Great Memorandum or Brief on Motions to unseal Court cases

We all know that corrupt cases are sealed left and right up and down.  We also know in Chicago, in years past, the Office of Public Guardian had mysterious fires and also City Hall had mysterious fires where only half a floor of records would always burn — only the City half and not the County Half.

I also still have litigants unable to get unconstitutionally sealed cases and transcripts unsealed after many long months.  In Cook County, apparently after you get the order unsealing an unconstitutionally sealed court case file, then the paper file mysteriously disappears and even more mysterious, the computer file suddenly becomes unable to print.

You would not believe the files I have heard that are secreted away, found elsewhere and will not print.

In Cook County, apparently our case files have wings to fly away, legs to walk away and magnets to make them unable to print.

I am sure other jurisdictions have these problems were files or portions of files disappear, files or portions of files are suddenly unprintable, but my favorite is the lawyer that is somehow running around with a missing file (true story) and the judge gets livid, but really does nothing in the end.  Go figure.

So for all of you out there with the complaints of files with wings and legs and only certain attorneys are allowed a take home assignment with a court file, this one is for you.

MEMORANDUM IN SUPPORT OF PROPOSED INTERVENOR PUBLIC
CITIZEN’S MOTION TO UNSEAL
In a case that has been the subject of national media attention, this court ordered
on June 7, 2007, that “the balance of all proceedings . . . shall be filed under
seal.” Consent Order, June 7, 2007. The court’s order states that the subject of the
order was heard during a case management conference on June 1, 2007, that it was
supported by “good cause,” and that all counsel consented to its entry. Id. Other
than these perfunctory statements, there is no indication in the public record of
why the court ordered the case sealed. Nor is there any indication of whether the
court found that the parties’ interest in the secrecy of any particular filings outweighed
the public’s presumptive right of access.
The court’s umbrella sealing order violates the well-established rule in New
Jersey that courts “must examine each document individually and make factual
findings with regard to why the presumption of public access has been overcome.”
Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 382, 662 A.2d 546, 559 (N.J.
1995). Accordingly, proposed intervenor Public Citizen respectfully requests that
the court unseal all filings or portions of filings for which the court has not made
findings that concrete interests in secrecy outweigh the public’s right to know. In
particular, the court should unseal any orders and opinions explaining the justification
for its decision to seal the case so that Public Citizen can, if necessary, effectively
challenge the adequacy of that justification.
2
BACKGROUND
This case involves a suit by Antonia Verni, who was injured by a drunk
driver when she was two years old, against the driver, Daniel Lanzaro, and various
businesses that served Lanzaro alcohol prior to the accident. The background of the
case is set out in the accompanying memorandum in support of Public Citizen’s
motion to intervene.
ARGUMENT
The public has a presumptive right of access to judicial records that can be
overcome only by a strong showing of an important countervailing interest. The
heavy burden of this showing is on the party opposing disclosure and must be
made with specificity on a document-by-document basis. In this case, there are no
motions by the parties or decisions by the court in the public record supporting the
decision to seal the case. Because important public interests mandate disclosure of
the filings and no countervailing interests justify keeping them secret, the court
should unseal all pleadings, transcripts, exhibits, and other documents filed in the
case. Even if the parties can meet their burden as to specific materials, however,
the court should unseal any documents—in redacted form if necessary—for which
the parties’ burden has not been met. At the least, the court should unseal its own
decisions in the case, including any orders granting the parties’ motion to seal.
3
I. The Common Law, Rules of Court, and the First Amendment Create a
Presumptive Right of Public Access to Court Filings.
There is a strong “presumption of public access to documents and materials
filed with a court in connection with civil litigation.” Hammock, 142 N.J. at 375,
662 A.2d at 556; see also In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001).
This presumption arises both from the common-law right of access and from New
Jersey court rules requiring decisions to seal the record or to enter protective orders
to be supported by “good cause.” R. 1:2-1, 4:10-3; Hammock, 142 N.J. at 367-68,
662 A.2d at 551-52.
