The opinion of the court was delivered by: FISHER
This motion is brought by The Bergen Evening Record Corporation (Record) to unseal certain documents in the within matter. The Record is presently a defendant in a libel suit filed in the Superior Court of New Jersey (Docket No. L-66934-80) by Lawrence J. Holt, Jr., an employee of Western Electric Company, Incorporated, as a result of an article published by the Record entitled "Trapping Office Wolves with Lawsuits." The article describes the action filed by Jereline Short against Western Electric, alleging sexual harassment by its employee Holt. The case was settled, and the parties requested that the court seal all of the deposition transcripts and the transcript of the settlement proceeding. The Record contends that, because of the pending libel suit against it, this court should lift its protective order unconditionally
and permit access to the sealed depositions, since they are relevant and necessary to the defense of the present libel action.
The Record argues that the protective order issued by this court in this matter violates its first amendment rights. It characterizes the order as a "prior restraint."
It is beyond question that this court has discretionary power to control and seal, if necessary, records and files in its possession. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570 (1978). In exercising this discretion, the court must weigh the interests of the public against those advanced by the parties. Id. at 602, 98 S. Ct. at 1314.
In Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir.1976), the court was faced with the issue of whether or not a restraining order violated Rodger's first amendment rights as a "prior restraint" of expression. Although the Third Circuit found that the district court sought to prohibit the disclosure of information on matters obtained independent of the court's processes, it held this to be prohibited as a "prior restraint." "For purposes of this appeal, we assume arguendo that if the district court had prohibited disclosure only of information derived from the discovery processes, its order would have been constitutional. . . ." (citation omitted). Id. at 1006.
In the case at hand, the only documents that have been sealed were obtained through the compulsory discovery process. There is nothing in the order which attempted to limit the parties' use of related information otherwise in its possession.
As a result of a clerical mistake, the transcript of the settlement proceeding has been disseminated and no longer is within the judicial process. Accordingly, I cannot and will not order it resealed. See United States v. New York Times Co., 403 U.S. 713, 722-24, 91 S. Ct. 2140, 2145-46, 29 L. Ed. 2d 822 (1971).
I have balanced the interests of the public against those advanced by Western Electric and have determined not to unseal the depositions. The defendant shall ...