JACOBS v. THE CENTER FOR ORGAN RECOVERY & EDUCATION et al
Filing
227
MEMORANDUM ORDER: AND NOW, to wit, this 6th Day of November, 2012, for the reasons previously discussed herein, IT IS ORDERED that the parties' Joint Motion for Leave to File Petition Under Seal 215 shall be, and hereby is, DENIED. Signed by Judge Sean J. McLaughlin on 11/6/2012. (kas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL B. JACOBS, Individually
and as Administrator of the ESTATE
OF GREGORY JACOBS, et al.,
Plaintiffs,
v.
THE CENTER FOR ORGAN
RECOVERY AND EDUCATION,
et al.,
Defendants.
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Case No. 1:09-cv-48-SJM
MEMORANDUM ORDER
McLAUGHLIN, SEAN J., District J.,
Presently pending before me is a joint motion [215] and supporting brief [216] by
the parties requesting leave to file under seal the Plaintiffs’ petition for court approval of
the settlement reached in the above-captioned matter. On September 11, 2012 this
Court granted the motion of Times Publishing Company (“TPC”) to intervene [217].
TPC subsequently filed a brief in opposition to the parties’ joint motion to seal [218].
Defendant Coleman has filed a reply to TPC’s brief in opposition [222], and TPC has
responded to Coleman’s reply brief [226]. This Court has subject matter jurisdiction
pursuant to 28 U.S.C. §1332 due to the parties’ diverse citizenship.
Because the settlement of this case involves the resolution and/or compromise of
claims filed on behalf of the decedent’s estate, court approval of the settlement is
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statutorily required. See 20 Pa. C.S.A. §3323. Accordingly, the petition for court
approval of the settlement will have to be filed as part of the official court record.1
Our Court of Appeals has recognized a right of access to judicial proceedings
and judicial records which is “beyond dispute.” Pansy v. Borough of Stroudsburg, 23
F.3d 772, 780-81 (3d Cir. 1994) (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 677-78
(3d Cir. 1988)). “The common law right of access antedates the Constitution, and its
purpose is to “promote[ ] public confidence in the judicial system by enhancing
testimonial trustworthiness and the quality of justice dispensed by the court.” Leap
Systems, Inc. v. Moneytrax, Inc., 638 F.3d 216, 220 (3d Cir. 2011) (quoting Littlejohn,
supra, at 677-78) (alteration in the original). Thus, there is a “’strong presumption’ in
favor of accessibility [which] attaches to almost all documents created in the course of
civil proceedings.” Id. (citing authority).
Despite this strong presumption in favor of accessibility of judicial records, our
circuit permits the sealing of documents in appropriate circumstances “when justice so
requires.” Leap Systems, Inc., 638 F.3d at 221. However, “[t]he burden is on the party
who seeks to overcome the presumption of access to show that the interest in secrecy
outweighs the presumption.” Id. at 221-22 (quoting In re Cendant Corp., 260 F.3d 183,
190 (3d Cir.2001)).
1
In Bank of American Nat. Trust and Sav. Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339 (3d Cir.
1986), the Third Circuit Court of Appeals held that “the court's approval of a settlement or action on a
motion are matters which the public has the right to know about and evaluate.” 800 F.2d at 344.
“[S]ettlement documents can become part of the public component of a trial” in one of two ways: (1)
“when a settlement is filed with a district court” (as is anticipated in this case), and (2) “when the parties
seek interpretative assistance from the court or otherwise move to enforce a settlement provision.” Leap
Systems, Inc., 638 F.3d at 220 (citing Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir. 1993)).
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The movants concede that they bear the burden of establishing “good cause” for
filing the subject petition under seal. See Pansy v. Borough of Stroudsburg, 23 F.3d
772, 786 (3d Cir. 1994)(“[W]hether an order of confidentiality is granted at the discovery
stage or any other stage of litigation, including settlement, good cause must be
demonstrated to justify the order.”). See also E.E.O.C. v. Kronos Inc., 620 F.3d 287,
302 (3d Cir. 2010) (“The burden of justifying confidentiality remains at all times on the
party seeking the order.”) (citation omitted). “Good cause is established on a showing
that disclosure will work a clearly defined and serious injury to the party seeking closure.