Court filings are part of the public record when they have “been filed with
the court, or otherwise somehow incorporated or integrated into a . . . court’s adjudicatory
proceedings.” Cendant, 260 F.3d at 192; Hammock, 142 N.J. at 381, 662
A.2d at 559. Thus, the public record includes all “documents, transcripts, and legal
memoranda with attachments filed with the court.” Hammock, 142 N.J. at 361, 662
A.2d at 548. It also includes settlement agreements, at least as long as the settlement
has been filed. See Bank of Am. Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse
Assocs., 800 F.2d 339, 343-45 (3d Cir. 1986) (holding that a settlement filed with
the court was a public record); Jackson v. Del. River & Bay Auth., 224 F. Supp. 2d
834, 838-40 (D.N.J. 2002) (holding that a draft settlement agreement and transcript
of proceedings where the draft was discussed were public documents).
4
The presumption of public access “disallows the routine and perfunctory
closing of judicial records.” Cendant, 260 F.3d at 193-94. Before records can be
sealed, the party advocating secrecy must meet its “burden of showing that the material
is the kind of information that courts will protect” and that “disclosure will
work a clearly defined and serious injury.” Id. at 194 (internal quotations omitted).
Only specific and identifiable privacy interests, such as genuine trade secrets,
privilege, or interests created by statute or court rule justify sealing the record in
civil cases. Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002);
Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983).
“Broad allegations of harm, unsubstantiated by specific examples or articulated
reasoning, are insufficient.” Hammock, 142 N.J. at 381-82, 662 A.2d at 559; Cendant,
260 F.3d at 194.
Even assuming that the parties satisfy their burden of identifying a compelling
privacy interest, they must still show that the interests in secrecy substantially
outweigh the strong public presumption of access. Hammock, 142 N.J. at 381, 662
A.2d at 559; Cendant, 260 F.3d at 194. This balancing process must be conducted
separately for each document to be sealed. Hammock, 142 N.J. at 381-82, 662 A.2d
at 559. Moreover, “to have the least intrusive effect on the public’s right-ofaccess,”
an entire document should not be sealed when it is possible to redact just
the private information. Hammock, 142 N.J. at 382, 662 A.2d at 559.
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In addition to the common-law right of access, the First Amendment provides
a right of access to judicial decisions and other sorts of filings in civil cases.
N.J. Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 119-123, 576 A.2d 261,
264-66 (N.J. 1990); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d
Cir. 1984). The presumption of openness under the First Amendment is even
stronger than the common-law presumption and can be overcome only by showing
“an overriding interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Publicker, 733 F.2d at 1073
(internal quotation omitted); In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir.
2002).1
II. The Interests of the Public in Access to Court Filings Mandate Disclosure
in This Case.
Because of the strong public presumption of openness, Public Citizen need
not offer any particular justification for the public’s right of access to all the filings
in this case. Regardless of the particularities of the case, public access to the
1 All the federal courts of appeals to have decided the question have held
that the First Amendment protects access to civil filings. See Grove Fresh Distribs.
v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); Westmoreland v. CBS, Inc., 752
F.2d 16, 23 (2d Cir. 1984); Publicker, 733 F.2d at 1067-71; Brown & Williamson
Tobacco Corp., 710 F.2d at 1177; Newman v. Graddick, 696 F.2d 796, 801-02
(11th Cir. 1983).
6
court’s files serves important societal values. Court openness “promotes public
confidence in the judicial system by enhancing testimonial trustworthiness and the
quality of justice dispensed by the court” and by “assur[ing] that judges perform
their duties in an honest and informed manner.” Cendant Corp., 260 F.3d at 192
(internal quotations omitted). It also “provides the public with a more complete
understanding of the judicial system and a better perception of its fairness.” Id. Indeed,
the public’s ability to access civil trials is “inherent in the nature of our democratic
form of government.” Publicker, 733 F.2d at 1069.
Although establishing the right of public access does not require any showing
as to the particular public-interest value of the case, the circumstances of this
case make public access especially important. In its first round through the courts,
the case led to the largest alcohol-liability award in the United States in at least
twenty-five years. Verdict Against Stadium Beer Vendor Overturned, Chi. Trib.,
Aug. 4, 2006, at 16. This large verdict led to extensive national discussion and debate.
