Opinion
Case No. 2:00-CV-936-ST
March 8, 2002
ORDER GRANTING INTERVENORS' AMENDED MOTION TO INTERVENE AND ORDERING FURTHER PROCEDURES ON OBJECTION TO COURT'S SEALING OF RECORDS
This matter is before the court on the Amended Motion to Intervene and Objection to Court's Sealing of Records filed by James E. Shelledy, individually and as Editor and Administrator of News Gathering for The Salt Lake Tribune, and by The Salt Lake City Weekly, KUTV, KUTV Holdings, KTVX-TV, and Clear Channel Communications, Inc. (Intervenors).
The court presumes familiarity with the parties and with the general background of this case. Intervenors sought to intervene in this case for the purpose of seeking to remove the "confidential" and "attorneys' eyes only" designations from numerous discovery documents and to unseal Plaintiffs November 13, 2001, Memorandum in Opposition to ATT Defendants' Motion to Dismiss or for Summary Judgment (Plaintiffs Memorandum in opposition) and its supporting exhibits. The "confidential" and "Attorneys' Eyes Only" designations were originally placed on much of the discovery of this case pursuant to the parties' confidentiality agreements. Because it referenced and attached many documents that were subject to the confidentiality agreement, Plaintiff filed its Memorandum in Opposition and supporting exhibits under seal. After the Motion to Intervene was filed, defendant Deseret News Publishing stipulated it would remove the designation "Attorneys Eyes Only," from certain documents and thereby resolved that issue.
On February 6, 2002, Magistrate Judge Samuel Alba granted the Motion to Intervene and ordered that one group of discovery documents, the minutes of the meeting of the Board of Directors of TCI, be unsealed. He also found that defendants ATT and Deseret News Publishing had shown "good cause" for designating six other categories of discovery documents "confidential," and therefore found that the designations were appropriate and should remain in place. Magistrate Judge Alba expressly declined to address the motion insofar as it sought to unseal Plaintiffs Memorandum in Opposition to ATT's Motion to Dismiss or for Summary Judgment and the exhibits thereto. Intervenors then filed the present motion renewing their request regarding Plaintiffs Memorandum in Opposition and the supporting exhibits.
The Magistrate Judge previously allowed intervention for the purposes set forth in the Motion to Intervene. No party objects to intervention for the purposes of the Amended Motion. This court will grant the Motion to Intervene for the purpose of seeking to unseal Plaintiffs Memorandum in Opposition and the supporting exhibits.
Intervenors assert two basis for the unseating of the documents. First, they assert a First Amendment right of access to court records, and second, they assert a federal common law right of access to court records.
First Amendment Right of Access
In support of their contention that the First Amendment provides the public and the press with the right of access to court documents, Intervenors cite the series of Supreme Court cases finding a right of access to trial and to certain pre-trial court proceedings in criminal cases, e.g. Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982) (right of public access to a criminal trial). They also rely on Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988) (finding standard for determination of First Amendment right of access to court documents should be applied to request to maintain sealed status of discovery documents filed in connection with a motion for summary judgment) and In re Time, Inc., 182 F.3d 270 (4th Cir. 1999) (same finding regarding pretrial motions in criminal case).
ATT and Deseret News Publishing contend that because there is no First Amendment right of access to discovery materials, such a right is not created by the "unilateral" attachment of such discovery materials to a dispositive motion.
It is well-settled that there is no First Amendment right of access to un-filed discovery materials in a civil case. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 36 (1984) (proper Rule 26 restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information and therefore do not offend the First Amendment).
Noting that the Supreme Court has not ruled on the issue, the Tenth Circuit has twice refused to decide whether there is a First Amendment right of access to court documents. U.S. v. Gonzalez, 150 F.3d 1246, 1255-56 (1998) (holding in criminal case there is no First Amendment right of access to backup documentation for fee, cost and expense vouchers filed by defense counsel) and U.S. v. McVeigh II, 119 F.3d 806, 812 (1997) (criminal case holding no First Amendment right to access to suppressed evidence). In McVeigh and Gonzalez, the Tenth Circuit assumed, without deciding, that the First Amendment analysis used in Press-Enterprise II applied to the requests for documents. See Press-Enterprise II v. Superior Court, 478 U.S. 501 (1984) (requiring trial court to articulate findings and consider alternatives before refusing to unseal transcript of closed voir dire proceedings in criminal case). In McVeigh the Tenth Circuit found that it need not decide if the First Amendment right existed, because even if it did apply, the corresponding Press-Enterprise standard had been meet. 119 F.3d at 812.
