SYLLABUS
(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).
Argued April 27, 2004 -- Decided July 28, 2004
PER CURIAM
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.
SUPREME COURT OF NEW JERSEY
A-
52 September Term 2003
ESTATE OF ROBERT FRANKL, deceased, by Administratrix of the Estate, LORI FRANKL, and
LORI FRANKL, ERIC FRANKL, ASHLEY FRANKL and BRIAN FRANKL, Individually, and Estate of
KAREN BUDIAN, deceased, by Administrator of the Estate, GEROLF O. BUDIAN, and GEROLF
O. BUDIAN and BENJAMIN BUDIAN, Individually, GARRY E. SITZE and TOMMYE SITZE, his
wife,
Plaintiffs,
v.
GOODYEAR TIRE AND RUBBER COMPANY,
Defendant-Respondent,
and
JOHN DOE (a fictitious name representing a class of fictitious defendants), ABC CORP.
(a fictitious name representing a class of fictitious defendants), HUTCHINSON INDUSTRIES, INC., HUTCHINSON
CORPORATION, HUTCHINSON, S.A., ROBERT ROE (a fictitious name representing a class of fictitious
defendants), XYZ CORP. (a fictitious name representing a class of fictitious defendants), GENERAL
MOTORS CORPORATION,
ROBERT DOE (a fictitious name representing a class of fictitious defendants), DEF CORP.
(a fictitious name representing a class of fictitious defendants), HAYES LEMMERZ INTERNATIONAL, INC.,
JOHN ROE (a fictitious name representing a class of fictitious defendants)
and GHI CORP. (a fictitious name representing a class of fictitious defendants),
Defendants,
and
CONSUMERS FOR AUTO RELIABILITY AND SAFETY,
Intervenor-Appellant.
Argued April 27, 2004 – Decided July 28, 2004
On certification to the Superior Court, Appellate Division.
Rebecca E. Epstein, a member of the District of Columbia bar, argued the
cause for appellant (Wilentz, Goldman & Spitzer, attorneys; Ms. Epstein and Jennifer Sarnelli,
on the briefs).
George W. Rooney, Jr., a member of the Ohio bar, argued the cause
for respondent (Kelly, McLaughlin & Foster, attorneys; Mr. Rooney, Robert G. Kelly, Jr.,
Jonathan A. Eron, Jeffrey J. Casto, a member of the Ohio bar, and
Rachael L. Russo, a member of the Ohio bar, on the briefs).
Alan Y. Medvin submitted a brief on behalf of amici curiae Public Citizen,
Inc., and Center for Auto Safety (Medvin & Elberg, attorneys).
Bruce S. Rosen submitted a brief on behalf of amici curiae The New
York Times Company, North Jersey Media Group Inc., New Jersey Chapter of the
Society for Professional Journalists, New Jersey Foundation for Open Government and New Jersey
Media Lawyers Association (McCusker, Anselmi, Rosen, Carvelli & Walsh, attorneys; Jennifer A. Borg,
of counsel).
Anne M. Patterson and Maha F. Munayyer submitted a brief on behalf of
amicus curiae New Jersey Defense Association (Riker, Danzig, Scherer, Hyland & Perretti, attorneys).
Anita R. Hotchkiss submitted a brief on behalf of amicus curiae Product Liability
Advisory Council, Inc. (Porzio, Bromberg & Newman, attorneys; Ms. Hotchkiss, Linda Pissott Reig
and David C. Uitti, on the brief).
John F. Brenner submitted a brief on behalf of amicus curiae Pharmaceutical Research
and Manufacturers of America (McCarter & English, attorneys).
Thomas J. Cafferty and Arlene M. Turinchak submitted a brief on behalf of
amici curiae New Jersey Press Association and Reporters Committee for Freedom of the
Press (McGimpsey & Cafferty, attorneys).
PER CURIAM
The full history of this case is set forth in detail in the
decision of the Appellate Division. Estate of Frankl v. Goodyear Tire and Rubber
Company, __ N.J. Super. __ (App. Div. 2003). We recount only those facts
and procedures necessary to our disposition.
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 lawsuit against Goodyear Tire & Rubber Co. (Goodyear) and other parties. The
suit alleged that the accident was caused by tread separation on the vehicle’s
Light Truck Load Range 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 such 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 protected until plaintiffs either obtained
Goodyear's written permission to do otherwise or allowed Goodyear reasonable time to obtain
a court order finding that the disputed items were protected. Goodyear had the
burden of establishing the confidentiality of the disputed items on any such motion
to the court. 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."
