The Volokh Conspiracy
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An interesting decision in a case involving "Tied Up in Knots," "a book officially authored" by then-Fox News commentator Andrea Tantaros; the case is still officially titled [Under Seal] v. [Under Seal] (S.D.N.Y. Aug. 10, 2017), but will presumably be renamed Krechmer v. Tantaros:
Before the Court is defendant's motion for a preliminary injunction prohibiting plaintiff from violating the confidentiality provision of the Collaboration Agreement during the pendency of any sealing order in this case. Defendant has also argued for the continued sealing of this matter.
Here's the court's summary of the relationship between the parties:
On or about May 4, 2015, both parties entered into a written agreement … for [Michael Krechmer] to assist [Tantaros] in writing the Book. The Collaboration Agreement included a confidentiality provision that provided as follows:
Client's [Tantaros's] confidentiality is essential to this agreement. Collaborator may not discuss or mention his involvement in the work in any venue without prior approval, in writing, from Client. Collaborator [Krechmer] will … disclose any Confidential Information as required in response to a valid court order or other legal process, but only to the extent required by that order or process and only after Collaborator has provided Client with written notice and the opportunity for Client to seek a protective order or confidential treatment of such Confidential Information. …
[Krechmer] alleges that in July 2015, he and [Tantaros] agreed to terminate the Collaboration Agreement and enter into a new, separate, completely oral "Ghostwriting Agreement," pursuant to which [Krechmer] would ghostwrite the Book in exchange for a flat fee of $150,000. [Krechmer] contends that apart from the payment schedule of the Collaboration Agreement no other provisions of said agreement were incorporated into the Ghostwriting Agreement.
[Krechmer] alleges that [Tantaros] did not want to negotiate this new agreement with [Krechmer]'s agent because she "feared" that (a) it would "cause her editor to discover that she was not writing the book herself;" (b) "Harper Collins [the Book's publisher] would cancel the book if they discovered that there were any negative issues in the writing process, particularly since she was already running more than two years behind schedule;" and (c) she would "suffer professional repercussions and personal humiliation if her colleagues at Fox News discovered that the publication agreement with Harper Collins was cancelled."
[Krechmer] claims that at the time the complaint was filed he had been paid a total of $30,000 for his work on the Book. On March 17, 2016, in response to [Krechmer]'s queries about payment, [Tantaros] allegedly emailed [Krechmer] telling him that she was preparing financial disbursements for the Book, and demanded that he sign a non-disclosure agreement that would forbid him from stating that he was the editor of the Book, even though [Tantaros] had publicly [noted] his assistance in the book's acknowledgements. [Krechmer] refused to sign the nondisclosure agreement.
The parties disagree about whether "the confidentiality clause of the Collaboration Agreement is [still] binding," and also about whether the case should remain under seal:
[Tantaros] argues that she will be irreparably harmed absent [a preliminary injunction enforcing the confidentiality clause] because her professional credibility and career as a journalist would be seriously jeopardized by public revelation of [Krechmer]'s claims that he is the actual author of her book. [Tantaros] also argues she would be irreparably harmed because she would be deprived of the noncompensable benefit of her bargain, i.e., the confidentiality provision of the Collaboration Agreement, the effectiveness of which is at issue in this case.
But the court concludes that Tantaros's concerns don't justify continued sealing of the case, given "the presumption of [public access to court documents] under the common law and the First Amendment":
["A] sealed complaint leaves the public unaware that a claim has been leveled and that state power has been invoked - and public resources spent - in an effort to resolve the dispute. These considerations indicate that public access to the complaint and other pleadings has a 'significant positive role,' in the functioning of the judicial process.["] Moreover, documents filed in relation to a motion "are judicial documents to which a presumption of immediate public access attaches under both the common law and the First Amendment. Dispositive motions are adjudications, and "[a]n adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny." Similarly, a presumption of public access attaches to a court's decisions. "[A] court's decisions are adjudications - direct exercises of judicial power the reasoning and substantive effect of which the public has an important interest in scrutinizing." …
[In arguing that the presumption of public access is rebutted], [Tantaros] asserts that she would suffer irreparable harm if [Krechmer]'s alleged role in helping write the Book was revealed either by unsealing the case or by [Krechmer] violating the confidentiality provision of the Collaboration Agreement. [Tantaros] argues that, as a well-known television journalist, her credibility is her trade, and if [Krechmer]'s role in helping [Tantaros] write the Book was revealed it would severely undermine her credibility in the eyes of her colleagues, fans, publisher, and the wider news-media world. [Tantaros] contends that in view of the professional repercussions and personal humiliation she would suffer, the harm of disclosure justifies a continuation of the seal and an injunction to enforce the confidentiality provision of the Collaboration Agreement.
