(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).
MARVIN LOUIS HAMMOCK, JR., ET AL. V. HOFFMAN-LaROCHE, INC., ET AL. (A-124-94)
Argued March 14, 1995 -- Decided August 2, 1995
COLEMAN, J., writing for a unanimous Court.
Thelma Hammock and her husband, Marvin, filed a medical malpractice claim against Thelma's
dermatologist, and a products-liability claim against Hoffman-LaRoche (Roche). Roche manufactured and
distributed the drug Accutane after it received FDA approval in May 1982. Thelma's dermatologist
prescribed Accutane in May 1986 for the treatment of her severe acne. While using the drug, Thelma
became pregnant and gave birth to a child with severe physical deformities and brain damage. The
Hammocks alleged that Roche inadequately warned prescribing physicians of the dangers of Accutane during
pregnancy.
The Hammocks sought discovery of more than 1,000 documents from Roche. Roche resisted,
claiming that many of the documents sought contained trade secrets and confidential and proprietary
information, or were protected from disclosure by the physician-patient privilege. Roche sought a protective
order pursuant to Rule 4:10-3, which provides that for good cause shown, a court may, when justice requires
to protect a party from whom discovery is sought, order that a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed only in a designated way.
On May 18, 1989, the trial court concluded that "good cause" existed to justify the entry of a
protective order sealing the documents because they contained trade secrets, confidential and proprietary
information or material protected by the physician-patient privilege of persons not parties to the action. The
protective order provided that the Hammocks and their attorneys, experts or consultants be prohibited from
disseminating any copies of the documents to others not directly associated with the Hammocks or upon
written order of the court, and that all information in whatever form discovered from the examination of the
documents be used only in connection with this cause of action. Upon objection, Roche had the burden of
proving that each objected to document was either a trade secret or confidential or proprietary information.
One month after entry of the May 18 order, Roche was directed to make available to the Hammocks'
counsel certain transcripts from other lawsuits filed against Roche. The protective order was amended to
prohibit the Hammocks' attorney from conferring with attorneys in other jurisdictions with respect to
Accutane litigation and from disseminating any information contained in this litigation.
The Hammocks' attorney and Roche used many of the sealed documents in connection with various
motions and briefs filed with the trial court. Roche also filed two motions for summary judgment, in which
counsel for the parties utilized sealed documents in support of, and in opposition to, those motions. One
summary judgment motion was argued in open court.
Two non-parties moved to intervene and unseal the documents or otherwise modify the protective
order as amended. One of the moving parties was Public Citizen Group, Inc. (Public Citizen), a non-profit
organization that advocates safe, affordable and effective drug use. Public Citizen generally sought to secure
public access to the pleadings, deposition transcripts, documents, and exhibits filed with the court and to
unseal the records so it could obtain evidence useful to its petition to the FDA for a more stringent
regulation of Accutane. Generally, the records Public Citizen sought to review and copy were presented to
the trial court during judicial proceedings conducted on Roche's motions for summary judgment. After the
products-liability action was dismissed on summary judgment, the trial court granted Public Citizen's
application to intervene but denied its application to unseal the documents.
On appeal, the Appellate Division held that Public Citizen has no absolute First Amendment or
common-law right of access to the documents. Nonetheless, the Appellate Division remanded the matter,
directing: 1) Roche's attorneys to designate by categories the type of documents sought to be protected and
the general basis for the protection; and 2) the trial court to make factual determinations about whether
Roche had made a sufficient factual showing to keep the alleged proprietary and confidential information
under seal.
On remand, the trial judge created five categories to determine whether the protective order covered
the documents. The court unsealed five documents but did not articulate any clear standard for determining
whether to unseal documents once the litigation had been concluded. The Appellate Division affirmed.
The Supreme Court granted Public Citizen's petition for certification to establish a standard for
deciding when the public should have access to judicial records in the form of documents, transcripts, and
legal memoranda with attachments filed with a trial court in support of, or in opposition to, motions in civil
litigation.
HELD: There is a presumption of public access to documents and materials filed with a court in connection
with civil litigation. The Court establishes a reasonableness standard to guide courts in the
determination of whether that presumption of access may be rebutted.
1. Under the common law, there is a presumption of public access to documents and materials filed with a
court in connection with civil litigation. That rights exists as to the litigants and the public. Under the First
Amendment, however, the Court does not decide whether the right extends beyond the litigants. The
common-law right-of-access is not absolute; it requires a flexible balancing process, focusing on the interests
of the parties. Under both the common law and the First Amendment, a court may craft a protective order.
The strong common-law presumption of access must be balanced against the factors militating against access.