Subsequently, by way of motion and cross-motion, plaintiffs challenged and Goodyear defended the
designation of a number of discovery documents as confidential. The materials filed with
the court relating to the motion to enforce the confidentiality agreement remained under
seal. Although the record is not crystal clear on the subject, apparently thirty-one
documents were at issue.
While the 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 case.
In the fall of 2001, after briefs had been filed in respect of
CARS’ motion, a settlement between plaintiffs and defendants was reached. As a result,
plaintiffs withdrew their opposition to Goodyear's motion to enforce the Protective Order. That
withdrawal occurred 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 a final determination of the validity of the consent order."
In so doing, the court specifically rejected Goodyear’s argument that unfiled discovery materials
are insulated from access. The court also stated that trial judges should not
"rubber-stamp Consent Orders containing blanket confidentiality provisions that are not accompanied by extrinsic
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 then offered a "preferable model of practice" for obtaining protective
orders suggesting that, as occurred in Hammock by Hammock v. Hoffman-LaRoche, Inc.,
142 N.J. 356 (1995), applications for confidentiality orders should be supported by affidavits detailing
the need for confidentiality. In addition, citations to relevant legal authority should be
provided if "governing law is in doubt." "In exceptional instances where a prima
facie showing of good cause is not clear from the moving papers, or
where there are substantial countervailing reasons for denying the order, the parties seeking
its entry should be prepared to prove their entitlement in a limited evidentiary
hearing[.]" The trial court indicated that it would refer those suggestions to the
Civil Practice Committee. The court noted, however, that litigants could bypass those procedures
by "entering into a stipulation of confidentiality, inter sese, rather than seeking the
Court's imprimatur of their arrangement," and relying on contract law principles for enforcement.
Based on its interpretation of Hammock, supra, the trial court concluded that the
Protective Order had to be reexamined. In so doing, the court recognized that
the affidavit Goodyear filed in support of its motion for confidentiality, "suggests the
presence of both trade secrets and self-critical assessment in the Goodyear documents sought
by the intervenors" and, therefore, "may have been sufficient to justify entry of
the Order" if it had been presented contemporaneously with the order. After reviewing
additional briefs and affidavits submitted by CARS and Goodyear and conducting an in
camera review of the disputed documents, the trial court presented a document-by-document summary
of the results of its review.
See footnote 1
Those individual determinations are not at issue
here.
Although recognizing that the unsealed documents remained "subject to the private Stipulation of
Confidentiality between Goodyear and the original plaintiffs," the court determined that the private
agreement was unenforceable as against an application for public access.
In respect of Goodyear’s claim of justifiable reliance on confidentiality, the court found
that although Goodyear may have relied on the Protective Order when it produced
certain materials during discovery, absolute reliance was not justifiable or reasonable because of
the provision allowing plaintiffs to challenge Goodyear's designation of a document as confidential.
In addition, the court noted that reliance on a protective order “should not
be outcome determinative and should only be one factor that a court considers
when determining whether to modify an order of confidentiality."
Goodyear appealed and the Appellate Division reversed. The panel differed from the trial
court on only one specific point. It concluded that neither Rule 4:10-3 nor
Hammock, supra, 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 unfiled documents regardless of whether or not a
protective order was in place.
We granted CARS’ petition for certification.
178 N.J. 452 (2004). We also accorded
amici status to Public Citizen, Inc., the Center for Auto Safety, the Product
Liability Advisory Council, the New Jersey Defense Association, The New York Times,
See footnote 2
Pharmaceutical
Research and Manufacturers of America, and the New Jersey Press Association.
See footnote 3
I
CARS does not advance a common law or a constitutional argument in support
of access, but argues only that the good-cause requirement of Rule 4:10-3 gives
the public the right to seek access to discovery with regard to both
filed and unfiled materials. It further argues that important public safety considerations require
such access.
Goodyear counters that New Jersey does not recognize a right of access to
unfiled documents; that CARS, as an intervenor, has no substantive rights; and that
access to unfiled discovery is not needed to protect the public from defective
products because there are governmental agencies charged with that task.
See footnote 4
Amici Public Citizen Inc. and the Center for Auto Safety argue, essentially, that
“if non-parties are not permitted to question the validity of blanket protective orders,
such orders can be routinely used to prevent scrutiny of corporate misconduct, or
thwart disclosure of valuable health and safety information.”
