NEW YORK TIMES CO. v. DIST. CT. (DOE 1 TRUST) (CIVIL)

141 Nev., Advance Opinion 9 - I IN THE SUPREME COURT OF THE STATE OF NEVADA THE NEW YORK TIMES COMPANY; No. 89347 CABLE NEWS NETWORK, INC.; THE ASSOCIATED PRESS; NATIONAL PUBLIC RADIO, INC.; WP COMPANY LLC; REUTERS NEWS & MEDIA INC.; AND AMERICAN BROADCASTING FILED COMPANIES, INC., Petitioners, vs. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; THE HONORABLE DAVID A. HARDY, DISTRICT JUDGE; AND THE HONORABLE EDMUND GORMAN, JR., PROBATE COMMISSIONER, Respondents, and THE DOE 1 TRUST; AND DOES 1 THROUGH 9, Real Parties in Interest. Original petition for a writ of mandamus or, in the alternative, prohibition, challenging a district court order sealing records and closing all proceedings in a trust case. Petition granted. McLetchie Law and Margaret A.

McLetchie and Leo S. Wolpert, Las Vegas, for Petitioners. SUPREME COURT OF NEVADi 2555927 (1) 1947A 0. Brownstein Hyatt Farber Schreck, LLP, and Jordan T. Smith and Brianna Smith, Las Vegas; Solomon Dwiggins Freer & Steadman, Ltd., and Alexander G.

LeVeque, Alan D. Freer, and Dana A. Dwiggins, Las Vegas, for Real Party in Interest Doe 9. Snell & Wilmer LLP and Kelly H.

Dove, William E. Peterson, and Clark C. Knobel, Reno; Cravath, Swaine & Moore LLP and Gary A. Bornstein, Lauren A.

Moskowitz, Vanessa A. Lavely, Justin C. Clarke, and Lauren M. Rosenberg, New York, New York, for Real Parties in Interest Does 3, 4, 5, 6, 7, and 8.

Maupin, Cox & LeGoy and Michaelle D. Rafferty, Rick R. Hsu, Christopher M. Stanko, and Michelle Mowry-Willems, Reno, for Real Party in Interest Doe 1.

Robison, Sharp, Sullivan & Brust and Kent. R. Robison, Reno, for Real Party in Interest Doe 2. Holland & Hart LLP and Abraham G. Smith and Lauren D.

Wigginton, Las Vegas; American Civil Liberties Union of Nevada and Jacob Smith, North Las Vegas, for Amicus Curiae American Civil Liberties Union of Nevada. BEFORE THE SUPREME COURT, EN BANC.1 OPINION By the Court, CADISH, J.: Relying on statutes that permit the sealing and redaction of certain documents in trust proceedings, the district court ordered nearly all 'The Honorable James W. Hardesty, Senior Justice, was assigned to hear any and all matters related to this case in place of the Honorable Linda Marie Bell, Justice. SUPREME COURT OF NEVADA 2 ith 1947A t:MNIv documents in the underlying case sealed and closed the proceedings. The court concluded that the statutes granted real parties in interest a right to keep the information confidential and found that it could not protect that information from disclosure unless it closed all proceedings. Applying the experience and logic test from Falconi u.

Eighth Judicial District Court, 140 Nev., Adv. Op. 8, 543 P.3d 92, cert. denied, Minter u. Falconi, U.S. , 145 S. Ct. 445 (2024), the district court determined that the First Amendment right of access does not extend to trust proceedings.

Alternatively, it reasoned that even if such a right applied, the combination of statutory protections and real parties in interest's heightened privacy and security concerns due to their public profiles constituted a compelling interest justifying sealing and closure. While the district court pointed to statutory authority and privacy and security concerns, its decision to broadly seal the record and close the proceedings exceeds the scope permitted by Nevada law. The district court erred by interpreting and applying the governing statutes, NRS 164.041 and NRS 669A.256, in a way that is much more restrictive of public access than those statutes contemplate and disregards established principles of openness of court proceedings. Although the statutes allow for provisional sealing of certain documents, they also vest the district court with discretion to determine whether continued sealing is compatible with public access principles.

