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Bracco Diagnostics, Inc. v. Amersham Health Inc.

July 18, 2007

BRACCO DIAGNOSTICS, INC., PLAINTIFF,
v.
AMERSHAM HEALTH INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bongiovanni, Magistrate Judge

OPINION TO SEAL

Currently before the Court are seventy-five Motions to Seal pursuant to L.Civ.R. 5.3 filed by Plaintiff Bracco Diagnostics, Inc. ("Bracco") and Defendants Amersham Health, Inc., et al. ("Amersham"). The Court has determined that the issuance of an omnibus opinion would expedite adjudication of each motion, and serve the interest of judicial economy. Oral argument was held on March 7, 2007 regarding Amersham's Motion to Seal the Final Pretrial Order [Docket Entry No. 193]. A supplemental oral argument was held on June 14, 2007 regarding all 75 outstanding sealing motions [Docket Entry No. 486]. For the following reasons the Motions are GRANTED in part and DENIED in part.

I. Background

The claims and history of this protracted litigation are extraordinarily familiar to the parties and Court, and shall not be repeated here at length. The underlying claims relate to disputes between the parties of improper advertising, sales, and marketing practices of x-ray contrast agents, specifically Bracco's product Isovue, and Amersham's products Omnipaque and Visipaque. This matter was instituted on December 16, 2003 and a bench trial began on May 7, 2007, before the Honorable Freda L. Wolfson, U.S.D.J. [See Docket Entry Nos. 481- 485].

In anticipation of trial, beginning on March 2, 2007, the parties began to file Motions for Summary Judgment, Motions In Limine and Daubert Motions. In conjunction with these Motions the parties filed one Motion to Seal with each brief packet submitted to the Court. The result of this futile exercise was 299 separate filings by the parties on the docket, not to mention the numerous quality control messages, deadlines and remarks entered by the Court. See Docket Entry Nos. 177 -475. Ironically, every document filed by both parties, other than the Motions to Seal, were improperly filed with redacted text.*fn1

On April 18, 2007, an in person conference was held before the Honorable Freda L. Wolfson, U.S.D.J., to discuss the numerous motions and other pretrial matters. The parties were instructed to meet and confer and submit a narrower list of items which they believe should be sealed from public access. After receiving permission from the Court, both Bracco and Amersham submitted separate revised lists on May 1, 2007 (hereinafter respectively "Bracco Application" and "Amersham Application"). Bracco also submitted an opposition to Amersham's Application on May 2, 2007 ("Bracco Opposition").

On June 14, 2007, the Court conducted a telephone conference with the parties during a break in trial to reassess the parties' views on the pending motions. The Court inquired whether the parties had reconsidered or refined the documents they sought to seal due to the open nature of trial. In archetypical fashion, both parties reaffirmed that their respective positions had not changed, and that they would not be able to agree upon an amicable resolution to these Motions.

II. Analysis

A. Sealing Materials pursuant to Local Civil Rule 5.3

"Every Inhabitant of the Countrie shall have free libertie to search and veewe any Rooles, Records, or Regesters of any Court..."

The Massachusetts Body of Liberties at Article 48 (1641). The concept of public access to Court records has existed on this continent over 100 years prior to the signing of the Declaration of Independence. Following the adoption of the Bill of Rights there were well established common law and First Amendment based rights of the public of access to certain government controlled documents including materials filed with or held by the courts. See generally Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978). In the courts of the State of New Jersey, a non-party's right to inspect public documents has been recognized since at least 1879. State ex. rel. Ferry v. Williams, 41 N.J.L. 332 (N.J. Sup. Ct. 1879) ("The documents in question are of a public nature, and the rule is that every person is entitled to the inspection of such instruments, provided he shows the requisite interest" which includes representing a "public or common right"). The Third Circuit also has a long tradition of recognizing a common law right of public access to judicial proceedings and records. See United States v. Crisden, 648 F.2d 814, 819 (3d Cir. 1981); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984); Littlejohn v. Bic Corp., 851 F.2d 673, 678 (3d Cir. 1988); Lecaudia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993); In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001).

Over time this doctrine has evolved into "a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith." Leucadia, 998 F.2d at 164. The public's right of access is "not absolute" and must be weighed against the litigants interest in secrecy. Id. at 165. In re Cendant Corp., 260 F.3d at 194. In fact, "[e]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." In re Cendant Corp., 260 F.3d at 194 (quoting Nixon, 435 U.S. at 598 (citing Schmedding v. May, 85 Mich. 1, 5-6 (1891) and Flexmir, Inc. v. Herman, 40 A.2d 799, 800 (N.J. Ch.1945) (courts deny access to filed documents where they may be used as sources of business information that might harm a litigant's competitive standing))). Nevertheless, when the subject of the motion to seal is a discovery motion, there is no presumptive right of public access. Leucadia, 998 F.2d at 164-165 (raw discovery is ordinarily inaccessible to the public, and therefore a motion precipitated by inadequate discovery responses or aggressive discovery demands should not be presumptively accessible to the public). The presumption of public access to non-discovery motions can be rebutted with a showing that good cause exists for the protection of the subject materials. In re Cendant Corp., 260 F.3d at 194; See also Skinner v. Ashan, 2007 WL 708972 at *2 (D.N.J. March 2, 2007). "Good cause exists when a party makes a particularized showing that disclosure will cause a clearly defined and serious injury to the party seeking closure." Securimetrics, Inc. v. Iridian Techs., Inc., 2006 WL 827889 at *2 (D.N.J. March 30, 2006)(internal quotations omitted). In fact, to determine whether good cause exists, a court should look to the factors outlined in this District's Local Civil Rule 5.3. Id.; See generally Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).