The person who seeks to overcome the presumption of access has the burden of demonstrating that the
interest in secrecy outweighs the presumption. Documents containing trade secrets, confidential business
information and privileged information may be protected from disclosure. Therefore, under the Court's
supervisory power and pursuant to Rule 1:1-2, the Court establishes a reasonableness standard to determine
whether the presumption of access may be rebutted. (pp. 11-24)
2. There is a profound public interest when matters of health, safety and consumer fraud are involved.
Thus, as a matter of public policy, there must be careful scrutiny prior to sealing records and documents filed
with the court in a high public-interest case. The court adopts a broad standing rule affording the public
access to court files when health, safety and consumer fraud are involved; standing should not be limited to
the parties or their attorneys. The standard the Court establishes today recognizes that there must continue
to be confidentiality of materials submitted in the discovery process. Moreover, there is no change in the
existing public policy of maintaining confidentiality in certain matters, either private or confidential, in which
the government's interests outweighs the presumption of access. (pp. 24-30)
3. The following standard should guide trial courts in deciding applications made pursuant to Rule 1:2-1 and 4:10-3. This standard should be followed whether access is sought by a party or a non-party for the purpose of making available to the public sealed documents and materials filed with the court in connection with nondiscovery applications. First, there is no presumptive right-of-public-access to discovery motions filed with the trial court; however, summary judgment motions are presumptively assertible. Second, the presumption of public access attaches to pretrial-nondiscovery motions, whether preliminary or dispositive, and the materials, briefs and documents filed with courts in support of, or in opposition to such motions. Third, the presumption attaches to all materials, documents, legal memoranda or other papers "filed" with the court that are relevant to any material issues involved in the underlying litigation regardless of whether the trial court relied on them in reaching its decision on the merits. Fourth, the presumption of access applies regardless of whether the non-discovery motion that has caused the documents to be filed with the
court is granted or denied. Fifth, a flexible balancing process adaptable to different circumstances must be
conducted to determine whether the need for secrecy substantially outweighs the presumption of access.
Sixth, the person who seeks to overcome the strong presumption of access must establish by a preponderance
of the evidence that the interest in secrecy outweighs the presumption. Seventh, the person with the burden
of proof must demonstrate evidence to show why public access to the document should be denied currently
rather than rely on the fact that a protective order was entered earlier. Eighth, the trial court, or special
master, must examine each document individually and make factual findings with regard to why the
presumption of public access has been overcome. The need for secrecy should extend no further than
necessary to protect the confidentiality and documents should be redacted when possible. (pp. 30-34)
4. Application of this standard leads the Court to reverse in this case. The record on remand is insufficient
to permit the Court to decide whether good cause existed, in accordance with the standard adopted, to deny
public access to the documents. (pp. 34-39)
Judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Law Division
for redetermination consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
124 September Term 1994
MARVIN LOUIS HAMMOCK, JR.,
and LEON WILSON, infants, by
their Guardian Ad Litem,
THELMA HAMMOCK, and MARVIN
LOUIS HAMMOCK, SR., Individually,
Plaintiffs,
v.
HOFFMANN-LaROCHE, INC.,
Defendant-Respondent,
and
JOHN DOES 1 through 20, MARY
ROES 1 through 20, RICHARD D.
FOX, M.D., DERMATOLOGY-DERMATOLOGIC
SURGERY, P.A., A Professional
Corporation,
Defendants.
Argued March 14, 1995 -- Decided August 2, 1995
On certification to the Superior Court,
Appellate Division.
Michael E. Tankersley, a member of the
District of Columbia bar, argued the cause
for appellant, Public Citizen, Inc. (Medvin &
Elberg, attorneys; Mr. Tankersley and Philip
S. Elberg, on the briefs).
Jeffrey A. Peck argued the cause for
respondent (Shanley & Fisher, attorneys; Mr.
Peck and William R. Brown, Sr., on the
brief).
The opinion of the Court was delivered by
COLEMAN, J.
This case requires us to decide whether the public has a
right of access to judicial records and materials filed with the
court in civil litigation. Public Citizen Group, Inc. (Public
Citizen), a non-profit organization that advocates safe,
affordable and effective drugs, sought access to documents filed
with the trial court under a protective order in a pharmaceutical
manufacturer products-liability case. After the products-liability case was dismissed on summary judgment, the trial court
denied Public Citizen access to the documents and materials filed
with the court with respect to predisposition-nondiscovery
motions. The Appellate Division remanded the matter to the trial
court for redetermination.
269 N.J. Super. 289 (1993). On
remand, the trial court did not unseal the records and the
Appellate Division affirmed in an unpublished opinion.
We granted certification,
139 N.J. 288 (1994), to establish
a standard for deciding when the public should have access to
judicial records in the form of documents, transcripts and legal
memoranda with attachments filed with a trial court in support
of, or in opposition to, motions in civil litigation. We reverse
and remand for redetermination in accordance with the standard
established today.