In Gonzales, the Tenth Circuit examined a claim of First Amendment access to court documents:
The Supreme Court has not yet ruled on "whether there is a constitutional right of access to court documents and, if so, the scope of such a right." McVeigh II, 119 F.3d at 812. However, this court has rejected the argument that such a right exists as to certain court documents because providing access to such information would stretch the First Amendment principles and the Supreme Court's analysis in Press-Enterprise II "well beyond their current bounds." Lanphere Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994); see, e.g. McVeigh II, 119 F.3d at 813-14 (rejecting press's request for access to suppressed evidence); Lanphere, 21 F.3d at 1511-12 (rejecting law firm's commercially motivated request for the names, addresses, and telephone numbers of persons charged with misdemeanor driving offenses); United States v. Hickey, 767 F.2d 705, 709 (10th Cir. 1985) (rejecting defendant's request for sealed plea bargain and court file of his co-conspirator). The question is whether the materials sought here fall into that category as well.
In Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. 2735, the Supreme Court established "tests of experience and logic" to determine whether a First Amendment right of access applies to a particular criminal trial related process. In McVeigh II, we did not decide whether this court would apply the Press-Enterprise II analysis to media requests for access to court documents, but we assumed without deciding that it did. McVeigh II, 119 F.3d at 811-12. We proceed the same way here and assume, without deciding, that the Press-Enterprise II analysis applies to these documents.
We also noted that "[a] number of circuits have concluded that the logic of Press-Enterprise II extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and records can be sealed." McVeigh II, 119 F.3d at 811.Gonzalez, 150 F.3d at 1256-7 and n. 12.
This case presents a closer argument for the existence of a First Amendment right of access to court documents than did either McVeigh or Gonzales because some portion of the exhibits at issue here may be dispositive as to Plaintiff's claims against the ATT defendants. Thus, if the exhibits and Memorandum in Opposition are allowed to remain secret, the public and the press will be effectively denied access to the basis of the opposition to the motion and the reason for the court's decision.
Although this is a closer case for First Amendment right of access to dispositive motion memorandum and exhibits than existing Tenth Circuit precedent, in the absence of a Supreme Court or a Tenth Circuit ruling expressly recognizing a First Amendment right of access to court documents, this court will not find such a right or attempt to delineate the scope of any such First Amendment right of access.
Common Law Right of Access
The common law right of access to judicial records and documents is clearly established. Nixon v. Warner Communications, 435 U.S. 589, 598-99 (1978). All parties to this Motion acknowledge that this right does not include general pretrial discovery material subject to a confidentiality agreement if that discovery is not arguably made part of the court record. In the criminal case U.S. v. Hickey, 767 F.2d 705 (10th Cir. 1985), the Tenth Circuit recognized the common law right of access as follows:
We begin by acknowledging the axiom that a common law right exists to inspect and copy judicial records. See, e.g., In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir.). The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes. However, the right is not absolute. All courts have supervisory powers over their own records and files. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598; Crystal Growers Corporation v. Dobbins, 616 F.2d 458, 461 (10th Cir.). Thus a court, in its discretion, may seal documents "if the public's right of access is outweighed by competing interests." In re Knight Publishing Company, 743 F.2d at 235. The Supreme Court discussed a number of the traditional exceptions to the general rule of access in the Nixon case.
There the Court stated:
"[A]ccess has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not `used to gratify private spite or promote public scandal' through the publication of `the painful and sometimes disgusting details of a divorce case.' Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing."
Nixon v. Warner Communications, Inc., 435 U.S. at 598 (citations omitted). The Court pointed out that because the analysis of the question of limiting access is necessarily fact-bound, there can be no comprehensive formula for decisionmaking. Id. at 599 "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. Thus the trial court in the present case had the supervisory power to act as it did. The question remains whether the court abused its discretion in foreclosing access to the details of [the] plea bargain. . . The court must consider the relevant facts and circumstances of the particular case and weigh the relative interests of the parties.Hickey, 767 F.2d at 708.
The Tenth Circuit has noted that, in determining the balance of interests, the court must "weigh the interests of the public, which are presumptively paramount, against those advanced by the parties." Crystal Growers Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980) (underlined emphasis added) (documents filed in circuit court that involved attorney-client privilege could be sealed for five years where case settled and there would be no decision on the merits of the appeal). As noted in many cases, it is imperative for judicial integrity and public confidence that courts of the United States conduct their business in the full glare of public scrutiny. E.g. Nixon, 435 U.S. at 602 (normally, in considering common law right of access, the court weighs the "interests advanced by the parties in light of the public interest and the duty of the courts"); U.S. v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2nd Cir. 1995) (public monitoring necessary for public confidence in conscientiousness, reasonableness or honesty of judicial proceedings is not possible without access to testimony and documents that are used in the performance of the Article III functions). Any diminution of the bedrock principle of public court proceedings can only be justified by the most particularized, clearly articulated and serious of countervailing interests of the parties.
