The Volokh Conspiracy

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Free Speech

Can't Seal the Alleged Libel Attached to Motion Seeking Removal of the Libel


In Czernyk v. Bongiovanni,

  1. plaintiff sued defendant over an alleged rape;
  2. plaintiff's lawyer has recently made various public allegations about defendant and defendant's lawyer, including on plaintiff's lawyer's blog;
  3. on Friday, defendant's lawyer moved for an order requiring plaintiff's lawyer "to immediately remove the blog post page" and "a temporary gag order" on the plaintiff's lawyer "pending the outcome of the hearing on this issue" (see also defendant's lawyer's declaration); and
  4. in the process, defendant's lawyer sought to file a copy of the critical blog post under seal:

The motion at issue arises out of a series of disparaging statements made by Plaintiff and Plaintiff's counsel about Defendant and Defendant's counsel.

On January 20, 2022, Plaintiff appeared with her attorney, Susan Crumiller, on "Bronx Talk," a local television show in the Bronx to discuss her case. Counsel for Defendant, Priya Chaudhry, appeared on the second segment of the show and answered questions posed by the host. During Ms. Chaudhry's interview, Ms. Crumiller interjected multiple times to call Ms. Chaudhry a liar and make claims that Ms. Chaudhry's statements about Counterclaim- Defendant's monetary demand of one-million-dollars during the pendency of the Fordham investigation were lies.

On January 21, 2022, in response to Ms. Crumiller's defamatory statements, counsel for Bongiovanni wrote a letter to Ms. Crumiller stating that her comments constituted actionable defamation and asking her to retract her defamatory statements. Ms. Crumiller first responded by email demanding that Defendant's counsel identify the witnesses to the one million dollar demand. Defendant's counsel responded with the requested information and reiterated the request for retraction of Ms. Crumiller's statements.

Ms. Crumiller responded by publicly publishing the letter from Defendant's counsel, again accusing Defendant's counsel of lying, generally mocking Defendant's counsel, and calling Defendant "a rapist" on her law firm's website, blog, and on social media. Ms. Crumiller's post about Defendant's counsel was one in a substantial string of expletive-ridden posts disparaging other adversaries and their counsel. Plaintiff later re-posted Ms. Crumiller's post to her personal Instagram account and Ms. Crumiller and her agents re-posted the original defamatory blog post on Twitter and other platforms.

In response to this behavior, and in an effort to curb any additional damages to Defendant and his counsel, Defendant has moved this Court for a hearing inquiring into Ms. Crumiller's actions and requesting additional interim relief as Ms. Crumiller's actions violate the New York Rules of Professional Conduct. In support of that motion, Defendant has filed a memorandum of law and the Declaration of Priya Chaudhry in Support of Defendant's Motion for Expedited Hearing and Interim Relief. Exhibit E [which the motion seeks to seal] is a copy of the webpage from Crumiller P.C.'s website containing the offending language. This exhibit contains precisely the harmful language that Defendant and his counsel seek to address with their motion and to file this exhibit, unsealed, to the public record would merely exacerbate the damages which they seek to remedy….

There is undoubtedly a presumption of public access to documents on a judicial record, however documents "may be sealed if specific, on the record findings are made demonstrating closure is essential to preserve higher values and is narrowly tailored to serve that interest." … In making this determination, the court balances the movant's interest in maintaining the secrecy of the documents with the public's interest in accessing the information contained in the document.

Good cause to file documents under seal has been found where, as here, public access to the documents or information at issue is likely to cause harm to the movant.

Here, Defendant sees no possible benefit to the public in having access to this document. The document contains defamatory and abusive language aimed at Defendant and his counsel. The content of the document is extremely damaging to the personal and professional reputations of both Defendant and his counsel. Thus, the harm to movant here would vastly outweigh any interest the public might have in viewing the content of the document….

No, said Judge John Koeltl (S.D.N.Y.) this afternoon, ordering the exhibit unsealed:

The defendant has failed to show compelling reasons for such sealing, or that such sealing would be effective in view of other dissemination of the same material.

I appreciate why Ms. Chaudhry would want the attachment containing the alleged libel sealed, and I appreciate that keeping it unsealed tends to in some measure exacerbate the harm of the libel. But in our legal system, decisions by courts—especially decisions that implicate important constitutional rights—generally have to be done in public and subject to public scrutiny, not in secret. That means that the public has to be able to see the bases that the parties urge for those decisions. And it's very hard to understand a decision about whether some material is libelous and should be ordered taken down (the remedy that Ms. Chaudhry seeks) without being able to see that material.

For two of my forays into cases raising similar questions, see Parson v. Farley (N.D. Okla. 2018) and Manhattan Telecommunications Corp. v. Granite Telecommunications, LLC (Del. Ct. Ch. 2020).