis Island Award and his inclusion on the "Power 100" list. He was able to reinstate the former award but had to protest to regain it. He was unable to reinstate the latter recognition. In both cases, the awarding organizations told him the Complaint triggered his losses….

Presently, the file contains only the following items: the Complaint, Nonsuit Order, service materials, and the Motion to Seal materials. The Complaint is inherently relevant to the merits of the case; the balance of the materials is not. However, the Complaint is an orphaned pleading. Other than receiving it from Wife, the Court took no action on it other than to dismiss it on the parties' request to nonsuit it. The Court adjudicated no issues on the merits. Nothing in the file demonstrates the Court's deliberative process or decision-making….

[Moreover,] the fact that Wife filed the Complaint with an affidavit swearing no similar action was pending in another state even though an action had been long pending in Florida suggests a bad motive by Wife. Linking Husband's sworn testimony, Defendant Exhibits 8 and 9 [which the Court exercises its discretion to seal], and the fact that the Complaint was dismissed without court action, the Court is led to disbelieve the allegations in the Complaint….

Having considered all the above factors, the Court finds that the file should be sealed in part. The initial filing was improper. The key document in the file—the Complaint—is an orphaned pleading that was never tested by the Court. As a result, the Court's involvement was truly minimal. There were no rulings on the merits, and nothing in the file illustrates the Court's deliberative process. Husband introduced credible evidence that the fully open file has caused actual, particularized harm. Based on the November 7, 2019, hearing, the Court has doubts as to the veracity of at least some of allegations contained in the Complaint. The parties rebutted the presumption against sealing.

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  1. Am I reading this wrong, or is this an example of a court taking a lot of words to say sealing cases is generally wrong, unless the guy who wants the case sealed is sufficiently powerful?

    1. You’re reading it wrong.

      1. You are unpersuasive, Hendo.

        But, to your credit, brief.

        1. You’re not very persuasive either, but your brevity and the lack of evidence that you offer for your claim does you no credit.

    2. I can’t say you’re reading it wrong – but only because it’s pretty obvious from your comment that you didn’t read it at all.

  2. Husband testified Wife has been trying to sabotage his business by sending copies of her nonsuited Complaint—long after it had already been nonsuited—to his clients, associates, and acquaintances. The organization that awarded him the Ellis Island Award revoked his award upon receiving the Complaint. They reinstated his award after he protested, proclaiming the falsity of the allegations. Things did not turn out as well with the “Power 100” list. Husband made the list in 2017 and 2018. However, the magazine told him he was not on the 2019 list because of the Complaint allegations. The magazine disregarded his protests as to the veracity of the allegations.

    Husband has fewer clients this year than in the past and avers this is a direct result of Wife’s sending them copies of the Complaint.

    To further demonstrate social harm, Husband points to at least one acquaintance who told him Wife recently sent her a copy of the Complaint. The acquaintance had thought the divorce concluded and so it puzzled her. Husband explained the circumstances to defend himself against the salacious allegations. Wife uses the fact that the Complaint is a public record as a sword— she treats it a type of proof text and encourages others to go to the Courthouse to see it for themselves.

    Husband is the sole financial provider to his minor children and has sole custody of them.

    Ouch. If Wife was sending around copies of the complaint, with all the salacious details to Husband’s clients and threatens his livelihood – is there actually a legal recourse here?

    Feel bad for the children who will learn all this.

    1. If the allegations in her complaint can be proven false, he would have a decent case for a defamation suit against her.

      1. Yeah, but don’t they make those cases public? Meaning, when Husband files for defamation, doesn’t he have to specify what was defaming? That would then make everything public (and the whole point was not to make this stuff public).

        What legal recourse does Husband have?

        1. “What legal recourse does Husband have?”

          He gets to keep his big piles of money.

      2. States generally recognize a litigation privilege that precludes a defamation claim based on statements in pleadings even if they are defamatory. The tort of abuse of process may provide a remedy.

        1. There’s a split of authority as to whether sending the complaint around to others is part of the litigation privilege. Some courts hold that it never is, other courts premit some level of “trying your case in the press”.

          I can’t imagine THIS sort of sending the complaint around would be privileged, however. It’s a dismissed suit!

      3. “If the allegations in her complaint can be proven false, he would have a decent case for a defamation suit against her.”

        … if not for the litigation privilege.

        1. James Pollock: One indeed can’t sue for libel for alleged falsehoods in a complaint, because of the litigation privilege. But a plaintiff’s redistribution of her complaint would, in many states, not be privileged, even under the fair report privilege: “A person cannot confer [the fair report] privilege upon himself by making the original defamatory publication himself and then reporting to other people what he had stated. This is true whether the original publication was privileged or not.” Restatement (Second) of Torts sec. 611 cmt.c. (I couldn’t find any cases on whether Virginia courts adhere to this principle.)

          1. I see Prof. Volokh got there first and explained it better than i did!

          2. Thank you for that, Professor Volokh. I encountered just such a situation decades ago (1970s), and although the question was not tested in court, I always wondered how it would have come out. I think your reference to the Restatement address the logic, although maybe it does not apply alike in every state, or that far back in time?