This case has a protracted procedural history spanning seven years. It began when Thelma Hammock filed a medical malpractice claim against her attending physician, Dr. Jose Fishman, a
dermatologist, and a products-liability claim against Hoffman-LaRoche (Roche). Roche manufactured and distributed the drug
Accutane after it received Food and Drug Administration (FDA)
approval in May 1982. Plaintiff's attending physician prescribed
Accutane in May 1986 for the treatment of her severe recalcitrant
cystic acne. During her use of the drug, plaintiff became
pregnant, and gave birth to a child with severe physical
deformities and brain damage.
Plaintiff's theory of products liability was alleged
inadequacy of warning to prescribing physicians such as Dr.
Fishman. The warning was allegedly inadequate because it did not
advise prescribing physicians to obtain blood-pregnancy tests.
The medical-malpractice claim against Dr. Fishman was based on
negligence in prescribing Accutane during plaintiff's pregnancy.
Plaintiff sought discovery of more than 1,000 documents from
Roche pursuant to Rule 4:10-1 and -2. Roche resisted, contending
that many of the documents sought contained trade secrets and
confidential and proprietary information, or were protected from
disclosure by the physician-patient privilege.
Roche filed a motion for a protective order pursuant to Rule
4:10-3. It submitted affidavits of Doctor George S. Vadnai and
Donald Hollander who explained that some of the information
sought was essential to the filing with the FDA of an
Investigational New Drug (IND) or New Drug Application (NDA) for
Accutane. INDs and NDAs are the documents required by the FDA
for a pharmaceutical company to obtain approval to market a
prescription drug. FDA regulations provide that data contained
in an IND or NDA file is not subject to public disclosure. See
21 C.F.R. § 20.111(d).
On May 18, 1989, the trial court concluded that "good cause"
existed under Rule 4:10-3(g) justifying the entry of a protective
order sealing the documents. The finding of good cause was based
on the court's conclusion that many of the documents "may contain
trade secrets, confidential and proprietary information and
material protected by the physician-patient privilege of persons
who are not parties to this action." The protective order
controlled the dissemination of Roche documents by providing:
(2) Plaintiffs, their attorneys, or any
experts or consultants retained by them, are
prohibited from disseminating, in any
fashion, manner or method, copies of the
documents thereof, to any other person, firm
or organization, not directly associated with
plaintiffs or upon further written order of
this court; * * * (5) All information in
whatever form, discovered from examination of
said documents shall be used only in
connection with this action; * * * (11)
If a party objects to the designation by
Roche of any documents as containing trade
secrets, proprietary or confidential
information, the party shall (within 60 days
of receipt of such documents) identify each
document it wishes to remove from the
provisions of this Order . . . Roche shall
have the burden of proving that such
documents contain trade secrets or other
confidential and proprietary information.
Within a month after entry of the May 18 order, the trial court directed Roche to make available to plaintiff's counsel certain transcripts from other lawsuits filed against Roche. The protective order was amended to prohibit plaintiff's counsel from
conferring with attorneys in other jurisdictions with respect to
Accutane litigation and from disseminating any information
obtained in the present litigation.
It is undisputed that counsel for plaintiff and Roche used
many of the documents in connection with various motions and
briefs filed with the trial court. It was always understood by
counsel for the parties that documents attached to motions or
references to them in the briefs were subject to the May 18,
1989, protective order as amended.
Roche filed two motions for summary judgment, and counsel for the parties utilized documents placed under seal in support of, and in opposition to, those motions. The trial court denied one motion on June 29, 1990, and thereafter also denied a motion for reconsideration. On February 29, 1991, a different judge granted partial summary judgment to Roche.
After full discovery, Roche again moved for summary judgment seeking dismissal of the products-liability claim on October 25, 1991. By that time, a different trial judge was presiding over the matter. To support its renewed application, Roche relied on testimony of plaintiff's expert and Dr. Fishman, as well as the prescribing information available for Accutane in May 1986. In opposition to the motion, plaintiff submitted hundreds of pages of Roche's documents and deposition transcripts, some of which were referred to in the briefs. Those voluminous submissions included transcripts, confidential marketing information,
proprietary business materials and privileged medical information
about other birth defect cases in which Accutane had been
ingested during pregnancy.
The trial court conducted oral argument on May 14, 1992.
Roche convinced the trial court that in May 1986 its warning
informed Dr. Fishman, and other physicians prescribing Accutane,
of the drug's potential to cause birth defects through Roche's
"Black Box" warning specifically approved by the FDA. The trial
court granted summary judgment dismissing the products-liability
case based on the learned-intermediary rule codified by N.J.S.A.