Amici New York Times and the New Jersey Press Association similarly assert that
this Court should extend the presumption of public access to unfiled discovery documents
in cases involving public hazards or misconduct by government officials. Citing Hammock, supra,
amici argue that New Jersey common-law supports such an extension. They also argue
that stipulated protective orders are not based on individualized findings of good cause
as required by Rule 4:10-3 and, hence, should not be afforded the same
level of protection as a protective order based on good cause findings. Specifically,
amici argue that Hammock, supra, merely acknowledges no presumption of public access to
unfiled discovery, but leaves access to such discovery to the “good cause” test
in Rule 4:10-3.
Amici Product Liability Advisory Council and the New Jersey Defense Association argue that
the trial court’s decision would eviscerate the protective order as a discovery tool
because a detailed document-by-document analysis would be prohibitively expensive, and the ability of
a third party to intervene would limit parties’ willingness to rely on protective
orders.
Amicus curiae Pharmaceutical Research and Manufacturers of America argues that allowing public access
to unfiled discovery in litigation involving the industry would create disincentives for research
and development of new drugs because of the inability of the industry to
guard its trade secrets. Furthermore, this amicus argues the pharmaceutical industry has consistently
relied on New Jersey practice, allegedly reinforced by this Court’s decision in Hammock,
supra, that documents produced in discovery will not be placed in the public
domain if they are subject to a protective order and are not filed
with the court.
II
Rule 4:10-3 provides:
Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including, but not limited to, one or more of
the following:
(a) That the discovery not be had;
(b) That the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(c) That the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(d) That certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters;
(e) That discovery be conducted with no one present except persons designated by
the court;
(f) That a deposition after being sealed be opened only by order of
the court;
(g) That a trade secret or other confidential research, development, or commercial information
not be disclosed or be disclosed only in a designated way;
(h) That the parties simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just, order
that any party or person provide or permit discovery. The provisions of R.
4:23-1(c) apply to the award of expenses incurred in relation to the motion.
Because we agree with the Appellate Division that that rule is not an
independent source of entitlement to public access to discovery documents, but only a
procedural device by which documents, otherwise accessible, can be protected, and because Hammock’s
holding does not encompass both filed and unfiled documents, we now affirm.
The universal understanding in the legal community is that unfiled documents in discovery
are not subject to public access.
See footnote 5
Seattle Times, supra, 467 U.S. at 33;
see also In re Alexander Grant & Co. Litig.,
820 F.2d 352, 355
(11th Cir. 1987) (finding appellants’ common law right of public access does not
extend to discovery not part of public record); Leucadia, Inc. v. Applied Extrusion
Tech. Inc.,
998 F.2d 157, 164 (3d Cir. 1993) (holding discovery motions and
supporting materials are not subject to presumptive right of access because that would
render “raw discovery, ordinarily inaccessible to the public,” effectively accessible); Oklahoma Hosp. Ass’n,
supra, 748 F.
2d at 1425 (holding parties to stipulated protective order cannot be
compelled to distribute unfiled discovery to public); Laurie Kratky Doré, Secrecy by Consent:
The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre
Dame L. Rev. 283, 346-48 (1999).
Some legal scholars suggest a need to revisit the notion that unfiled discovery
documents are insulated from public access. Professor Arthur Miller details the arguments for
and against creating a presumption of public access to all discovery materials in
Confidentiality, Protective Orders, and Public Access to the Courts,
105 Harv. L. Rev.
427 (1991). Some of the arguments for the presumption of public access are
as follows: 1) it would advance important societal interests, primarily those of public
health, safety, and the administration of public office, interests that often are not
represented by parties in the litigation; 2) it would improve the judicial system’s
overall efficiency by avoiding duplication of discovery efforts; and 3) it would eliminate
the conflicts created by the current system whereby an attorney must agree to
confidentiality for the current client’s benefit despite the result that potentially harmful information
that would benefit the public will be withheld. Miller, supra, at 477-82.
The arguments against a presumption of public access include the notions that such
access would 1) invade the privacy of litigants and non parties; 2) jeopardize
a litigant’s right to the exclusive use of private property, including trade secrets
and other competitive commercial information; 3) unjustly harm reputation, profitability, and even the
viability of socially beneficial ventures; 4) undermine the confidentiality and hence the investment
value of important research and development; and 5) limit judicial discretion necessary to
advance discovery and litigation generally. Id. at 464-74.