This is a different (but not unrelated) principle than the principle that underlies the requirement for a showing of "good cause" for the maintaining of discovery materials as confidential under Fed.R.Civ.P. 26(c). Thus, the fact that there has been a judicial finding of "good cause" for the maintenance of discovered but not yet admitted or filed materials as confidential does not automatically satisfy the requirements for maintaining them sealed when they arguably form the basis for a court order dispositive of a parties' claims. To the extent that Chicago Tribune Company v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001), relied upon by Defendants, holds that the Rule 26(c) showing of "good cause" for orders on confidentiality of discovery materials necessarily resolves the public's and press's common law right of access to court documents, this court rejects that ruling. Rule 26(c) generally focuses on the competing rights of the parties in the context of pre-adjudication discovery and therefore does not ordinarily adequately consider the "presumptively paramount" interest of the public and of the press for the purpose of the common law right of access to court documents.
An example of weighing the possible public interest in access to court documents against those advanced by the parties is found Crystal Growers Corp. v. Dobbins, supra, where the appellate court was asked to unseal its docketing statement, joint appendix and appellate briefs in a settled case.
It is beyond question that this Court has discretionary power to control and seal, if necessary, records and files in its possession. See Nixon, 435 U.S. 589, 598. In exercising this discretion we weigh the interests of the public, which are presumptively paramount, against those advanced by the parties. See Nixon, 435 U.S. at 602.
At least three possible interests may be asserted in behalf of the general public in a case like this. First is the general interest in understanding disputes that are presented to a public forum for resolution. Second is the public's interest in assuring that the courts are fairly run and judges are honest. Pointing in the other direction, however, is the public interest expressed in the doctrines of attorney-client privilege and work product immunity; a decision circumventing these doctrines poses a significant threat to the free flow of communications between clients and their attorneys and inhibits the ability of lawyers to adequately prepare their clients' cases.
Plaintiffs have a significant interest in preventing public disclosure of the documents at issue in this case. First, disclosure of the contents of communications between themselves and their attorneys and of reports prepared by their attorneys would effectively nullify their claim of privilege without a hearing on the merits. Second, because of the pending private antitrust actions in which American Crystal is a party-defendant, plaintiffs in those actions might obtain information that would be nondiscoverable absent a determination that the documents were not privileged.
Weighing these competing interests, we hold that retaining the appellate documents under seal for a limited time is appropriate in this case. The public's general interest in the honesty and fairness of this Court is not impaired. The only proceeding oral argument was open to the public; because of the settlement there will be no decision on the merits of the appeal. The coincidence of the public's and plaintiffs' interest in preserving the attorney-client privilege and the work product doctrine here outweighs the more general public interest in information about disputes in the public courts.Crystal Growers, 616 F.2d at 461.
ATT and Deseret News Publishing contend that the exhibits are not covered by the common law right of access because they were "unilaterally" attached to the Memorandum. These parties express the concern that mischief may occur if one party can single-handedly make materials covered by a confidentiality agreement public by simply attaching them to a memorandum that argues the merits of a motion. The court concurs that the possibility of such abuse exists. The court is concerned that, should it allow mere attachment to motions to serve as a method for disclosure of embarrassing or confidential exhibits that are not relevant to the motion or otherwise admissible at trial, that the negative impact on litigation would be significant. If the court were to allow such abuse, parties would be less willing to disclose important documents and motions to compel would become even more rampant.
However, the right of access cannot be denied simply because there is a potential for abuse of that right. Reasonable minds can, and in litigation most often do, disagree on what is relevant to summary judgment and which facts are material. Absent a bad faith attempt to circumvent the confidentiality order or a Rule 11 violation, Plaintiff is entitled to present what it considers to be evidence of the material facts supporting its claims under its theory of the case. The fact that the materials were uncovered during discovery under a confidentiality order does not, by itself, require that they be permanently sealed.