2A:58C-4. See Niemiera by Niemiera v. Schneider,
114 N.J. 550,
559 (1989); Strumph v. Schering Corp.,
256 N.J. Super. 309, 315
(App. Div. 1992), rev'd on dissent,
133 N.J. 33 (1993).
Plaintiff then settled with Dr. Fishman. The Appellate Division
affirmed the summary judgment, and the Court denied
certification.
134 N.J. 561 (1993).
Just prior to dismissal of the products liability case, two motions were made by nonparties to intervene, pursuant to Rule 4:33-2, and unseal the documents or otherwise modify the protective order as amended. The first of those motions was made on April 7, 1992, by counsel for plaintiffs in two other Accutane lawsuits to obtain pleadings, deposition transcripts and any attached exhibits and documents. The second motion was made on April 16, 1992, by Public Citizen. It generally sought to secure public access to the pleadings, deposition transcripts, documents
and exhibits filed with the court and to unseal the records so it
could obtain evidence that might shed light on the hazards posed
by Accutane. Public Citizen had petitioned the FDA for more
stringent regulation of Accutane, and it wanted this information
to support that petition.
In June 1992 the trial court determined that counsel for
plaintiffs in the two Accutane lawsuits could have access to the
Roche documents as well as deposition transcripts. The court
required counsel to be bound by the protective order as amended
on July 17, 1992. On the same date the trial court also granted
Public Citizen's application to intervene but denied its
application to unseal the documents.
The trial court directed Roche to review the documents and
specifically inform the court which documents Roche believed
contained proprietary, trade secret or privileged information.
In response, Roche made an application to continue the protective
order with respect to approximately 221 documents it identified
as falling into either of three protected general categories. At
the conclusion of a hearing conducted on November 2, 1992, the
trial court found that forty of the 221 documents should be
unsealed and the remaining 181 documents should remain under
seal.
In Public Citizen's appeal, the Appellate Division held that
Public Citizen has no absolute First Amendment or common-law
right of access to the documents. 269 N.J. Super. at 297. The
Appellate Division relied on Matter of Krynicki,
983 F.2d 74, 78
(7th Cir. 1992), in holding that "confidentiality orders entered
by other [judges] had to be followed," and that documents under
seal submitted to the court in connection with motions that "were
irrelevant to the merits of the lawsuit" can be kept secret.
Hammock, supra, 269 N.J. Super. at 298. Because the trial court
made no factual findings, either when it entered the protective
order on May 18, 1989, or on November 2, 1992, when Roche sought
to keep the documents under seal, the Appellate Division remanded
the matter for two purposes. First, the remand directed Roche's
attorney to designate by categories "the type of documents sought
to be protected and the general basis for the protection." Id.
at 299. Second, it required the trial court to make factual
determinations about whether Roche had made "a sufficient factual
showing to keep its alleged proprietary and confidential
information" under seal. Id. at 300.
The trial court conducted a hearing on remand on June 16,
1994. The judge stated that he had for a second time made an in
camera inspection of each document. During that hearing, counsel
for Public Citizen conceded that "in the event that documents
were placed into the record solely for the purpose of evading the
Protective Order, those materials would not be subject to the
presumption of public access." He disagreed, however, that it
was bad faith for plaintiff's counsel to submit, in opposition to
Roche's first summary judgment motion, documents that had been
used successfully to defeat that motion. He argued that the
records and documents were used in briefs submitted to a
different judge, to create a factual issue with respect to the
adequacy of the warning.
The second judge rejected Public Citizen's argument,
explaining that when he considered a document to have been
submitted in bad faith, it was because of plaintiff's counsel's
repeated submissions of the documents in support of an invalid
legal theory. The judge perceived the legal theory to be invalid
because Roche had informed physicians prescribing Accutane that
it could cause defects in a fetus. Plaintiff, nonetheless,
insisted that Roche had a duty to inform prescribing physicians
of the exact methodology they should use to rule out pregnancy.
The judge found that the documents submitted in bad faith were
not probative of any relevant issue in the case.
The judge created the following five categories to determine
whether the protective order covered the documents:
Category No. 1: Documents Containing Trade Secrets,
Results of Proprietary Research,
and/or Confidential Marketing
Documents
Category No. 2: Proprietary Documents Which Will
Adversely Affect Public Safety If
They Are Publicly Disseminated
Category No. 3: Transcripts Subject to
Confidentiality Orders of Other
Courts
Category No. 4: Documents Containing Privileged
Medical Information Relating to
Third Parties
Category No. 5: Irrelevant Material Filed by
Plaintiffs in "Bad Faith"
The trial court unsealed five documents and ordered that 175
documents remain under seal. It appears that the trial court
placed eighty-three under Category 1, one under Category 2,
twenty-four under Category 3, thirteen under Category 4 and
fifty-four under Category 5. The trial court did not articulate
any clear standard for determining whether to unseal documents
once the litigation had been concluded.