The Court disagrees. A possibility of future adverse impact on employment or the celebrity status of a party is not a "higher value" sufficient to overcome the presumption of access to judicial documents. …
[Tantaros] also contend[s] that the harm of disclosure would be irreparable [if the documents are unsealed] because it would deprive her of the benefit of her bargain should the Court find the confidentiality provision binding. [Tantaros] asserts she would not have engaged [Krechmer]'s services without an assurance that he would keep the arrangement confidential. However, courts in this district have repeatedly found that the preservation of such bargained-for confidentiality does not overcome the presumption of access to judicial documents. …
The details of the working relationship and arrangement between the parties lie at the very heart of the litigation. If the public is to understand the nature of the dispute and the reasons for the court's rulings, access to the judicial documents is essential.
The court leaves open the door, though, to a possible damages award if Krechmer is found to have violated a confidentiality provision:
Although the Court does not find [Tantaros]'s asserted harm to be irreparable [so as to justify a preliminary injunction], the Court does not agree with [Krechmer] that the likelihood of his violation of the confidentiality provision, in the past or in the future, is low. To the contrary, the Court finds it difficult to account for apparent third-party knowledge of this matter and of the parties involved without concluding that [Krechmer] or [Krechmer]'s counsel may have violated this Court's sealing order, and that this violation may have been deliberate. The Court is particularly troubled by the submission it received from counsel to a third party in unrelated litigation against [Tantaros]. The submission stated, without explanation, that this attorney "inferred" the identities of the parties here and requested information from this lawsuit. The Court's concern is heighted by the fact that [Krechmer]'s counsel admits to being in direct communication with this attorney, the fact that [Krechmer] has a longstanding and significant relationship with the relevant client of this attorney, and that defense counsel has consistently asserted that the action before this Court was filed as part of a litigation strategy against his client, but in the other action.
UPDATE: Commenter John Hawkinson points to this interesting order from the seemingly quite annoyed judge:
This and all further filings shall be on the public docket. From the outset of this case, defendants have sought to prevent disclosure of the parties' names and file every document under seal. In an opinion & order issued July 27, 2017, this Court denied defendants' motion to continue in that manner and ordered that the case be unsealed no later than Tuesday, August 1, 2017. That date was briefly pushed back by order dated July 31, 2017 so the parties could discuss and agree on limited redactions to the materials filed under seal.
What has occurred since then is best characterized by this Court as a circus. The parties may not have apprehended the Court's intent, but because there exists a strong presumption in favor of public access to judicial documents, only those matters requiring redaction as a matter oflaw or equity shall be allowed. See. e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) ("The common law right of public access to judicial documents is firmly rooted in our nation's history.") (citing U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)).
Although the presumption in favor of public access is not absolute, the proposed redactions submitted by both parties far exceed those that are warranted under the applicable legal standards. For instance, it appears that defendants seek to redact various matters with which they disagree, but there is no legal or equitable basis to do so. Additionally, the parties' apparent agreement as to certain redactions that are legally unjustified is not acceptable to the Court. For those reasons, it is hereby ORDERED that:
1. All further filings in this matter shall be made on the public docket, with a full caption of the parties' names.
2. Consistent with applicable law, the Court will only redact words and/or phrases that must be redacted as a matter of law or equity. For example, the word that completes the quote beginning "Little does he know that after reading the book manuscript I actually -" shall be redacted, and the screenshot of a text message reflecting same shall be maintained under seal. The Court will not redact the full quote, nor will it redact mere references to the quote or text message….
3. Materials previously filed under seal will be posted to the public docket no later than 5:00pm on Friday, August 11, 2017. [Despite this, it appears that the filings remain sealed, as of late Saturday, August 12. -EV] The parties are directed to immediately send a letter to the Court indicating a time they are jointly available to physically review the sealed materials and agree on limited redactions consistent with this order.
4. The parties may no longer send e-mails to chambers regarding this case. The time for having this case fly below the radar is over. This case has been unsealed. The parties are encouraged to promptly advise the Court of a time they are jointly available to review the sealed records and agree on limited redactions consistent with this order.