Hundreds of articles and editorials were written about the case, including articles
in the Washington Post, Wall Street Journal, New York Times, Chicago Tribune,
Houston Chronicle, San Francisco Chronicle, New York Post, and USA Today.
When, as here, the subject matter of the litigation is of interest to the public,
the public’s presumptive right of access is strengthened. See Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994) (“If a settlement agreement involves
7
issues or parties of a public nature, and involves matters of legitimate public concern,
that should be a factor weighing against entering or maintaining an order of
confidentiality.”).
The importance of openness in this case is further amplified by the issues of
public health and safety involved. See Hammock, 142 N.J. at 379, 662 A.2d at 558
(“[T]here is a profound public interest when matters of health, safety, and consumer
fraud are involved.”); Pansy, 23 F.3d at 787. The case sparked a national
debate about the “culture of intoxication” at ballparks, and much of the media coverage
speculated that the case would be a “wake up call” to teams and stadiums
that would lead to reforms. See, e.g., Tom Fitzgerald, A Sobering Reality for NFL
Concessionaires, S.F. Chron., Sept. 25, 2005, at D3; Robert Dvorchak, ‘Culture’ of
Drinking, Sports Is Given a Sobering Revision, Pittsburgh Post-Gazette, Apr. 3,
2005, at D1; Mark Maske, Ruling May Affect Team Policies, Wash. Post, Jan. 22,
2005, at D3. The Vernis’ attorney, David Mazie, said the verdict “sends an appropriate
message, and hopefully will make a difference at arenas across the country.”
David Porter, Jury Awards $75M in Damages from Crash, USA Today, Jan. 19,
2005. That message, however, and any deterrent value the settlement might have
had, is lost as long as the settlement is kept secret.
Finally, the fact that the case involved approval of a settlement involving a
minor increases the importance of public access. This is not a typical settlement
8
agreement, which is never filed in court and is essentially just a private contract between
the parties. See Pansy, 23 F.3d at 776. Rather, because this case involves a
minor, Rule 4:44-3 requires the court to “determine whether the settlement is fair
and reasonable as to its amount and terms.” R. 4:44-3. This requirement of judicial
approval increases the importance of public oversight to ensure fairness of the
process. See Jessup v. Luther, 277 F.3d 926, 929 (7th Cir. 2002) (“The public has
an interest in knowing what terms of settlement a . . . judge would approve and
perhaps therefore nudge the parties to agree to.”); Bank of Am., 800 F.2d at 345;
Stephens v. County of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006).
Thus, whereas “a competent adult, whose settlement need not be judicially approved,
is free to negotiate a ‘private’ settlement[,] in the case of a minor or incompetent,
the requirement of judicial approval of the settlement forecloses, in the
ordinary case, the plaintiff’s privacy option.” Hammock, 142 N.J. at 368, 662 A.2d
at 552 (internal quotation omitted); see, e.g., Zukerman v. Piper Pools, Inc., 256
N.J. Super 622, 607 A.2d 1027 (N.J. Super. Ct. App. Div. 1992) (unsealing a minor’s
settlement where the presumption of access was not overcome). Courts
should not make decisions about the fairness of settlements without public oversight,
and the public cannot judge the fairness of a settlement—or of the court’s
decision approving the settlement—if they cannot see it.
9
III. No Countervailing Interests Support Keeping the Motions Under Seal.
Nothing in the public record explains the perceived need for secrecy in this
case or how this need outweighs the public’s strong interest in access to public
documents. Public Citizen therefore only can speculate as to the reasons that led
the court to seal the case file. Nevertheless, there are two reasons to believe that the
parties cannot show a compelling interest in secrecy here.
First, the court’s order requires prospective sealing of all future documents
in the case. It thus covers documents that had not even been filed at the time of the
order, for which the court could not possibly have made a determination that privacy
interests outweighed the presumption of public access. Courts strongly disfavor
umbrella sealing orders that fail to account for the circumstances of individual
documents. See Pansy, 23 F.3d at 786-87 (“The burden of justifying the confidentiality
of each and every document sought to be covered by a protective order remains
on the party seeking the order.”); Hammock, 142 N.J. at 381-82, 662 A.2d at
559 (“The need for secrecy must be demonstrated with specificity as to each document.”);
see, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir.
1988) (rejecting a blanket protective order that “extend[ed] broad protection to all
documents . . . without a showing of good cause for confidentiality as to any individual