Following the remand, the Appellate Division affirmed in an
unpublished opinion in which it stated that it had "carefully
reviewed the subject documents." However, no statement of facts
was provided with respect to what was observed from reviewing the
documents.
Public Citizen sought certification to establish a standard
for deciding whether "court records, including transcripts of
open judicial proceedings, legal memoranda and evidence presented
in connection with dispositive motions, may be placed under seal
without any specific showing of harm to justify the denial of
public access."
A determination of what standard should guide our courts when deciding whether to unseal judicial records filed with the court should begin with our court rules. We emphasize that the records that Public Citizen seeks to review and copy were presented to the trial court during judicial proceedings conducted on Roche's motions for summary judgment.
Two court rules were initially involved in sealing the
records. The first is Rule 1:2-1 which provides "[a]ll trials,
hearings on motions and other applications . . . shall be
conducted in open court unless otherwise provided by rule or
statute. If a proceeding is required to be conducted in open
court, no record of any portion thereof shall be sealed by order
of the court except for good cause shown." Although the
documents presented to the trial court were covered by the
protective order, the arguments on the summary judgment motions
were conducted in open court. The records of the hearings on the
motions were not sealed. Thus, sealed records were used in
unsealed hearings on motions.
Rule 1:2-1 was amended effective September 1992 to require
"good cause" for sealing any portion of a proceeding conducted in
open court. The comment to this Rule's recent change is
informative. It states:
As explained by the Civil Practice
Committee's 1992 Report,
130 N.J.L.J. Index
Page 529,
1 N.J. Lawyer 145 (1992), this
amendment was intended to codify present
practice and to reject the proposal that
sealing be permitted only in extraordinary
circumstances. In sum, the Committee
recognized the tension between litigants'
privacy and strategy rights and an asserted
right to know, and the Committee opted, in
general terms, for preservation of privacy.
See Miller, Confidentiality, Protective
Orders and Public Access to the Courts,
105
Harv. L. Rev. 427 (1991). See also Zuckerman
v. Piper Pools,
256 N.J. Super. 622 (App.
Div.), certif. den.,
130 N.J. 394 (1992),
reversing an order sealing a recorded
infant's settlement on the ground that the
prevailing presumption of access had not been
overcome. The resulting dichotomy is that a
competent adult, whose settlement need not be
judicially approved, is free to negotiate a
"private" settlement whereas in the case of a
minor or incompetent, the requirement of
judicial approval of the settlement
forecloses, in the ordinary case, the
plaintiff's privacy option.
[Pressler, Current N.J. Court Rules, comment
1 on R. 1:2-1 (1994).]
The second court rule involved is Rule 4:10-3 which
controls the issuance of protective orders. It 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.
[R. 4:10-3.]
For purposes of this case, Rule 4:10-3 can be paraphrased to
read that for "good cause shown, the court may make an order
which justice requires to protect a party" from whom discovery is
sought, by ordering that "a trade secret or other confidential
research, development, or commercial information not be disclosed
or be disclosed only in a designated way." Ibid. Roche is a
party and the entity from which discovery was sought within the
meaning of the rule.
There is nothing in the rule that defines "good cause," or
an "order which justice requires to protect a party."
Recognizing that because all parties to litigation have a duty to
engage in proper discovery, see R. 4:10-1 and -2, issuance of
protective orders should be used sparingly.
Because no rule of civil practice controls unsealing of
records, we rely on Rule 1:1-2 and the Court's supervisory power
to establish an appropriate standard.
The purpose and scope of our discovery rules, Rule 4:10-1 and Rule 4:10-2, are substantially the same as Federal Rule of
Civil Procedure 26. Similarly, Rule 4:10-3 follows the text of
Federal Rule of Civil Procedure 26(c). Because of the dearth of
decisional law in this State interpreting the right of public
access to documents, information and materials submitted to the
court in civil matters, we will also examine applicable federal
decisions and rules.
We begin by acknowledging that in New Jersey, the right to
attend criminal and civil judicial proceedings has been
recognized as early as the 17th century in a colonial-era
document known as the 1677 Concessions and Agreements of West New
Jersey, referred to in Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 567,
100 S. Ct. 2814, 2822,
65 L. Ed.2d 973, 983-84
(1980); Gannett Co. v. DePasquale,
443 U.S. 368, 386 n.15,
99 S.
Ct. 2898, 2908 n.15,
61 L. Ed.2d 608, 625 n.15 (1979) and
Publicker Industries, Inc. v. Cohen,
733 F.2d 1059, 1069 (3d Cir.
1984).