The injury must be shown with specificity.” Pansy, 23 F.3d at 786 (quoting Publicker
Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). See also Leap Systems,
Inc., 638 F.3d at 222 (“’(B)road allegations of harm, bereft of specific examples or
articulated reasoning,’ are insufficient, on their own, to establish a strong interest in
maintaining confidentiality.”) (quoting In re Cendant Corp., 260 F.3d at 194).
In determining whether good cause exists to seal the petition to approve the
settlement agreement, this Court “must balance the requesting party's need for
information against the injury that might result if uncontrolled disclosure is compelled.”
Pansy, supra, at 787 (quoting Confidentiality, Protective Orders, and Public Access to
the Courts, 105 Harv. L. Rev. 427, 432–33 (1991)). Our Court of Appeals has
recognized numerous factors that may be considered as part of the “good cause
balancing test,” namely:
1) whether disclosure will violate any privacy interests;
2) whether the information is being sought for a legitimate purpose or an
improper purpose;
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3) whether disclosure of the information will cause a party embarrassment;
4) whether confidentiality is being sought over information important to
public health and safety;
5) whether the sharing of information among litigants will promote fairness
and efficiency;
6) whether a party benefitting from the order of confidentiality is a public
entity or official; and
7) whether the case involves issues important to the public.
E.E.O.C. v. Kronos Inc., 620 F.3d at 302 (citing Glenmede Trust Co. v. Thompson, 56
F.3d 476, 483 (3d Cir.1995)).
These factors are neither mandatory nor exhaustive. Glenmede Trust, 56 F.3d at
483. Rather, a district court has the discretion “to evaluate the competing
considerations [of private versus public interests] in light of the facts” of its particular
case. Id. (quoting Pansy, supra, at 789). “Under the good cause balancing test,”
however, “there is a strong presumption against entering an order of confidentiality
whose scope would prevent disclosure of information that would otherwise be
accessible under a relevant freedom of information law.” Kronos Inc., 620 F.3d at 299
(citing Pansy, 23 F.3d at 791).
Based on the record before me, I conclude that the movants have failed to
establish good cause for the sealing of the settlement approval petition.
The movants contend that sealing the settlement petition is in the Plaintiffs’ best
interests in order to ensure that the decedent’s family has time to heal and recover from
the trauma of the decedent’s death without the necessity of dealing with invasive media
inquiries. Notwithstanding the Plaintiffs’ quite legitimate desire to achieve emotional
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closure, however, this Court (like TPC) questions whether disclosure of the settlement
petition would actually tend to invite “invasive media inquiries” beyond those which
would otherwise result if the settlement terms were sealed. As of this writing, this
litigation has been pending some three and one-half years, and the details of each
sides’ claims and theories have been spelled out in the expansive judicial record which
is already available to the public. Disclosure of the petition for settlement approval will
essentially reveal only the amount of settlement and the apportionment of that figure as
it relates to the wrongful death and survival claims, as well as counsel fees and certain
expenses. It is therefore unclear that disclosure of the settlement terms would subject
the decedent’s family to any more media scrutiny or attention than has already occurred
over the last several years.
Moreover, the Plaintiffs’ privacy concerns must be viewed in the overall context
of this case. From the beginning, this lawsuit has engendered considerable publicity,
largely as the result of Plaintiff’s own allegations that the Defendants had engaged in
conduct – vigorously denied by Defendants -- which (if proven) could fairly be described
as shocking, sinister, and macabre. As TPC also points out, in March of 2009 (around
the time this case was filed), the Plaintiffs and their legal counsel provided an interview
to CBS, to be broadcast nation-wide, concerning their claims against the Defendants.
Accordingly, much of the wide-spread media attention in this matter has been generated
by the Plaintiffs themselves, and their stated desire for closure, even though
understandable, cannot outweigh the public’s considerable interest in disclosure of the
terms of settlement. We agree with TPC that the possibility of additional media inquiries
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relative to the terms of settlement does not represent the type or degree of harm that
can justify denying public access to an official court record.