documents”). The court’s sealing order in this case disregards this requirement
of an individualized determination.
10
Second, the case has already been through a four-week public trial that was
the subject of national press coverage. Any previously private or confidential facts
are thus probably already in the public record. The only facts that are likely not to
have already been made public are the terms of the settlement agreement itself, but
courts have repeatedly stressed that an agreement to secrecy as a term of a settlement
cannot trump the public’s right to know. See Lederman v. Prudential Life Ins.
Co., Inc., 385 N.J. Super. 307, 311, 897 A.2d 362, 365 (N.J. Super. App. Div.
2006) (“[P]arties’ contractual agreements do not outweigh the presumption of
openness that applies to court proceedings and filed documents.”); see also, e.g.,
Union Oil Co. v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (“Calling a settlement
confidential does not make it a trade secret . . . .”); Bank of Am., 800 F.2d at 345-
46 (holding that the parties’ private confidentiality agreement could not bar access
to a settlement in the public record). The parties may argue that secrecy was an essential
element of their agreement, but the public’s right of access to documents
that have been filed with the court cannot be bargained away by the parties. See
Bank of Am., 800 F.2d at 345; see also Nault’s Auto Sales, Inc. v. Am. Honda Motor
Co., 148 F.R.D. 25, 44 (D.N.H. 1993) (“The decision to seal pleadings and
documents filed with the Court is not one properly left to the litigants themselves.”).
Thus, “[i]t is immaterial whether the sealing of the record is an integral
part of a negotiated settlement between the parties, even if the settlement comes
11
with the court’s active encouragement.” Brown v. Advantage Eng’g, Inc., 960 F.2d
1013, 1016 (11th Cir. 1992).
IV. At the Very Least, the Court Should Unseal Its Orders and Opinions in
the Case, Including Any Order Authorizing Sealing the Record.
Even if the court does not unseal all documents in the file, it should, at a
minimum, unseal all of its orders and opinions in the case. In particular, the court
should publicly release any documents that explain its rationale for sealing the case
file.
The public’s right of access to judicial decisions is especially strong. Hicklin
Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006) (“[R]edacting portions of
opinions is one thing, secret disposition is quite another.”); BBA Nonwovens Simpsonville,
Inc. v. Superior Nonwovens, LLC, 303 F.3d 1332, 1335 n.1 (Fed. Cir.
2002) (citing the importance of public scrutiny on the administration of justice in
denying a motion to issue an opinion under seal); Joy v. North, 692 F.2d 880, 893
(2d Cir. 1982) (“An adjudication is a formal act of government, the basis of which
should, absent exceptional circumstances, be subject to public scrutiny.”). Because
of the importance of public access to judicial decisions, courts have upheld the
right of access even when national security interests were at stake. See, e.g., United
States v. Ressam, 221 F. Supp. 2d 1252, 1263-64 (W.D. Wash. 2002). As the court
wrote in Ressam:
12
[T]here is a venerable tradition of public access to court orders, not
only because of the inherent value in publicly announcing a particular
result, but because dissemination of the court’s reasoning behind that
result is a necessary limitation imposed on those entrusted with judicial
power. A court’s order therefore serves a function that extends far
beyond a specific case. More than merely informing the parties of the
outcome of a motion, an order also enlightens the public about the
functioning of the judicial system.
Id. at 1262. The court should therefore, at a minimum, allow access to its decisions
in the case, including its order approving the settlement.
Most importantly, the court should release any orders or opinions that justify
its decision to seal the balance of proceedings in this case. The New Jersey Supreme
Court has explained that, when a court seals a document that is part of the
public record, it “must . . . state with particularity the facts, without disclosing the
secrets sought to be protected, that currently persuade the court to seal the document
or continue it under seal.” Hammock, 142 N.J. at 382, 662 A.2d at 559; see
also Ressam, 221 F. Supp. 2d at 1263-64 (holding that protective orders sealing the
record must be released with redactions). Moreover, Rule 1:2-1 requires that the
“good cause” supporting the decision to seal a filing “shall be set forth on the record.”
R. 1:2-1. Other than the perfunctory statement that the sealing order was
supported by good cause, however, there is no indication in the public record of
this case of why the court entered its sealing order. Only by examining the court’s
rationale for sealing the file can Public Citizen effectively challenge that rationale,
both in this court and on appeal.

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