When Justice Oliver Wendell Holmes served on the Supreme
Judicial Court of Massachusetts, he said that public access to
civil judicial proceedings was "of vast importance" because of
"the security which publicity gives for the proper administration
of justice." Cowley v. Pulsifer,
137 Mass. 392, 394 (1884).
This Court has acknowledged recently that the First Amendment,
the history of this State and our rules of court all require that
civil trials and judicial proceedings be open to the public
unless an important state interest is at stake. New Jersey Div.
of Youth and Family Servs. v. J.B.,
120 N.J. 112, 127 (1990).
Public Citizen claims both a common-law and First Amendment right-of-access to the records. It asserts that a presumption of access exists because the records it seeks were submitted to the Superior Court to assist the court in its decision whether to grant summary judgment dismissing the products-liability claim.
This State has consistently recognized the right of the public to have access to nonjudicial-governmental records. In that context, we recently stated:
A person seeking access to public records may today consider at least three avenues of approach. He may assert his common law right as a citizen to inspect public records; he may resort to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., or, if he is a litigant, he may avail himself of the broad discovery procedures for which our rules of civil practice make ample provision.
[Atlantic City Convention Ctr. Auth. v. South
Jersey Pub. Co., Inc.,
135 N.J. 53, 59 (1994)
(quoting Irval Realty, Inc. v. Board of Pub.
Util. Comm'rs,
61 N.J. 366, 372 (1972)).]
Because Public Citizen was an intervenor, rather than one of the
litigants in the underlying litigation, it relies on only one of
the three theories mentioned in Convention Center.
Leaving aside the difference between the common law and the
Right-to-Know-Law definitions of what constitute a nonjudicial-public record, "[u]nder the common law rule of access to public
documents, a citizen is entitled to inspect documents of a public
nature `. . . provided he shows the requisite interest therein.'"
Nero v. Hyland,
76 N.J. 213, 222 (1978) (quoting Ferry v.
Williams,
41 N.J.L. 332, 334 (Sup. Ct. 1879)). This common-law
right-of-access is not absolute; it requires a flexible balancing
process, focusing on the interests of the parties. Convention
Center, supra, 135 N.J. at 60-61 (citations omitted). As will be
seen later, the common-law right-of-public-access to judicial
records filed in civil litigation is less restrictive than the
common-law right-to-know with respect to nonjudicial-governmental
documents.
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L. Ed.2d 570, 579 (1978), recognized a common-law right-of-access to records and documents filed with courts. The Court stated:
It is uncontested, however, that the right to inspect and copy judicial records is not absolute. Every 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. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal" through the publication of "the painful and sometimes disgusting details of a divorce case." In re Caswell, 18 RI 835, 836, 29 A 259 (1893). Accord, e.g., C. v C., 320 A2d 717, 723, 727 (Del 1974). See also King v King, 25 Wyo 275, 168 P 730 (1917). Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, Park v Detroit Free Press Co, 72 Mich 560, 568, 40 NW 731, 734-735 (1888); see Cowley v Pulsifer, 137 Mass 392, 395 (1884) (per Holmes, J.); Munzer v Blaisdell, 268 App Div 9, 11, 48 NYS2d 355, 356 (1944); see also Sanford v Boston Herald-Traveler Corp., 318 Mass 156, 158, 61 NE2d 5, 6 (1945), or as
sources of business information that might
harm a litigant's competitive standing, see,
e.g., Schmedding v May,
85 Mich 1, 5-6,
48 NW 201, 202 (1891); Fleximir, Inc. v Herman, 40
A2d 799, 800 (NJ Ch 1945).
It is difficult to distill from relatively
few judicial decisions a comprehensive
definition of what is referred to as the
common-law right of access or to identify all
the factors to be weighed in determining
whether access is appropriate. The few cases
that have recognized such a right do agree
that the decision as to access is one best
left to the sound discretion of the trial
court, a discretion to be exercised in light
of the relevant facts and circumstances of
the particular case. In any event, we need
not undertake to delineate precisely the
contours of the common-law right, as we
assume, arguendo, that it applies to the
tapes at issue here.
[Nixon, supra, 435 U.S. at 598-99, 98 S. Ct.
at 1312-13, 55 L. Ed.
2d at 580 (footnotes
omitted).]
Although Richmond Newspapers, supra, 448 U.S. at 580-81, 100 S. Ct. at 2829-30, 65 L. Ed. 2d at 992 (holding the First Amendment does not permit the closure of criminal trials to the public without a showing of an overriding governmental interest), Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed.2d 248 (1982) (holding that the balance between the right of the public to have access to criminal proceedings and the state's interest militating in favor of closure must be made on a case-by-case basis), and Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 503, 104 S. Ct. 819, 820, 78 L. Ed.2d 629, 634 (1984)(extending the guarantees in criminal trials to include pretrial proceedings), did not involve civil judicial
proceedings, they have been interpreted by some federal courts
"to imply a right of public access to civil-court proceedings and
to items in the record of such proceedings." Division of Youth
and Family Services, supra, 120 N.J. at 122. See also State v.
