Free Speech

More on Sealing from the Third Circuit

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

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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 First, from Lampon-Paz v. U.S. Dep't of Justice, 2019 WL 5681351 (3d Cir. Nov. 1, 2019) (nonprecedential):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.