Moreover, the district court's finding that real parties in interest had a compelling interest warranting the sealing of all documents and closure of all proceedings lacks support, as the statutes' classification of certain documents as “confidential” does not, by itself, establish a compelling privacy interest. Because the court did not make the necessary, nonspeculative factual findings to support a significant privacy SUPREME COURT OF NEVADA 3 (0) 1947A e interest or a substantial probability of harm absent sealing and closure, we grant the petitioner media outlets' petition for a writ of mandamus. FACTS AND PROCEDURAL HISTORY Doe l's trust is domiciled in Nevada, and its trustee is a Nevada family trust company under NRS Chapter 669A. Doe 1 filed a verified petition asking the district court to assume jurisdiction over the trust and to seal confidential information under NRS 164.041 and NRS 669A.256. In January 2024, the district court sealed the entire court file, including concealing the very existence of the case, and closed all hearings to the public, reasoning that the documents filed in the proceedings, and the proceedings themselves, would reveal confidential personal, financial, and business information of the Doe 1 Trust and its beneficiaries.

After receiving rnedia inquiries, the court made limited information about the case available to the public on the court website, including the existence of the case; the case name, number, and type; a notation indicating that the case is sealed; and an index of filed documents organized by filing date and document code. However, the parties' names were concealed by Doe designations. Weeks later, this court decided Falconi, in which we held that civil proceedings, and family court proceedings specifically, are presumptively open to the public under the First Amendment. 140 Nev., Adv. Op. 8, 543 P.3d 92.

We determined that NRS 125.080 and certain local court rules, which applied to either automatically close divorce proceedings or require closure and sealing of documents on a party's request, were unconstitutional. Id. at 100. We reasoned that the statute and rules improperly prevented the district court from exercising discretion to determine whether compelling privacy interests warrant closure and outweigh the First Amendment presumption of public access. Id.

We later SUPREME COURT OF NEVADA 4 (011947A 669A.256 do not address closing proceedings but only the redaction and sealing of court filings, and the district court's blanket closure cannot be squared with the recognized right of access to court proceedings. See Howard, 128 Nev. at 740, 291 P.3d at 139 (“Openness and transparency are the cornerstones of an effective, functioning judicial system” and “[s]afeguarding those cornerstones requires public access ... to judicial proceedings . . . .”). Courts have consistently applied the common law right of access to trust and probate proceedings and held that such proceedings are presumptively open. See Hearst, 136 Cal.

Rptr. at 824-25 (explaining that “traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records ofjudicial tribunals,” including probate proceedings “involv[ing] a large estate with on-going long-term trusts which reputedly administer and control a major publishing empire”); Est. of Campbell, 106 P.3d 1096, 1097 (Haw. 2005) (determining that “a common law presumption of judicial openness accompanies probate proceedings, which may be overcome only upon a showing of strong countervailing reasons that outweigh the public's presumptive right of access to court proceedings and records”); In re Est. of Zimmer, 442 N.W.2d 578, 582 (Wis. Ct. App. 1989) (applying a common law right-of-access presumption to settlement agreement documents resolving a trust dispute after media members requested access). Such openness is “especially important in a state where citizens elect their judges because it ensures that the public has the necessary knowledge to serve as a check on SUPREME COURT OF NEVADA 18 10) 1417A e the judicial branch on election day.”

Falconi, 140 Nev., Adv. Op. 8, 543 P.3d at 98.7 Though the proceedings to which the Coalition sought access are now complete, the district court must review the hearing transcripts and documents in the court file. In doing so, it must consider arguments and evidence to determine whether there is a significant privacy interest to overcome the presumption of openness, warranting continued sealing, or whether redaction or another less restrictive alternative would adequately protect such demonstrated interests. CONCLUSION NRS 164.041 and NRS 669A.256 allow for certain trust-related documents to be sealed provisionally, but the district court must still promptly conduct a proper analysis as to each document to determine whether demonstrated interests overcome the presumption of openness and warrant their continued closure. This includes making specific, nonspeculative findings to support any claimed privacy rights and giving due weight to the public's right of access to judicial proceedings and records.

Accordingly, we grant the Access Coalition's petition and direct the clerk of this court to issue a writ of mandamus directing the district court to vacate 7Given the district court's flawed statutory interpretation and our remand to properly evaluate the requested sealing of records and proceedings in light of the common law presumption of access, we need not address whether the First Amendment right of public access applies to the trust proceedings in this case. Doe Dancer I u. La Fuente, Inc., 137 Nev. 20, 33, 481 P.3d 860, 872 (2021) (explaining that “when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems” (internal quotation marks omitted)). SUPREME COURT OF NEVADA 19 1447A cgD1:4 its order enforcing the probate commissioner's recommendation and conduct the proper analysis with respect to each sealed document and hearing transcript. Finally, Doe 1 and Doe 9's motion to dismiss as moot is hereby denied for the reasons stated herein.

Ge9PAJ Cadish We concur: , C.J. Hernd A Pickering gam." J. Cimke.116 ..fra....r. J . Parraguirre /41,4L4 Stiglich J.

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