Williams,
93 N.J. 39 (1983)(opening pretrial criminal proceedings
to the public and the press).
Since Nixon was decided in 1978, a substantial number of
federal courts have recognized a pervasive common-law right to
inspect and copy documents and materials filed with a trial court
in connection with nondiscovery-pretrial motions. Those courts
recognize that the filing of documents and materials in support
of, or in opposition to, pretrial motions gives rise to a
rebuttable presumption of public access. F.T.C. v. Standard Fin.
Mgmt. Corp.,
830 F.2d 404, 409 (1st Cir. 1987); Bank of Am. Nat'l
Trust & Savs. Ass'n v. Hotel Rittenhouse Assocs.,
800 F.2d 339,
344 (3d. Cir. 1986); Matter of Continental Ill. Sec. Litig.,
732 F.2d 1302, 1308 (7th Cir. 1984); In re Knoxville News-Sentinel
Co., Inc.,
723 F.2d 470, 476 (6th Cir. 1983); Crystal Grower's
Corp. v. Dobbins,
616 F.2d 458, 461 (10th Cir. 1980); In re Agent
Orange,
96 F.R.D. 582, 584 (E.D.N.Y. 1983). Some state courts
have reached the same result. Davenport v. Garcia,
834 S.W.2d 4,
23-24 (Tex. 1992); In re Johnson,
598 N.E.2d 406, 410 (Ill. App.
Ct. 1992).
Nonetheless, some tension exists among the circuits with
respect to whether the presumption of access attaches to all
documents filed with the court, or only those that are used or
considered relevant. In some respects, the decision whether the
court's use of materials provides a basis for access turns on the
nature of the motion under consideration by the court and the
role of the documents in the resolution of the motion. Richard
L. Marcus, Myth and Reality in Protective Order Litigation,
69
Cornell L. Rev. 1, 46-49 (1983).
Recently, the United States Court of Appeals for the Third
Circuit reaffirmed its broadly defined right-of-public-access to
judicial records in Leucadia, Inc. v. Applied Extrusion Tech.
Inc.,
998 F.2d 157, 164 (1993). The Court found a "presumptive
right of public access to pretrial motions of nondiscovery
nature, whether preliminary or dispositive, and the material
filed in connection therewith." Ibid. Under that holding, the
mere filing of the documents or materials with the court causes
the common-law presumption of public access to attach.
The United States Courts of Appeal for the First and Second
Circuits differ, however, from the Third Circuit in their
definitions of "court documents." The Second Circuit has
concluded that the presumption of public access attaches to only
those documents and materials used in the adjudication process.
United States of Am. v. Amodeo,
44 F.3d 141, 145 (1995). The
First Circuit limits "court documents" to those filed with the
court that are relevant to performance of the judicial function.
Anderson v. Cryovac, Inc.,
805 F.2d 1, 12 (1986).
Apart from the common-law presumption of public access to
judicial records, Public Citizen also contends it has a First
Amendment right that attaches to all documents obtained by
parties through discovery in civil litigation. In Seattle Times
Co. v. Rhinehart,
467 U.S. 20,
104 S. Ct. 2199,
81 L. Ed.2d 17,
(1984), the Court addressed the question whether parties to civil
litigation have a First Amendment right to disseminate, in
advance of trial, information gained through the pretrial
discovery process. There, the Aquarian Foundation, a religious
group, and Rhinehart, its spiritual leader, brought a defamation
and invasion of privacy claim against the Seattle Times which had
published a series of derogatory articles about the group and its
leader. Id. at 22-23, 104 S. Ct. at 2202, 81 L. Ed.
2d at 20-21.
When the defendant Seattle Times sought to discover a list of the
Foundation's donors and amounts contributed as well as a list of
members, the religious leader moved for a protective order.
Ibid.
The Court articulated the standard by which to determine
whether a protective order that prevented a party to civil
litigation from disseminating discovery material in advance of
trial violated the First Amendment. The Court held "it is
necessary to consider whether the `practice in question
[furthers] an important or substantial governmental interest
unrelated to the suppression of expression' and whether `the
limitation of First Amendment freedoms [is] no greater than is
necessary or essential to the protection of the particular
governmental interest involved.'" Id. at 32, 104 S. Ct. at 2207,
81 L. Ed.
2d at 26 (quoting Procunier v. Martinez,
416 U.S. 396,
413,
94 S. Ct. 1800, 1811,
40 L. Ed.2d 224, 240 (1974)). Under
this standard, Federal Rule of Civil Procedure 26(c) was found to
further governmental interest because it enabled parties to
litigation to obtain discovery to assist in preparation for trial
or settlement or both. "The prevention of abuse that can attend
the coerced production of information under a State's discovery
rule is sufficient justification for the authorization of
protective orders." Seattle Times, supra, 467 U.S. at 35-36, 104
S. Ct. at 2209, 81 L. Ed.
2d at 28-29. Hence, the protective
order was upheld. Thus, while the parties to civil litigation
have a First Amendment right that attaches to discovery
information, that right is not absolute. The First Amendment
does not require a court to allow "unrestrained" dissemination of
discovery materials.
