Free Speech

More on Sealing from the Third Circuit

Sealed litigation is a rare exception to American courts' normal rule of public access.

|The Volokh Conspiracy |

Two more cases from the last few days show this, both from within the Third Circuit. First, from Lampon-Paz v. U.S. Dep't of Justice, 2019 WL 5681351 (3d Cir. Nov. 1, 2019) (nonprecedential):

Lampon-Paz is a former federal air marshal who has filed a series of federal lawsuits seeking to hold the federal government and the State of New Jersey liable for a litany of seeming unrelated events alleged to have befallen him and his family, including his now former wife and his minor son…. To the extent that any of Lampon-Paz's present claims survive [various preclusion] doctrines, we conclude—as the District Court in his second New Jersey action suggested, and as the District Court and the Ninth Circuit in his California action concluded as well—that Lampon-Paz's continued attempt to hold the federal government liable for his alleged injuries is "wholly insubstantial and frivolous" and thus failed to invoke the District Court's subject-matter jurisdiction….

Lampon-Paz routinely files meritless motions to seal briefs and other documents, and we routinely deny them. See, e.g., Lampon-Paz v, DHS, 532 F. App'x 125, 126 n.3 (3d Cir. 2013). In this case, Lampon-Paz requests sealing because this case involves his minor son. Sealing is not necessary because Lampon-Paz's brief does not identify his minor son by name.

And from Judge Peter Sheridan in Bonner v. Justia, Inc., 2019 WL 5622536 (D.N.J. Oct. 31, 2019), another unsuccessful sealing attempt from Mr. Bonner as well:

Plaintiff moves to seal all documents and orders relating to the two motions [for a jury trial and for relief from a judgment or order] denied above. However, "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Comm., Inc., 435 U.S. 589, 597 (1978) (citations omitted). Indeed, there is "a presumption that 'all materials and judicial proceedings are matters of public record and shall not be sealed.' " Novo Nordisk A/S v. Sanofi-Aventis U.S. LLC, No. 07–3206(MLC), 2008 WL 323611, at *2 (D.N.J. Feb. 4, 2008) (citation omitted); see also Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) ("[I]t should go without saying that the judge's opinions and orders belong in the public domain."). The party seeking to seal "has the burden of establishing 'good cause' with respect to each document that it seeks to seal." Id. A party seeking to seal must support such request by affidavit, declaration, certification, or other document "describing with particularity":

(a) the nature of the materials or proceedings at issue;

(b) the legitimate private or public interest which warrant the relief sought;

(c) the clearly defined and serious injury that would result if the relief sought is not granted;

(d) why a less restrictive alternative to the relief sought is not available;

(e) any prior order sealing the same materials in the pending action; and

(f) the identity of any party or nonparty known to be objecting to the sealing request.

L. Civ. R. 5.3 (c)(3). The party seeking to seal must provide "legitimate public or private reasons for the documents to be kept from the public" and must identify "a clearly defined and serious injury that would result if the motion is not granted." Celgene Corp. v. Abrika Pharm., Inc., No. 06–5818(SDW), 2007 WL 1456156, at *5 (D.N.J. May 17, 2007). Here, Plaintiff's motions to seal do not comply with the Local Rules, nor provide legitimate reasons for keeping the documents out of the public domain. Therefore, Plaintiff's motions to seal are denied.

Note: (1) I had intervened in Bonner v. Justia to oppose the requested sealing. (2) Mr. Bonner took the view in the Bonner v. Justia argument that my blog posts that had mentioned him (in the context of this case and related matters)—or perhaps my intervention in the case and serving him with my filings, or both—had violated N.J. Rev. Stat. § 2C:28-5, which bans, among other things, witness tampering and "retaliation" against "witnesses and informants":

[a.] Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence;
(4) Absent himself from any proceeding or investigation to which he has been legally summoned; or
(5) Otherwise obstruct, delay, prevent or impede an official proceeding or investigation….
[b.] Retaliation against witness or informant. A person commits an offense if he harms another by an unlawful act with purpose to retaliate for or on account of the service of another as a witness or informant. The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree.

I'm happy to report those allegations (as well as Mr. Bonner's assertion that my posts and litigation in the case "has become a concern to the New Jersey State Police Cyber Crimes Unit," whatever that means), though I am quite confident that they have no merit, for many reasons.

NEXT: Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha

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  1. Perhaps what is needed is “conditional sealing”, wherein the record is temporarily sealed, until events occur which render the original reason for sealing the case moot. Say, for example, a minor’s achievement of majority, or the passage of a fixed term of years.
    I’m sure, if such a scheme were seriously contemplated, legal scholars would ensure that rules were set in place to avoid an indefinite term, or perpetuity. Law students of the future could enjoy the mental calisthenics of determining exactly when a sealing order would expire, applying the rule against (sealing) perpetuities. The law school exam questions practically write themselves!

    1. As a practical matter, many clerk’s offices screw up and forget to seal things. I have a suspicion they’d just as easily screw up and forget to unseal things. I realize that’s not a legal argument for or against this proposal (which I think has a lot of merit), but it’s worth keeping in mind as a practical matter.

      Personally, most sealed documents likely don’t need to be sealed indefinitely, just for a fixed period of time.

  2. I am rethinking my view on this. I continue to think that the constitution’s guarantee of a right to a public trial for criminal defenders needs to be interpreted through basic construction rules including an assumption of non-redundancy. If the First Amendment already ensured publicity for all court proceedings, The 6th amendment language would be redundant, and that can’t be.

