On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-3052-99.
Before Judges Conley, Carchman and Weissbard.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2003
The appeal and cross-appeal presently before us arise from December 18, 2001, and July 10, 2002, orders granting cross-appellant Consumers for Auto Reliability and Safety's (CARS) motion to intervene for the purpose of obtaining access to certain documents provided by appellant Goodyear Tire and Rubber Company (Goodyear) to plaintiffs during discovery in their products liability litigation. The orders also grant intervenor access to 122 of 315 pages of those documents. Goodyear does not appeal the grant of CARS's motion to intervene. See Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 379 (1995). It does appeal the access order.
At the beginning of discovery, plaintiffs and Goodyear agreed to a protective order, obviously in anticipation that some of the discovery documents would eventually become court filings. Plaintiffs and Goodyear ultimately settled and none of these documents were ever filed with the court, except as part of motions relating to intervenor's efforts to gain access to the discovery documents. As we understand the current legal principles applicable to intervenor's efforts to gain such access, intervenor has no legal basis therefor. This is because the documents remained in the private possession of litigation counsel, never becoming a part of the court files, either by way of a nondiscovery pretrial motion*fn1 or trial proceeding. Thus, while the trial judge's analysis of the good cause criteria that must be demonstrated under R. 4:10-3 for the purposes of a protective order and his application of those criteria to the documents at issue here is well supported, his fundamental legal premise for access is not.
We, therefore, reverse. In doing so, we need not tarry long on the subject. As we have said, the documents produced during discovery never became a part of the court records, aside from the motions that produced the orders now before us. There is, of course, a"presumption" of public access to documents filed with the court in connection with civil litigation. Hammock v. Hoffmann-LaRoche, Inc., supra, 142 N.J. at 375. That presumption, however, does not apply to discovery motions, id. at 380, and may be overcome upon a demonstration that the"need for secrecy substantially outweighs the presumption of access." Id. at 381. Neither the"presumption" nor the outweighing considerations are applicable here. This is so because"there continue[s] to be confidentiality of materials submitted in the discovery process. The discovery delivered to a plaintiff's counsel under a protective order is not subject to public access as long as it remains in the private domain of plaintiff's counsel." Id. at 379.*fn2 That is the situation here.
In rejecting appellant's contention that intervenor did not have a presumptive right of access to unfiled discovery documents, the trial judge wrote:
This argument, although superficially appealing, overlooks an important premise of Hammock. The Court acknowledged in Hammock that there was a valid protective order in place between plaintiff and defendant Roche. The procedural history recited by the Court indicates that after plaintiff had sought some 1,000 internal Roche documents in discovery, Roche moved for a protective order pursuant to Rule 4:10-3. Id. at 362. In support of that motion Roche had filed with the trial court two sworn affidavits, one by a doctor. Id. The affidavits"explained that some of the information sought was essential" to Roche's applications with the Food and Drug Administration required"to obtain approval to market a prescription drug." Id. FDA regulations provided that the data contained in such filings is not subject to public disclosure. Id., citing 21 C.F.R. §20.111(d).
Having the benefit of those affidavits and the applicable federal regulations, the trial court in Hammock made a specific finding that"good cause" existed under Rule 4:10-3(g) justifying the entry of a protective order sealing the documents. Id.
We disagree with the judge's conclusion that the existence of a"valid" protective order in Hammock, as opposed to the consent protective order here, requires us to ignore the fundamental principle espoused in Hammock that there exists no right of public access to unfiled discovery documents. The protective order in Hammock was important there because the documents at issue, in fact, were filed court documents. Thus, the Court began its opinion,"[t]his case requires us to decide whether the public has a right of access to judicial records and materials filed with the court in civil litigation." Hammock, supra, 142 N.J. at 360-61 (emphasis added). Simply put, the Hammock documents were subject to a presumption of public access. When that presumption arises, the opposing party must rely upon the provisions of R. 4:10-3 if public access is to be protected against and must, thus, have a"valid" protective order in place. That is not the case here.
Intervenor argues that:"Under Rule 4:10-3, there is a presumptive statutory right of access to discovery documents." We reject this contention as entirely without basis. Certainly there is nothing in the text of R. 4:10-3*fn3 which creates a presumptive right of access to unfiled discovery documents. Were R. 4:10-3 such a substantive provision, the Court in Hammock surely would have included the rule in its reference to the available avenues by which the public may access certain records. See Hammock, 142 N.J. at 370-71.*fn4
Intervenor, however, asserts that several federal cases which construe Federal Rule 26, the federal counterpart to R. 4:10-3, support its position, citing Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157 (3d Cir. 1993), Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988), and Stinson, Lyons, Gerlin & Bustamante v. Prudential Ins. Co. of Am., 736 F. Supp. 614 (D.N.J. 1990), aff'd, 944 F.2d 1149 (3d Cir. 1991). These cases are inapposite. To be sure, there is language in all three to the effect that:"As a general proposition, pretrial discovery must take place in the public, unless compelling reasons exist for denying the public access to the proceedings." Public Citizen v. Liggett Group, Inc., supra, 858 F.2d at 789. See Leucadia, supra, 998 F.2d at 165, n.12; Stinson, supra, 736 F. Supp. at 618-19. But all three cases discuss public access to discovery documents under Federal Rule 26 when Federal Rule 5(d), since amended, required that all discovery motions and responses be filed with the federal district courts. In all three cases, then, a presumptive right of access existed in the documents because they were court filings. This distinction was recognized in Leucadia when the court observed:
It has not been suggested that the"raw fruits" of discovery in the possession of private litigants that have not been filed with the court are subject to any right of access. As we explained in Bank of America [v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3rd Cir. 1986)],"discovery... which is ordinarily conducted in private, stands on a different footing than does a motion filed by a party seeking action by the court." 800 F.2d at 343. See Mokhiber v. Davis, 537 A.2d 1100, 1109 (D.C. App. 1988) ("no ...