Despite the academic debate and state-by-state efforts by the
Association of Trial Lawyers
of America
to obliterate the distinction between filed and unfiled documents in discovery,
See footnote 6
the distinction remains intact across the nation.
See footnote 7
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. Fed. R. Civ. P. 5(d)); and see S.E.C. v. TheStreet.com,
273 F.3d 222, 233 n.11 (2d Cir. 2001) (expressing doubt that In Re
Agent Orange Prod. Liabil. Litig.,
821 F.2d 139, 146 (2d Cir.) (finding presumption
of public access to all discovery relying on Fed. R. Civ. P. 5(d),
which then required that all discovery be filed), cert. denied
484 U.S. 953,
108 S.Ct. 344,
98 L.Ed.2d 370 (1987), would survive the new Fed. R.
Civ. P. 5(d)).
See footnote 8
Because New Jersey’s Court Rules do not address unfiled discovery explicitly, and because
Hammock has been overread as clearly weighing in on the issue, we refer
this matter 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 are warranted in that approach, and if so, what those
changes should entail. Among the questions the Committee should address are the following:
Whether unfiled discovery should be immune from public access, presumptively immune, or accessible
on the same terms as filed discovery; if accessible, how the burden of
going forward and the burden of proof should be allocated; whether some refinement
of the good cause standard is in order; and whether there should be
some limitation on the public’s right of access after the settlement of a
case. Those questions are posed by way of example and not limitation.
III
The judgment of the Appellate Division is affirmed. The issues to which we
have 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.
SUPREME COURT OF NEW JERSEY
NO. A-52 SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court
ESTATE OF ROBERT FRANKL,
etc.,et al.,
Plaintiffs,
v.
GOODYEAR TIRE AND RUBBER
COMPANY,
Defendant-Respondent,
and
CONSUMERS FOR AUTO
RELIABILITY AND SAFETY,
Intervenor-Appellant.
DECIDED July 28, 2004
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
The trial court ordered full or partial unsealing of 14 of the
contested documents, finding that: Hammock was inapplicable because the protective order was invalid;
the documents contained important public safety information and the interests of public safety
predominated over Goodyear’s need for confidentiality; and Goodyear failed to meet the good
cause standard because it had not shown the documents contained trade secrets. The
court held that a number of contested documents should remain sealed because they
contained “self-critical” analysis materials.
Footnote: 2
The New York Times filed a joint brief with the North Jersey Media
Group Inc., the New Jersey Chapter of the Society for Professional Journalists, the
New Jersey Foundation for Open Government, and the New Jersey Media Lawyers Association.
Footnote: 3
The New Jersey Press Association filed a joint brief with the Reporter’s
Committee for Freedom of the Press.
Footnote: 4
In November 2000, The National Highway Traffic Safety Administration (NHTSA) initiated an
investigation of the tire tread separation defect at issue here. The NHTSA closed
its investigation in March 2002, after Goodyear put in place a recall program
to replace, free of charge, pre-1996 LRE tires with a newer version on
ambulances and large vans.
Footnote: 5
Presumably, and absent a protective order, parties may voluntarily disclose discovery documents. Jepson
Inc. v. Makita Elec. Works, Ltd.,
30 F.3d 854, 858 (7th Cir. 1994);
see also Seattle Times v. Reinhart,
467 U.S. 20, 31-36 (1984); Public Citizen
v. Liggett Group, Inc.,
858 F.2d 775, 780 (1st Cir. 1988), cert. denied,
488 U.S. 1030,
109 S.Ct. 838,
102 L.Ed.2d 970 (1989); Oklahoma Hosp. Ass’n
v. Oklahoma Publishing Co.,
748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied,
473 U.S. 905,
105 S.Ct. 3528,
87 L.Ed.2d 652 (1985).
Footnote: 6
See Miller, supra, at 442-45.
Footnote: 7
Only two states arguably provide for public access of unfiled discovery, and
only upon a showing that public health and safety or the administration of
public office are implicated. Fla. Stat. Ann. § 69.081; Tex. R. Civ. P. 76a
(2)(c).
Footnote: 8
A few federal cases finding a statutory right of access to unfiled discovery
relied on Fed. R. Civ. P. 26(c) and pre-2
000 Fed. R. Civ. P. 5(d). See e.g., Public Citizen, supra.