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Judge's order would open files in France case

- efrazier@charlotteobserver.com
Friday, Dec. 11, 2009

A Mecklenburg judge Friday ordered the unsealing of previously secret court files in NASCAR chairman Brian France's legal battle with his ex-wife.

Lawyers said District Judge Jena Culler's ruling means courtroom hearings in the case also will be open to the public. France had argued against that on grounds that it would reveal information protected by a confidentiality agreement.

France's attorney indicated in court that he will appeal immediately to the N.C. Court of Appeals, and that he wants no information revealed before the higher court rules. Culler isn't expected to issue a written order before Tuesday or Wednesday, and she agreed no information will be released before then.

Her ruling came after the Observer and its news partner, WCNC-TV, argued that an order from another judge had wrongly sealed court documents filed in the case.

France filed a civil case against his ex-wife, Megan France, last year, a few months after they divorced in Florida.

Lawyers persuaded Mecklenburg District Judge Todd Owens to seal the court file from public inspection, an unusual step considering N.C. courts usually allow widespread access to courtrooms and filed documents.

In court Friday, Brian France's lawyer, Johnny Stephenson, said the dispute involves "intensely private (matters) that relate to the welfare and parenting of minor children ... and private personal financial matters."

He said the couple had signed a confidentiality agreement to keep those matters private, and there were allegations the deal had been violated. Opening the case, he argued, would render the agreement useless and prevent Brian France from exercising his legal right to seek redress in court.

Ray Owens and Chris Lam, the lawyers representing the Observer and WCNC-TV, said judges have ruled that citizens' access to public court proceedings can be limited only when there's a "compelling countervailing public interest" in doing so. They said Brian France should have pursued out-of-court arbitration if he wanted privacy.

The judge found that while the Frances have a private interest in keeping details of their dispute secret, there is no compelling public interest.

"We believe the court listened carefully and reviewed the law and made the correct decision," Ray Owens said.

Said Stephenson: "We respect Judge Culler's decision, but we believe the Observer's motion raises important Constitutional issues that must be reviewed by the Court of Appeals."

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