L.Civ.R. 5.3 was adopted to govern all requests by a party to seal or otherwise restrict public access to materials filed with or used by the Court, and judicial proceedings themselves. See Lite, N.J. Federal Practice Rules, Comment 1 to L.Civ.R. 5.3 (Gann 2007). The Rule was "intended to reflect Supreme Court and Third Circuit law." See Explanatory Note to Local Civil Rule 5.3. Although there is often confusion with the various routes a litigant may take to request that materials be sealed, the single constant is that any request to seal must be made by formal motion pursuant to L.Civ.R. 7.1. See L.Civ.R. 5.3(c)(1). As of March 9, 2007, a motion to seal must also include "[p]roposed findings of fact and conclusions of law ... with the motion papers in the proposed order." See L.Civ.R. 5.3(c)(2). The motion to seal must be available for public review and must describe the four factors outlined in the Rule. L.Civ.R. 5.3(c)(2). Prior to restricting public access, a court must determine: (1) the nature of the materials at issue, (2) the legitimate private or public interest which warrants sealing, (3) the clearly defined and serious injury that would result if the materials were not sealed, and (4) why any less restrictive alternative to sealing is not available. L.Civ.R. 5.3(c). SeealsoPansy, 23 F.3d 772. By applying these factors, the Court must determine whether the moving party has established good cause to seal the materials from public access.

B. Procedural Defects

Parties are often unaware of the procedure they must follow when filing a motion to seal. See generally Mary Pat Gallagher, Federal Court in N.J. Cracks Down on Wrongly Filed Sealing Motions, 186 N.J.L.J. 879 ("Lawyers are improperly filing motions to seal..."). When a protective order is in place, such as the instant matter, the parties may file "[a]ny materials deemed confidential by a party or parties ... under the designation "confidential materials"...[under seal] until such time as the motion is decided." L.Civ.R. 5.2(c)(3). This section "is intended to allow confidential materials to be filed and remain under seal until a motion to seal or otherwise restrict public access is ruled on." See Explanatory Note to Local Civil Rule 5.3(c)(3). In cases where a protective order has not been entered, parties should follow the provisions of L.Civ.R. 5.3(c)(6), which allows for the entry of a temporary sealing order until a formal motion, filed pursuant to L.Civ.R. 7.1, can be adjudicated by the court. Parties are forewarned that if the motion to seal is denied this material would then be available to public access. Bank of America Nat'l Trust and Savings Ass'n v. Hotel Rittenhouse Assoc., 800 F.2d 339 (3d Cir. 1988); See also Lite, N.J. Federal Practice Rules, Comment 4 to L.Civ.R. 5.3 (Gann 2007).

In the instant matter the parties improperly filed every underlying Motion in a redacted format. This is in direct contravention to the Court's Electronic Case Filing Policies and Procedures and the spirit of L.Civ.R. 5.3. See D.N.J. Electronic Case Filing Policies and Procedures at §§ 2,11,18 (redaction of personal identifiers is permitted, however a reference list with all identifying information must be filed under sealed in conjunction with the redacted document). Instead the parties should have filed each document that contained information designated as confidential under seal.*fn2 The Court would then have an electronic record of each document in its original form in perpetuity. Thereafter the Court would render a decision on each motion, and the Clerk of the Court would have either released the document for public access or retained the document under seal pursuant to the Court's direction. However, in the instant matter, the parties attempted to make an end run around the Court's policies by submitting a multitude of redacted documents on the docket which axiomatically restricts public access to the portions the parties wished to have sealed, irrespective of the Court's decision. The insidious process of filing redacted documents is wholly violative of the long established doctrine which states that documents filed with the Court are presumptively public in nature. Nevertheless, the Court shall defer articulating an appropriate remedy to ensure that It retains a complete electronic record of this matter, without overburdening the Clerk of the Court.

C. Sealing the Final Pretrial Order

Amersham filed a Motion to Seal the Final Pretrial Order ("FPTO"), which was opposed by Bracco (hereinafter "FPTO Moving Brief" and "FPTO Opposition Brief" respectively). Docket Entry No. 163. On March 7, 2007, the Court held a hearing advising the parties that their requests to seal were overbroad and providing the parties with an opportunity to supplement their positions. Docket Entry No. 261. On March 29, 2007, Amersham submitted their supplemental briefing which significantly reduced the information they ...


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