Rule 41.1.Sealing documents and settlement agreements
Group VI: Trials · Last amended May 5, 2003 · Last verified July 13, 2026
Full Text of Rule 41.1
Notes
Note: Rule 41.1 was enacted to set forth with clarity the fact that the courts of this State are presumed to be open and to set forth with particularity when documents and settlement agreements, submitted to a court for approval, may be sealed.
Amendment History
Last amended by Order dated May 5, 2003.
Plain-English Summary
South Carolina starts from the premise that court files belong to the public. The state constitution says the courts are public, and Rule 41.1 exists to keep that promise even as electronic records make files easier to find and copy. A party who wants something sealed cannot ask a clerk to keep a document out of the file on request alone; the party must file a Motion to Seal, describe the material in non-confidential terms, and submit the sensitive material itself in a separate sealed attachment for the judge to review privately. The motion has to explain why sealing is needed and why weaker options — like redacting names or filing a summary — would not protect the interest at stake.
The rule lists factors a judge weighs before sealing anything: whether a fair trial requires it, whether witnesses need protection to cooperate, whether the parties relied on an expectation of confidentiality, how much public or professional significance the case carries, and what harm disclosure would cause. The party asking for secrecy carries the burden of showing the balance tips toward sealing. In family court, judges also weigh whether the material exposes sensitive financial details or custody information that could hurt a child.
Settlements get separate treatment. A judge cannot condition approval of a settlement on sealing it, and a settlement involving a public body or institution can never be sealed. A party may ask to seal all or part of an approved settlement, using the same motion procedure, but the court weighs a shorter, four-factor list for settlements — the lawsuit's public or professional significance, the harm disclosure would cause, why an alternative to sealing won't work, and why the public interest favors sealing — dropping the fair-trial, witness-cooperation, and confidentiality-expectation factors that apply to sealing documents generally. Notably, the rule leaves alone private settlements where the parties dismiss the case themselves without asking a judge to approve anything — that kind of confidentiality clause is a contract question, not a Rule 41.1 question.
Whatever a judge decides, the order sealing a document has to spell out specific reasons. A one-line order that just says "sealed" does not satisfy the rule; the point is to leave a public record of why the public record was closed.
Frequently Asked Questions
Does agreeing to keep a settlement confidential guarantee a court will seal it?
No. Rule 41.1(c) says approval of a settlement cannot be conditioned on sealing it, and the party seeking secrecy still has to satisfy the listed factors and carry the burden of proof. A settlement involving a public body or institution cannot be sealed under any circumstances.
What has to be in a Motion to Seal?
The motion must identify the specific documents or portions at issue, give a non-confidential description of them, and come with a separately sealed attachment containing the material itself for the judge to review privately. It must also explain why sealing is necessary and why less drastic alternatives will not work.
Does this rule cover private settlement agreements the parties never bring to a judge?
No. Rule 41.1(a) says the rule does not apply to private settlements where the parties voluntarily dismiss the case under Rule 41(a)(1) without asking the court to approve anything. Whether a confidentiality clause in that kind of agreement can be enforced is a matter of contract law, not this rule.
Are family court cases handled differently?
Yes. In addition to the general factors, a family court judge must also weigh whether the material exposes private financial information that could hurt a party or touches sensitive custody issues affecting a child, and must specifically balance the child's interests.
What happens once a motion to seal is filed?
Unless the court orders otherwise, the clerk enters it in the Clerk's File Book and on the motion calendar like any other motion, and a hearing is held on it.
Does a sealing order have to explain itself?
Yes. Rule 41.1(d) requires any order sealing documents or a settlement to state with specificity the reasons that require sealing.