What should you do if your client has documents that you contend should not be disclosed to the other side but the trial court orders their disclosure? What if the trial court orders the documents to remain confidential but opposing counsel wants to challenge that decision on appeal? Can an appellate court review the propriety of a disclosure order without reviewing the documents themselves? And if not, how do you get the documents before the appellate court without revealing them to the other side—the precise thing you are seeking to avoid?

Those were some of the difficult questions confronting the Court of Appeals in Bray v. Swisher. After being terminated from a town’s fire department, the plaintiff brought a lawsuit that sought documents relevant to the termination decision. The town argued that some of the documents requested by the plaintiff were not subject to disclosure under state law. The trial court reviewed the documents in camera, found that the plaintiff was entitled to review the documents, and ordered the town to disclose the documents. The town appealed from that decision. However, it did not include the in camera documents in the appellate record.

On Tuesday, the Court of Appeals decided that because the documents were not included in the appellate record, it had “no way” of knowing their content. Analogizing to cases holding that the absence of an evidentiary transcript compels the affirmance of certain trial court decisions, the Bray court presumed that the trial court’s disclosure decision was correct and affirmed.

Interestingly, the appellate court was not flying completely blind regarding the in camera documents. The trial court’s order summarized the contents of the confidential documents. It appears that the town made a strategic decision not to challenge those factual findings on appeal. It argued instead that, as a matter of law, the trial court’s uncontested factual findings did not support its legal conclusion that the documents were subject to disclosure. The Court of Appeals rejected that position.

In a similar 2013 case, a city appealed from an order requiring the city to disclose documents. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff’d, 367 N.C. 184, 751 S.E.2d 611 (2013) (per curiam). As in Bray, the documents were not in the record on appeal, but the Court of Appeals said it would not “expect them to be in light of the substantial right asserted” by the city (that being the right—or perhaps even statutory obligation—to keep certain documents confidential). However, the Wind court affirmed the trial court’s disclosure decision under a similar presumption of correctness as that used by the Bray court.

These two opinions raise interesting questions for practitioners seeking to maintain the confidentiality of documents on appeal. For example, does a protective order entered by the trial court extend to the appellate court? Is there a way for a party to include something in the appellate record that the other party has not seen? Can parties submit documents to the appellate court for in camera review? And if so, how?

While the Appellate Rules do not specifically address these questions, the Court of Appeals previously offered this guidance:

[P]laintiffs could have requested that the trial court review the documents in camera and then seal the documents for possible appellate review. In camera review allows the trial court to direct that the requested information be produced under seal for determination by it of relevancy or potential for leading to discovery of admissible evidence. Any material which the court determines not to be discoverable may then be preserved under seal for review on appeal should further consideration by this Court become necessary.

Miller v. Forsyth Mem’l Hosp., Inc., 174 N.C. App. 619, 621, 625 S.E.2d 115, 116-17 (2005) (internal citation omitted); see also Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 329, 595 S.E.2d 759, 765 (2004) (noting that the appellate court conducted its own review of documents after the trial court reviewed them in camera and “ordered the materials sealed for the purpose of appellate review”).

But this process raises additional questions. What if the trial court refuses to review the documents in camera? What if counsel objects to the submission of in camera documents to the appellate court? Who submits the in camera documents to the appellate court? Can the trial court refuse to seal the documents for appellate review?

Let us know your thoughts on these questions in the comments below.

–Kip Nelson