ATT and Deseret News also contend that unilateral attachment of discovery materials as exhibits to a dispositive motion does not convert those materials to being filed or admitted and therefore official court documents unless the court actually relies upon them in rendering its decision. This theory misapprehends the court's duty on a motion for summary judgment. In determining what are, and what are not, material and or disputed facts, the court is making a decision. If the court determines that a particular fact is not relevant, not material and/or not disputed, it is still exercising a judicial function and the document is relevant to that decision and is therefore part of the court record on that decision. Thus, simply because the court does not find a document relevant does not mean that it is automatically excludable from the judicial record to which the public has a presumptively paramount right of access.
While there is no comprehensive formula for decisionmaking on a claim of common law access to court documents, Nixon, 435 U.S. at 599, any decision on this issue requires consideration of the relevant facts and circumstances of this particular case while weighing the relative interests of the parties. Id. and Hickey, 767 F.2d at 708.
There may be sufficient grounds to have certain individual documents attached to the Memorandum in Opposition remain under seal in this case. However, the presumption is that anything the court relies upon or that the litigants have offered as evidentiary support of their position in connection with a dispositive motion will become part of the court record to which the public and the press have a common law right of access. A ruling against the presumption of access to a court document requires particularized findings showing how the interests were weighed to overcome this presumption. Thus, documents must ordinarily be individually considered while weighing interests. It is appropriate for the court to require the litigants to participate in procedures necessary to expeditiously make such determinations. See Grove Fresh Dist, Inc., v. Everfresh Juice Company, 24 F.3d 893, 898 (7th Cir. 1994). The court, therefore will set forth below the procedures to be followed.
In the event further hearing is required on certain exhibits, the parties should be prepared to discuss the individual exhibits as opposed to categories of documents, be prepared to discuss the specific reason for each exhibit to remain sealed, be prepared to cite where in Plaintiffs Opposing Memorandum the exhibit is cited or referenced and be prepared to propose, by page and line, what portion of the Memorandum in Opposition that the party believes should be redacted to preserve the confidentiality of a specific exhibit in the event the court rules it should remain sealed. If a party requests a document remain sealed on the ground that it is irrelevant to the motion and was only attached for the purpose of evading the stipulated confidentiality order, that party should be prepared to argue specifics as to why it is not attached in a good faith attempt to present evidence supporting Plaintiffs theory of the case. It is therefore
ORDERED that the Amended Motion to Intervene filed by James E. Shelledy, individually and as Editor and Administrator of News Gathering for The Salt Lake Tribune, and by The Salt Lake City Weekly, KUTV, KUTV Holdings, KTVX-TV, and Clear Channel Communications, Inc. is GRANTED. Said parties shall be allowed to intervene as Plaintiffs/Intervenors for the purpose of seeking to unseal Plaintiffs November 13, 2001, Memorandum in Opposition to ATT Defendants' Motion to Dismiss or for Summary Judgment and the supporting exhibits. It is further
ORDERED that Intervenors' Objection to Court's Sealing of Records is subject to further proceedings as follows: Within ten working days from the entry of this order Plaintiff shall create and serve upon ATT and Deseret News Publishing a list of the exhibits to its Memorandum in Opposition to ATT's Motion for Summary Judgment. The list shall briefly specify the following information for each exhibit: (1) whether it is subject to the parties' stipulated confidentiality order; (2) whether it is subject to Magistrate Judge Alba's February 5, 2002 Order ruling certain documents should remain confidential, and if so, under what paragraph; and (3) a short notation of the cause(s) of action to which the exhibit relates. It is further
ORDERED that within ten working days following service of said list ATT and Deseret News shall each prepare and serve on Plaintiff a responsive list showing the following for the exhibits they contend should not be unsealed: (1) whether the exhibit was originally confidential pursuant to stipulated order; (2) whether the exhibit was found to be appropriately confidential under Magistrate Alba's February 5, 2002 Order; and if so, under what paragraph; and, (3) briefly the reason it should not be unsealed. It is further
ORDERED that within five working days after the service of the last responsive list, counsel for Plaintiff, ATT, and Deseret News Publishing shall confer to determine if there are any confidential exhibits they can agree may be unsealed. It is further
ORDERED that within five working days following conferring ATT and Deseret News Publishing shall a file memorandum setting forth, with particularity, their reasons why any specific exhibit should remain sealed. The court will then set further hearing if needed. It is further
ORDERED that the court will provide a written order regarding unsealing Plaintiffs Memorandum in Opposition and supporting exhibits. At that time, Plaintiff may be required to prepare and file an amended or redacted version of its exhibits. It is further
ORDERED that in the event that the court finds, after further hearing, that any portion of Plaintiffs Memorandum in Opposition refers to exhibits which the court finds should remain sealed, the court may require Plaintiff to file a redacted version of its Memorandum in Opposition.