East Point Systems, Inc. et al v. Maxim et al

Filing 74

ORDER granting in part and denying in part the parties' 57 Motion for Protective Order. See the attached order. Signed by Judge Vanessa L. Bryant on 6/3/2014. (Burkart, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EAST POINT SYSTEMS, INC., et al.,
Plaintiffs,
v.
STEVEN MAXIM, et al.,
Defendants.

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CIVIL ACTION NO.
3:13-cv-00215 (VLB)

June 3, 2014

ORDER DENYING MOTION FOR PROTECTIVE ORDER [Dkt. #57]
The parties jointly moved for entry of a stipulated protective order attached
as Exhibit A to the motion. The Motion is GRANTED in part and DENIED in part
for the reasons and to the extent provided herein, without prejudice to refilling if
the parties seek further consideration of the matter.
The Local Rules specify that “[n]o document shall be sealed merely by
stipulation of the parties. A confidentiality order or protective order entered by
the Court to govern discovery shall not qualify as an order to seal documents for
purposes of this rule. Any document filed under seal in the absence of a Court
order to seal it is subject to unsealing without prior notice to the parties.” D.
Conn. L. R. 5(e)3. Further, “[n]o judicial document shall be filed under seal,
except upon entry of an order of the Court either acting sua sponte or specifically
granting a request to seal that document. Any such order sealing a judicial
document shall include particularized findings demonstrating that sealing is
supported by clear and compelling reasons and is narrowly tailored to serve
those reasons.” Id. These rules embody the principles articulated by the United
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States Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980), and its progeny. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501
(1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
The Second Circuit has held that the qualified right of public access to the
courts applies in civil proceedings. See Westmoreland v. Columbia Broad. Sys.,
Inc., 752 F.2d 16, 23 (2d Cir. 1984) (“we agree . . . that the First Amendment does
secure to the public and to the press a right of access to civil proceedings in
accordance with the dicta of the Justices in Richmond Newspapers, because
public access to civil trials enhances the quality and safeguards the integrity of
the factfinding [sic] process, . . . fosters an appearance of fairness, . . . and
heightens public respect for the judicial process, . . . while permitting the public
to participate in and serve as a check upon the judicial process—an essential
component in our structure of self government.” (citations omitted)); N.Y. Civil
Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (“we have
concluded that the First Amendment guarantees a qualified right of access not
only to criminal but also to civil trials and to their related proceedings and
records.”). The Second Circuit has extended this right to access to cover, among
other things, summary judgment motions and documents relied upon in
adjudicating those motions and, more generally, court docket sheets. See
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (summary
judgment motions); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 96 (2d Cir.
2004) (civil docket sheets).

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The presumptive right of access prevails unless it is overcome by
“specific, on-the-record findings that sealing is necessary to preserve higher
values and only if the sealing order is narrowly tailored to achieve that aim.
Lugosch, 435 F.3d at 124. “Broad and general findings” by the court, however,
“are not sufficient to justify” sealing the documents. Matter of N.Y. Times Co.,
828 F.2d 110, 116 (2d Cir. 1987); United States v. Aref, 533 F.3d 72, 82-83 (2d Cir.
2008) (applying the strict scrutiny standard in reviewing orders to seal).
The proposed protective order here authorizes the parties to seal
documents automatically, in that it provides that “the said papers shall be
preliminarily deemed sealed as there is [unspecified] good cause to suggest that
the Parties have, in good faith, represented that the papers contain confidential
trade secrets that would otherwise cause irreparable harm if disclosed.” [Dkt.
#57-3, Stipulated Protective Order, p. 14]. While “[a] statute mandating or
permitting the non-disclosure of a class of documents (e.g., personnel files,
health care records, or records of administrative proceedings) provides sufficient
authority to support an order sealing such documents,” counsel in this case have
cited no fact or law upon which the Court can discharge its duty to make the
particularized factual findings as required by the United States Constitution as
reflected in the local rules. D. Conn. L. R. 5(e)3.
Our local rules provide three procedures for seeking a sealing order.
Counsel may file a motion to seal (1) with the document sought to be sealed, (2)
without the document sought to be sealed, or (3) file a motion to seal with a
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request for in camera review of the document sought to be sealed. The Court
suggests the parties revise the proposed protective order to specify the method
to be used with the understanding that any document filed that the Court does
not seal will become public. Thus, where a law affords the basis of a request to
seal, such as for medical records or social security numbers, the parties may
wish to elect the first option and present such motion to the Court. Where
counsel are confident that there are compelling reasons that outweigh the
public’s right of access to the courts as prescribed by the Constitution, they may
choose to use option two. However, if counsel wish to assure that the document
is not made public they should seek in camera review.
Accordingly, as provided in the Local Rules pertaining to sealing, while no
document shall be “deemed sealed,” absent an order of the court, a party may
seek permission of the court to submit the documents sought to be sealed for in
camera consideration, thereby avoiding the inadvertent public filing of the
document. Counsel are reminded of the need to provide the Court with
particularized facts from which the Court could find that the document should be
sealed. Counsel are further reminded that their unilateral determination or mutual
agreement that a document should be sealed is insufficient for the Court to make
the requisite findings.
If the Court agrees to review documents in camera, counsel shall submit to
chambers and shall serve on all counsel of record copies of the documents
sought to be sealed and shall file a motion to seal, a memorandum of law in
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support of the motion, and supporting documents. If counsel want the motion to
seal, memorandum or supporting documents to be considered as documents to
be sealed, counsel shall submit those documents in a sealing envelope of the
type described in Local Rule 5(e)4(a), and its contents shall be treated as a sealed
document unless the motion to seal is denied or until otherwise directed by the
Court. If the Court grants the motion to seal in whole or in part, counsel shall file
any redacted copies of the documents required by the Court’s sealing order and
shall submit to the Clerk the unredacted documents to be sealed in a sealing
envelope in accordance with D. Conn. L. Rule 5(e)4(d).
For the foregoing reasons, the parties’ [Dkt. #57] Motion for a Protective
Order is GRANTED in part as specified herein and DENIED in part to the extent
inconsistent with the foregoing, without prejudice to refilling in accordance with
this order and Local Rule 5(e).
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: June 3, 2014 

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