    That said, courts and legislatures set rules, so public policy can add additional requirements.

    My paradigmatic example has been a messy divorce case. Why should a couple be forced to air all their affairs in public and expose themselves to ridicule just to be able to get a clean break? If the law requires too much cost for going through civil methods to solve problems, it incentivizes self-help, even violence, and these consequences and costs to social peace have to be weighed against the benefits of a public right to know.

    But perhaps the paradigmatic counter-example is the rampaging plutocratic with a string of rape cases, each victim silenced by a quick payout and a confidentiality agreement. Having the courts put their blessing on the silence can thus enable rather than prevent violence.

    Both cases exist. It seems to me that the law needs to distinguish between the two and require disclosure in some cases and not others.

    This in turn strikes me as a quintessential legislative task. Perhaps a common law task. But not a constitutional task, not the sort of task where you start with ideals and the ideal’s not being met ends the matter.

    1. ReaderY: Justice Rehnquist’s solo dissent in Richmond Newspapers, Inc. v. Rehnquist (1980) took a similar view:

      “For the reasons stated in my separate concurrence in Gannett Co. v. DePasquale, 443 U. S. 368, 403 (1979), I do not believe that either the First or Sixth Amendment, as made applicable to the States by the Fourteenth, requires that a State’s reasons for denying public access to a trial, where both the prosecuting attorney and the defendant have consented to an order of closure approved by the judge, are subject to any additional constitutional review at our hands. And I most certainly do not believe that the Ninth Amendment confers upon us any such power to review orders of state trial judges closing trials in such situations.

      “We have at present 50 state judicial systems and one federal judicial system in the United States, and our authority to reverse a decision by the highest court of the State is limited to only those occasions when the state decision violates some provision of the United States Constitution….

      “The proper administration of justice in any nation is bound to be a matter of the highest concern to all thinking citizens. But to gradually rein in, as this Court has done over the past generation, all of the ultimate decisionmaking power over how justice shall be administered, not merely in the federal system but in each of the 50 States, is a task that no Court consisting of nine persons, however gifted, is equal to. Nor is it desirable that such authority be exercised by such a tiny numerical fragment of the 220 million people who compose the population of this country. In the same concurrence just quoted, Mr. Justice Jackson accurately observed that ‘[t]he generalities of the Fourteenth Amendment are so indeterminate as to what state actions are forbidden that this Court has found it a ready instrument, in one field or another, to magnify federal, and incidentally its own, authority over the states.’

      “However high-minded the impulses which originally spawned this trend may have been, and which impulses have been accentuated since the time Mr. Justice Jackson wrote, it is basically unhealthy to have so much authority concentrated in a small group of lawyers who have been appointed to the Supreme Court and enjoy virtual life tenure. Nothing in the reasoning of Mr. Chief Justice Marshall in Marbury v. Madison (1803), requires that this Court through ever-broadening use of the Supremacy Clause smother a healthy pluralism which would ordinarily exist in a national government embracing 50 States.

      “The issue here is not whether the ‘right’ to freedom of the press conferred by the First Amendment to the Constitution overrides the defendant’s ‘right’ to a fair trial conferred by other Amendments to the Constitution; it is instead whether any provision in the Constitution may fairly be read to prohibit what the trial judge in the Virginia state-court system did in this case. Being unable to find any such prohibition in the First, Sixth, Ninth, or any other Amendment to the United States Constitution, or in the Constitution itself, I dissent.”

      It’s a perfectly plausible position, it seems to me — but the Court rejected it 7-1, at least for access to criminal trials, and lower courts have nearly unanimously applied this to civil cases and civil court records.

      But even beyond that, most courts, federal and state, have recognized a strong presumption of a right of access to court records, as part of their common-law authority over court procedures. The two cases I cite in the post were relying on that common-law right. And while a common-law right of access could be overcome by legislation, in a way that the First Amendment right couldn’t be, legislatures have mostly not attempted to do so (with some exceptions, to be sure).

    2. “the paradigmatic counter-example is the rampaging plutocratic with a string of rape cases, each victim silenced by a quick payout and a confidentiality agreement”

      Having open CRIMINAL trials does not imply that CIVIL trials should be open, much less that they MUST be open. Obviously, to have precedential value, a court ruling must be available to all… but do we care if Giant Industrial Corp v. Massive Multinational is in the open? How about if the case is about misappropriation of trade secrets? Giant accuses Massive of using corporate espionage to obtain the secret formula for Giant’s brand of dog food, which is preferred 2 to 1 in emerging markets.

      1. Trials are not private matters. They involve state action, with the government transferring (or not) property from one party to another, or otherwise altering the parties’ legal relationship. Said government is supposed to be answerable to the public, not just to those parties.

        If the parties both want to resolve their differences in secret, they can do so, either amicably or through an arbitrator. But once they involve the government in their dispute, the public has the right to know what their employees are doing and why.

    3. They are not forced to do so in anyway. The couple can dissolve their marriage by mutual agreement or they can avail themselves of a private arbitrator (Probably at significantly less cost as well).

      The state has no desire to be in the middle of this, we have a civil courts only as a necessity when normal conflict resolution fails.

      That being said, having avail themselves of the state, I don’t see that the parties have any rights to prevent the public from scrutinizing the state action in this case.

  3. I saw, “More on Sealing,” and thought, “News from the Bering Strait.”

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