The movants further contend that filing the settlement petition under seal will be
in the best interests of the other parties as well because of “the complex medical
determinations made, the sensitive nature of organ donation and the susceptibility of
misunderstandings and mischaracterizations about organ donation that would have a
chilling effect on such donations.” (Jt. Br. in Supp. of Mot. for Leave [216] at p. 4.) No
elaboration is provided by the parties concerning how disclosure of the settlement terms
might achieve such a chilling effect. To the extent the parties are suggesting that the
settlement might be misperceived as an admission of liability on the part of the
Defendants, we simply note that the case has been vigorously defended and the
Defendants have repeatedly and vociferously denied that they engaged in any tortious
or wrongful conduct relative to the treatment of the decedent.2
Although relevant considerations may include the possibility that disclosure of the
settlement information will cause a party embarrassment, this factor does not weigh in
favor of the parties’ request to seal the settlement petition in this case. Because the
“release of information not intended by the writer to be for public consumption will
almost always have some tendency to embarrass … [one] must demonstrate that the
embarrassment will be particularly serious.” Cipollone v. Liggett Group, 785 F.2d 1108,
1121 (3d Cir. 1986). General allegations of injury to reputation… or embarrassment…
[are] insufficient.” Glenmede Trust Co. v. Thompson, 56 F.3d at 484. Here, no showing
2
The Court notes that it is not uncommon for a defendant or defendants, as part of a settlement petition
or agreement, to make clear that the payment of settlement proceeds is not an admission of liability.
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has been made that, if the petition for settlement approval is unsealed, the Defendants
will be subject to embarrassment beyond that which normally occurs when a defendant
settles a case.
Consideration of the other relevant factors also favors disclosure of the petition
for approval of settlement. For example, there is no allegation by the movants, nor is
there any basis for assuming, that TPC seeks information concerning the settlement for
an improper or abusive purpose. Furthermore, because this case involves allegations
of wrongful conduct in connection with organ donation, the contents of the judicial
record – including the terms of settlement – contain information over which the public
has a legitimate interest from a public policy perspective.
Another factor courts consider is whether resolution of the case is dependent
upon the issuance of a court order keeping the terms of settlement under seal. The
parties have confirmed that such is not the case in the pending litigation.
Defendant Coleman insists that, in actuality, the parties are not voluntarily
submitting their Petition to Approve the Settlement with the Court because they are
compelled to do so by virtue of 20 Pa. C.S.A. §3323. Coleman contends that,
“[i]nasmuch as the parties are not voluntarily submitting the settlement amount to the
Court, but rather are doing so under compulsion of statute, this should be another factor
considered in favor of granting the Joint Motion to Seal.” (Jonathan Coleman’s Reply to
Br. of Intervenor in opp. to Jt. Mot. for Leave to File Pet. Under Seal [222] at pp. 7-8.)
This Court disagrees. The statutory requirement that court approval be obtained
for the settlement of survival claims reflects a public policy concern that the decedent’s
estate, and any creditors and beneficiaries thereof, be protected. See In re Estate of
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Merryman, 669 A.2d 1059, 1060 n.1 (Pa. Commw. Ct. 1995); Moore v. Gates, 580 A.2d
1138, 1141 (Pa. Super. 1990). Although Coleman contends that this protection can be
adequately accomplished without disclosure of the settlement terms, I do not concur.
The same public policy concerns which make court approval of the settlement
necessary also counsel in favor of disclosure of the settlement terms because the public
has the right to ensure that the court is fulfilling its statutorily mandated role and
exercising sufficient oversight. I therefore agree with TPC’s assertion that
Pennsylvania’s requirement of court approval of this settlement actually heightens the
public interest in access to the subject documents.
Finally, the Court recognizes that the parties to this settlement are private
litigants as opposed to public officials and, in cases involving a private settlement, the
need for public disclosure is ordinarily less weighty. However, I find that this factor, and
the parties’ asserted privacy concerns, are outweighed by all of the other previously
discussed factors which counsel in favor of full disclosure. Accordingly, I conclude that
the movants have failed to establish good cause for the sealing of the petition for
settlement approval, particularly in light of the substantial public interest that has been
generated as a result of the nature of the allegations in this case, the fact that the
alleged wrongdoing arises in the context of organ harvesting – an issue of broad public
concern, and (most importantly) the fact that the settlement petition must be submitted
to the court for approval and will thereby become part of the judicial record. Based
upon the foregoing reasons, the following order is entered:
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AND NOW, to wit, this 6th Day of November, 2012, for the reasons previously
discussed herein,
IT IS ORDERED that the parties’ Joint Motion for Leave to File Petition Under
Seal [215] shall be, and hereby is, DENIED.
s/
Sean J. McLaughlin
Sean J. McLaughlin
United States District Judge
cc:
All parties of record.
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