          3. But a plaintiff’s redistribution of her complaint would, in many states, not be privileged, even under the fair report privilege: “

            The way a plaintiff can get around this is to provide a pointer to the complaint rather than redistribute the complaint itself. “Hey, check out the District Court complaint filed in Smith v. Doe last week. You might find the allegations interesting.”

    2. Seems tome (IANAL!) that sealing the salacious complaint is a waste of time if she’s already sent around enough copies to injure his reputation. A better solution would be to include the court finding of perjury (for falsely swearing the Virginia complaint was unique) with the complaint. Sealing it makes it mysterious and unknown, and leads to even worse rumors with a facade of credibility for conspiracy theorists.

      On the other hand, too late, the damage is done. Most people instinctively steer away from trouble like this and want nothing to do with either party, partly from fear of the unknown, partly to avoid collateral damage, partly to avoid becoming a target of one for being perceived as a friend of the other.

      The storal of the mory is to stay away from crazy.

      1. ” A better solution would be to include the court finding of perjury (for falsely swearing the Virginia complaint was unique) with the complaint.”

        Maybe we should wait until she’s prosecuted AND CONVICTED for perjury before declaring her guilty, what with this being America. We like to have the trial first, here. Notice how the judge writing this opinion didn’t use the word “perjury”? In this country, you’re innocent until AFTER you get convicted.

        1. No, you’re presumed innocent until proven guilty; there’s no magic legal process that suddenly makes people guilty of a crime.

          1. ” there’s no magic legal process that suddenly makes people guilty of a crime.”

            Ah. Then let’s shut down all those criminal courts that have been claiming otherwise.

        2. No. Accusation implies guilt in most cases, except college ‘sex’ cases, where accusation creates guilt.

      2. re: your “better solution”

        That’s pretty much exactly what the court did with the wording of this sealing order – they laid out what the Wife did and why that was an abuse.

        They didn’t go so far as to convict her of perjury but I think that’s because they couldn’t. Perjury is a criminal charge that has to be brought by a prosecutor. As I understand it, neither the other party in a civil suit (the Husband in this case) nor the court on its own can start perjury proceedings.

  3. Seeing as how the person using the information in this complaint is the person who filed it in the first place, how does sealing it provide any benefit to anyone? It won’t make the photocopies she already has disappear.

    1. I assume that, as a party to the case, she is bound by the court’s sealing order and is no longer allowed to distribute the sealed documents, though I can’t vouch for Virginia law on this score.

      1. That’ll keep her Virginia lawyers from circulating the document(s) in question, which likely was already the case. What does it do to limit her behavior?

  4. He’s screwed, but does have recourse of a sort. Let the thing grow cold, and then serve her a dish. Outside of court.

  5. “…before the court too any substantive action…”

    Small typo. “Took” rather than ‘too’ of course.

    [I don’t see any way to flag typos on this website other than publicly posting here. Eugene, feel free to delete this comment after you see it.]

    1. Whoops, fixed, thanks!

  6. I suspect if a man abused the legal process like this to discredit a woman who owned a business there would be a ton of public outrage and the court would not have so gingerly ignored the fact he lied under the penalty of perjury when filing the complaint.

    1. You are a reliable — and reflexive — defender of poor, persecuted, white, stale-thinking, “traditional” males, Jimmy. Who will perform that role after you are replaced?

      1. Funny I didn’t say anything about race but you feel it necessary to make it a racial thing…

  7. Don’t Virginia courts have powers to sanction this stuff? And would not the Florida court ha the power to sanction plaintiff, as well?

  8. “The organization that awarded him the Ellis Island Award revoked his award upon receiving the Complaint. They reinstated his award after he protested, proclaiming the falsity of the allegations.”

    Sounds like this Ellis Island Award isn’t a really prestigious award. A truly prestigious award, like the Pulitzer, would be irrevocable.

  9. The Court’s opinion on sealing is public, and any reasonable person reading it would understand that it undermines the credibility of Wife’s allegations. I think the Court did what it did with that result in mind. Reading between the lines, I’d guess that Wife also lost her Virginia lawyers.

    1. “I’d guess that Wife also lost her Virginia lawyers.”

      I’d guess that, too, but she was done with them as soon as they filed the complaint.

  10. One of the great conundrums of the law: the ancient rule that essentially grants the privilege to libel with impunity if it is done in association with a court filing or court testimony.

    I’m reminded of a Frederick Forsyth short story titled “Privilege” that appeared in his 1982 short story collection No Comebacks. A businessman feels he has been libeled by a journalist who has published an article accusing him of being in business with criminals. He consults with attorneys who all inform him that the libel laws protect journalists and are very difficult to overcome. His own research affirms this conclusion. So, he goes to the journalist’s home and punches him in the face. He then immediately turns himself in to the police. He calls multiple journalists and advises them to be at his court date where he pleads not guilty to the assault charge. He then proceeds to tear into the journalist who libeled him, accusing him of being a drunk, a liar, and a scoundrel, etc.

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