On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8180-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Yannotti and Chambers.
Appellant Dr. Zeil Rosenberg appeals from an April 9, 2009 order sealing portions of the record of a civil trial. We affirm.
Rosenberg sued his former employer, Becton, Dickinson and Company (Becton), claiming he was wrongfully terminated in violation of Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, after he raised awareness about an internal audit that revealed several Food and Drug Administration (FDA) regulatory violations. Rosenberg also claimed breach of employment contract and breach of implied covenant of good faith and fair dealing. Becton countersued, claiming breach of employment contract, among other counts. Ultimately, a jury found neither party liable to the other on any of the claims.
Becton manufactures a broad range of medical devices. Rosenberg was Becton's Worldwide Business Leader and Medical Director of Immunizations. Rosenberg alleged that his termination stemmed from his "whistle-blowing" about FDA violations detailed in a report by META Solutions, Inc. (META Report). This report contains the findings of an independent audit of Becton's clinical trial practices.
The basis of this appeal stems from an order sealing portions of the record that included the META Report and related documents (META Documents). Becton voluntarily commissioned META Solutions to perform a "regulatory compliance assessment" of the processes and procedures utilized in a variety of Becton's clinical trials. The report is thirty-two pages long and begins with a disclaimer that reads:
The information contained in this document is considered to be proprietary and confidential and may not be reproduced or used in any manner without the expressed written permission of META Solutions, Inc. or the audited company. Any distribution of this document in whole or in part, or the divulgence of any of its contents to anyone outside of the company to which it has been submitted is prohibited.
The report provides detailed information about Becton's clinical trials, chemical makeup of solutions, procedures for clinical trials, and methods of data management. The additional META Documents are preliminary progress reports and PowerPoint presentations that summarize the META Report's findings.
Prior to trial, Becton moved for a protective order of the META Report and Documents. Judge Sybil R. Moses ruled that "good cause" existed to deem the META Report and Documents confidential pursuant to Rule 4:10-3(g), which protects "trade secret or other confidential research, development, or commercial information."
The case was tried by a different judge and a jury. The original order provided that the META Documents could be used for litigation purposes only. The trial judge subsequently modified the order so that the META Documents could be used during the trial as evidence. The judge reserved judgment on how to treat the META Documents after trial.
During pre-trial exchange, Becton listed the META Report on its exhibit list. Though Becton filed four in limine motions, none sought to preclude or limit the use of the META Report. During trial, the META Documents were entered into evidence and were frequently used as exhibits. The courtroom was open to the public. The Meta Documents were displayed on a five-by-eight-foot projection screen throughout the trial.
After the trial concluded, Becton filed a motion to seal portions of the record and to maintain the protective order over the META Documents. The portion of the record containing the META Documents was sealed by an April 9, 2009 order. The trial judge found that the META Documents were "highly confidential and proprietary information that [would] provide competitors with information that [would] injure [Becton]." Most significantly, the judge found that a "chilling effect" would be placed on the company's ability to engage in future self-critical analysis if it knew the results would be made publicly available. Thus, the judge found it ...