The opinion of the court was delivered by: Irenas , Senior District Judge:
This case concerns Defendants' access to proprietary maintenance software that Plaintiff Avaya, Inc. and its predecessors developed and embedded in complex telephony systems that they designed, manufactured, and sold. *fn1 Over the course of six years, this case has become one of the most - if not the most - complicated case in the district. Added to this complexity is a thorough lack of transparency as the majority of the docket has remained under temporary seal pending an anticipated, but as yet unfiled, omnibus motion to seal. Presently before the Court are the parties' responses to this Court's May 17, 2012 Order to Show Cause why the entire record should not be unsealed. ( See Dkt. Nos. 496-98)
On February 9, 2010, Judge Goodman entered a Consolidated Consent
Discovery Confidentiality Order. (Dkt. No. 134) The Order provided,
inter alia , thirty-nine categories of "Protected
Litigation Materials," which restricted access of discovery materials
to both third parties and even named parties in this case.
*fn2 The Order also provided a procedure by which
the parties could file motions to seal documents filed on the docket.
The parties followed the February 9, 2010 Order until Judge Brown, in an effort to accelerate dispositive motion practice, on March 11, 2011, permitted the parties to file materials under temporary seal. *fn3 Using this procedure, the parties filed hundreds of document entries under temporary seal. ( See Dkt. Nos. 184-478) Each document entry can contain hundreds of pages. ( See, e.g., Dkt. No. 334, which contains over 400 pages)
Even judicial opinions have been filed under temporary seal. For example, on February 24, 2012, Avaya filed a motion to redact certain portions of Judge Brown's January 26, 2012 Opinion, which was granted on March 30, 2012. (Dkt. No. 469) The Order granting the Motion directed Plaintiff to file a redacted copy of the Opinion on the docket within five days. Plaintiff has yet to file a redacted version of the Opinion on the docket and the Opinion remains under temporary seal. At least two other Opinions also remain under temporary seal with no redacted version available to the public. (Dkt. Nos. 428, 430) The docket currently contains thousands of pages of temporarily sealed documents with no clear procedure for sifting through the morass.
On April 20, 2012, this case was reassigned to this Court. On May 17, 2012, this Court issued an Order to Show Cause why the entire record should not be unsealed. (Dkt. No. 496)
In response, Avaya now contends that only five categories of documents should remain sealed. *fn4 Defendants contend that only two categories of documents should remain sealed: (1) customer list documents, and (2) documents related to a settlement proposal from 2004. Defendants further contend that documents containing confidential business information should be filed on the docket in redacted form.
For the reasons that follow, the Court finds the parties' responses to the Order to Show Cause insufficient. Rather than unsealing the entire record, however, the Court will permit the parties one last opportunity to comply with this Court's Order and Third Circuit precedent.
"It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records." In re Cendant, Corp ., 260 F.3d 183, 192 (3d Cir. 2001). "That presumption disallows the routine and perfunctory closing of judicial records." Id. at 193-94 (citing Miller v. Indiana Hosp. , 16 F.3d 549, 551 (3d Cir. 1994). "The practical effect of the right to access doctrine is to create an independent right for the public to view proceedings and to inspect judicial records." Id. at 193.
This common law right of access, however, is not absolute. In certain limited circumstances, a party may seek the protection of confidential materials by a showing of good cause. Pansy v. Borough of Stroudsburg , 23 F.3d 772, 786 (3d Cir. 1994). The Local Rules embody this standard by requiring moving papers to describe: "(a) the nature of the materials or proceedings at issue, (b) the legitimate private or public interests which warrant the relief sought, (c) the clearly defined and serious injury that would result if the relief sought is not granted, and (d) why a less restrictive alternative to the relief sought is not available." L.Civ.R. 5.3(c)(2). "The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption." Leucadia, Inc. v. Applied Extrusion Techs., Inc. , 998 F.2d 157, 165 (3d Cir. 1993) (quoting Bank of America Nat'l Trust and Savings Ass'n v. Hotel Rittenhouse Assocs. , 800 F.2d 339, 344 (3d Cir. 1986).
Applying these standards is a fact-specific inquiry in which "specificity is essential." In re Cendant , 260 F.3d at 194. "Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." Id.
The first factor requires the movant to specify the materials sought to be sealed. The Court rejects the parties' approach to sealing documents by category. It is not up to the parties to decide "in good faith" whether specific documents fall within vague self-serving categories of documents. To retain a sealing order, the ...