The Penn Mutual Life Insurance Company v. Blumberg

Filing 99

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/14/10. (sat, Chambers)

The Penn Mutual Life Insurance Company v. Blumberg

Doc. 99

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND THE PENN MUTUAL LIFE INSURANCE COMPANY v. JONATHAN S. BERCK, TRUSTEE OF THE MARVIN ROSENBLATT IRREVOCABLE TRUST, et al. : : : : : : Civil Action No. DKC 09-0578

MEMORANDUM OPINION Presently pending and ready for resolution is an amended motion to seal (Paper 94) filed by Defendant Robert Finfer. The

court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Finfer's amended

motion to seal will be granted in part and denied in part. I. Background Finfer's motion to amended motion counsel to for seal stems from Penn his earlier Life

disqualify

Plaintiff

Mutual

Insurance Company.

In that motion, filed on June 23, 2010,

Finfer moved to disqualify Plaintiff's counsel pursuant to Rules 1.9 and 1.10 of the Maryland Rules of Professional Conduct

("MRPC").

(Paper 79).

In particular, Finfer alleges that he

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previously retained Plaintiff's current counsel to work on a matter that substantially relates to present dispute.1 Finfer Plaintiff's filed his motion to that to disqualify, and his reply to

opposition

motion,

all

accompanying

exhibits under seal.

(Papers 80, 92).2

He then asked the court

to keep all filings related to his motion under seal, and sought a declaration that the pleadings and argument on his motion would not waive opinion attorney-client dated August privilege. 20, 2010, (Id.). the court In a

memorandum

denied

Finfer's motion to seal and declined to issue any declaration about the scope of the attorney-client privilege. (Paper 93).

The court based its decision on Finfer's failure to comply with the local rule governing the required contents of motions to seal. (Id. at 6 (citing Local Rule 105.11)). The court then

offered Finfer three options:

file a new motion to seal in

compliance with the local rules, allow the motion to disqualify to be unsealed, or withdraw it. Finfer chose the second option,

filing the amended motion to seal now before the court on August

The court's prior memorandum opinion discusses the facts underlying Finfer's motion to disqualify in detail. (Paper 93). Plaintiff sealed its opposition to the motion disqualify "out of an abundance of caution." (Paper 87). 2
2

1

to

27,

2010.

(Paper

97).

Plaintiff

filed

an

opposition

on

September 13, 2010. II. Analysis

(Paper 98).

Finfer asks to seal all filings related to his motion to disqualify and renews his request for a declaration that use of purportedly privileged material in his motion to disqualify does not waive the privilege. (Paper 97). As the court explained in

its prior opinion, a motion to seal must comply with Local Rule 105.11, which provides: Any motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections. The Court will not rule upon the motion until at least 14 days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. There is also a well-established common law right to inspect and copy judicial records and documents. Inc., 435 U.S. 589, 597 (1978). the public's right of access, Nixon v. Warner Commc'ns,

If competing interests outweigh however, the court, in its

3

discretion, may seal those documents from the public's view. re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir. 1984).

In

Furthermore, prior to sealing any documents, the court must provide notice of counsel's request to seal and an opportunity to object to the request the before making its decision. courtroom deciding Id. at Id. or the 234.

Either

notifying the

persons

present in

in

the of

docketing issue"

motion satisfy

"reasonably the notice

advance

will

requirement.

Finally, the court should consider less drastic alternatives, such as filing redacted versions of the documents. If the court

decides that sealing is appropriate, the court should provide reasons, supported by specific factual findings, for its

decision to seal and for rejecting alternatives.

Id. at 235.

Finfer's second motion to seal stands on stronger footing than his first. prior Finfer argues ­ rather convincingly ­ that the and current representation do not seem

representation

obviously related. certain particulars

(Paper 97, at 5-6). about his

Thus, he must disclose practices and his (Id.

business

discussions with his lawyer during a buyout negotiation. at 6). Finfer contends that the attorney-client

privilege

applies to this information.

He concedes that it is his burden

to show that the attorney gained confidential information in the

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course of the prior representation.

As such, he must reveal the

actual confidences he shared with his attorney. Courts have sometimes used motions to seal as a protective device when dealing with information that may be privileged. See, e.g., Doe v. Logan Cnty. Sheriff's Dep't of Logan Cnty., W.Va., No. 2:09-0990, 2010 WL 396229, at *1 (S.D.W.Va. Jan. 19, 2010). Even where the court has not actually determined that is might privileged, preserve a sealing party's information claim to that the may be

information privileged later.

privilege

Without a sealing order, however, the public disclosure

of ostensibly privileged information completely extinguishes any claim to the privilege "without a hearing on the merits."

Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 462 (10th Cir. 1980); see also, e.g., Siedle v. Putnam Inv., Inc., 147 F.3d 7, 12 (1st Cir. 1998) ("[A party's] unrebutted prima facie showing that the attorney-client privilege applies entitles it to

protection."). Penn Mutual protests that Finfer has not provided "details concerning the content of [Finfer's] supposed discussions" with his prior counsel. much. (Paper 98, at 6). Penn Mutual asks for too

By disclosing details of his discussions with his prior

counsel, Finfer would effect the very waiver that he seeks to avoid by requesting that his motion be sealed. 5 See Hawkins v.

Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998) ("[D]isclosure [of a confidential communication] not only waives the privilege as to the specific information revealed, but also waives the

privilege as to the subject matter of the disclosure."). provided privilege. enough detail to establish an arguable

He has of

claim

That is enough to show cause for sealing.

The court

is also confident that sealing of these few filings is a narrow approach that still respects the public's interest in access. Finfer also asks the court (for a second time) to go a step further and declare that any attorney-client privilege attached to documents submitted under seal would not be waived by the act of filing them. as such a (Paper 97, at 9-10). would amount This the court cannot do, to an advisory opinion.

request

Moreover, as the court observed in its last opinion, it is not a certainty that privilege can attach to sealed documents

voluntarily filed under seal in an "offensive" proceeding by a litigant. (Paper 93, at 6 (citing United States v. Jones, 696 Admittedly, this issue is one Compare 2008 WL to

F.2d 1069, 1072 (4th Cir. 1982)).

that has generated some disagreement among the courts. Ross v. Amercrombie at to *5 & Fitch Co., 22, No. 2:05-cv-0819, (filing waive

1844357, motion

(S.D.Ohio under

Apr. seal

2008) not

exhibit

dismiss

did

privilege);

Diversified Grp., Inc. v. Daugerdas, 217 F.R.D. 152, 161 n.7 6

(S.D.N.Y. 2003) (same), with United States ex rel. Schweizer v. Oce, N.V., 577 F.Supp.2d 169, 176 (D.D.C. 2008) (party waived privilege as to exhibits to complaint filed under seal). that disagreement is even more reason to decline any Yet order

concerning waiver at this time, when the question of waiver and privilege has not been fully briefed and the matter is unripe for decision. Therefore, the court will not issue an order

concerning waiver. III. Conclusion For the foregoing reasons, Finfer's amended motion to seal will be granted in part and denied in part. will follow. /s/ DEBORAH K. CHASANOW United States District Judge A separate order

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