On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal concerns public access to unfiled documents produced during discovery. In July 1997, a General Motors Suburban carrying members of the United States Air Force rolled over while traveling on a highway in Saudi Arabia. Three of the occupants were killed and another passenger was severely injured. The injured passenger and the estates of two of the deceased occupants (collectively, plaintiffs) filed a products-liability lawsuit against Goodyear Tire & Rubber Co. (Goodyear) and other parties, alleging that the accident was caused by tread separation on the vehicle's Light Truck Load E (LRE) tires manufactured by Goodyear.
In March 2000, plaintiffs and Goodyear, by consent, entered into a "Proposed Stipulation and Protective Order Regarding Pre-Trial Documents to be Produced by Goodyear Tire & Rubber Co." Without making any findings, a trial court signed the Protective Order in July 2000. Under the terms of the Protective Order, Goodyear was permitted to earmark as confidential certain information it produced during discovery. The parties were prohibited from disclosing any items so designated to any persons other than their "employees, experts or consultants employed and retained in connection with this specific action." In addition, plaintiffs could disseminate confidential materials to "other attorneys with similar cases against Goodyear" provided that Goodyear received proper notice of the disclosure and the recipients of the information agreed to the terms of the Protective Order.
Plaintiffs were entitled to challenge Goodyear's designation of any item as confidential, but were required to treat the disputed items as confidential until they either obtained Goodyear's written permission to do otherwise or allowed Goodyear reasonable time to obtain a court order finding the items protected. Paragraph 5 of the Protective Order contained a sealing provision that effectively "maintain[ed] protection for confidential information divulged in pre-trial motions or other submissions, subject to the court's ultimate power to find that such materials may be publicly disclosed." The Protective Order also contained a provision requiring plaintiffs to return all confidential materials to Goodyear "upon completion of the trial and any appeals in this case, or upon conclusion of any settlement."
By way of motion and cross-motion, plaintiffs challenged and Goodyear defended the designation of a number of discovery documents as confidential. While these motions were pending, Consumers for Auto Reliability and Safety (CARS), a national non-profit automobile and consumer safety organization, filed a motion to intervene in order to obtain access to the contested documents based on allegations that the tread separation problem had caused a series of accidents and that public safety required access to the discovery in this litigation.
In the fall of 2001, after briefs had been filed on the CARS motion, plaintiffs settled their claims with the defendants. Thereafter, plaintiffs withdrew their opposition to Goodyear's motion to enforce the Protective Order sometime prior to the oral argument on CARS' intervention motion in October 2001. On December 18, 2001, the trial court granted CARS's motion to intervene for the purpose of obtaining access to documents produced in discovery in the underlying litigation and denied Goodyear's motion to enforce the Protective Order "without prejudice, subject to final determination of the validity of the consent order." The court rejected Goodyear's argument that unfiled discovery materials are insulated from access. The court also noted that trial judges should not "rubber-stamp" consent orders that contain blanket confidentiality provisions that are not accompanied by outside support demonstrating good cause for their approval. On December 19, 2001, pursuant to the settlement agreement, plaintiffs formally dismissed their claims against Goodyear.
The trial court offered a "preferable model of practice" for obtaining protective orders suggesting that, as occurred in Hammock by Hammock v. Hoffman-LaRoche, Inc., applications for confidentiality orders should be supported by affidavits detailing the need for confidentiality, citing relevant legal authority if governing law is in doubt. If found to be necessary, the parties seeking a protective order should be prepared to prove their entitlement in a limited evidentiary hearing. The trial court indicated that it would refer its suggestions to the Civil Practice Committee.
Based on its interpretation of Hammock, the trial court concluded that the Protective Order had to be reexamined. The court noted that Goodyear's affidavit filed in support of its motion for confidentiality suggested the presence of trade secrets and self-critical assessment and, therefore, may have been sufficient to justify entry of the Order. After reviewing additional briefs and affidavits submitted by CARS and Goodyear and conducting an in camera review, the court presented a document-by-document summary of the results of its review, unsealing several documents. Those individual determinations are not at issue here.
Although recognizing that the unsealed documents remained subject to the private stipulation of confidentiality between plaintiffs and Goodyear, the court determined that the private agreement was unenforceable as against an application for public access. In respect of Goodyear's claim for justifiable reliance on confidentiality, the court found that absolute reliance was not justifiable or reasonable in light of the provision enabling plaintiffs to challenge a designation of a document as confidential.
The Appellate Division reversed, finding that neither Rule 4:10-3 nor Hammock creates a right of public access to unfiled documents exchanged during discovery in civil litigation. Accordingly, the panel held that CARS lacked a legal basis for access to the unfilled documents regardless of whether of not a protective order was in place. The Supreme Court granted certification.
HELD: Neither Rule 4:10-3 nor Hammock creates a right of public access to unfiled documents exchanged during discovery in civil litigation. The matter is referred to the Civil Practice Committee to address whether or not, going forward, that position should be maintained.
1. Rule 4:10-3 is not an independent source of entitlement to public access to discovery documents; rather, it is only a procedural device by which documents, otherwise accessible, can be protected. Moreover, the holding in Hammock does not encompass both filed and unfiled documents. (P. 13)
2. The universal understanding in the legal community is that unfiled documents in discovery are not subject to public access. There are compelling arguments both for and against revisiting that notion. Despite the academic debate and the national efforts of the Association of Trial Lawyers to obliterate the distinction between filed and unfiled documents in discovery, the distinction remains intact across the country. Furthermore, the 2000 Amendment to Fed. R. Civ. P. 5(d), setting forth that discovery must not be filed, unless it is "used in the proceeding," bolsters the distinction between filed and unfiled documents and supports the conclusion that unfiled discovery is not meant to be accessible to non-parties. (Pp. 14-16)
3. Because New Jersey's Court Rules do not address unfiled discovery, and because Hammock has been overread, the matter is referred to the Civil Practice Committee to address whether, going forward, we should maintain the position that unfiled discovery is insulated from forced public access or whether changes should entail. (P. 17) Judgment of the Appellate Division is AFFIRMED. The issues to which the Court has adverted are referred to the Civil Practice Committee for consideration.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI and WALLACE join in this PER CURIAM opinion. JUSTICE ALBIN did not participate.