Public Citizen has argued also that a First Amendment right-of-access to the documents exists because it believes the
constitutional protection against imposing a restraint in the
form of protective orders is more strict than the common law
"good cause" standard codified by Rule 4:10-3 as explicated
today. But Seattle Times did not find a First Amendment right-of-public-access to pretrial discovery documents. The Court
stated that "pretrial depositions and interrogatories are not
public components of a civil trial. . . . [R]estraints placed on
discovered, but yet not admitted, information are not a
restriction on a traditionally public source of information."
Seattle Times, supra, 467 U.S. at 33, 104 S. Ct. at 2207-08, 81
L. Ed.
2d at 27. Whether filing pretrial-discovery documents
with the trial court in connection with pretrial-nondiscovery
motions should be viewed the same as documents placed into
evidence in a trial, has not been answered by the United States
Supreme Court. We decline to reach the First Amendment right-of-public-access issue. The public right-of-access to the documents
that undergirds our decision is based on the common law rather
than the text or structure of either the federal or state
constitution. The common-law right-of-access to the documents
affords Public Citizen an adequate basis, under the standard we
adopt today, for the relief it seeks.
To recapitulate, the principles distilled from the reported
decisions are as follows. There is a presumption of public
access to documents and materials filed with a court in
connection with civil litigation. That right exists under the
common law as to the litigants and the public. Under the First
Amendment, however, we do not decide whether that right extends
beyond the litigants. But the right of access is not absolute.
Under both the common law and the First Amendment, a court may
craft a protective order. "[T]he strong common law presumption
of access must be balanced against the factors militating against
access. The burden is on the person who seeks to overcome the
presumption of access to show that the interest in secrecy
outweighs the presumption." Leucadia, supra, 998 F.
2d at 165
(quoting Bank of America, supra, 800 F.
2d at 344). Documents
containing trade secrets, confidential business information and
privileged information may be protected from disclosure. Nixon,
supra, 435 U.S. at 598, 98 S. Ct. at 1312; 55 L. Ed.
2d at 580;
Leucadia, supra, 998 F.
2d at 166. Therefore, under this Court's
supervisory power and pursuant to Rule 1:1-2, we establish a
reasonableness standard to determine when the presumption of
access may be rebutted.
The standard we adopt has been influenced in part by what other jurisdictions have done. The national trend is away from sealing documents and materials filed with a court. That trend is quite evident in recent decisions in the First, Second and Third Circuits. Moreover, many state courts and legislatures have upheld a broad common-law presumption of public access to court documents, particularly in areas such as health, safety and consumer fraud. Accord Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392 (1995).
At least two states have enacted statutes that severely curtail the use of sealing orders. Texas has created a rule that bars the sealing of court documents in most instances, especially those that could affect the "public interest." Rule 76a of the Texas Rules of Civil Procedure states that all "court records" are presumptively public and may be sealed only upon a showing that disclosure would damage a specific and serious interest that outweighs the presumption of openness and that no less
restrictive means can adequately protect that interest. Tex. R.
Civ. P. 76a1. "Court record" is defined as "discovery, not filed
of record, concerning matters that have a probable adverse effect
upon the general public health or safety, or the administration
of public office, or the operation of government." Id. at
76a2(c) (exempting cases "originally initiated to preserve bona
fide trade secrets or other intangible property rights"). A
protective order that would limit access to such documents is
allowed only after a public hearing, held with notice, that
allows "any person" to participate. Id. at 76a3; see Lloyd
Doggett & Michael S. Mucchetti, Public Access to Public Courts:
Discouraging Secrecy in the Public Interest,
69 Tex. L. Rev. 643
(1991).
In 1990 the Florida Legislature enacted legislation that
limits the use of confidentiality orders (the same as our
protective orders) where "public hazards" are involved. Fla.
Stat. Ann. § 69.081 (West 1995). "Public hazard" is defined as
"an instrumentality, including but not limited to any device,
instrument, person, procedure, product, or a condition of a
device, instrument, person, procedure or product, that has caused
and is likely to cause injury." Id. at 69.081(2). It severely
limits orders sealing records by forbidding any agreement or
contract that "has the purpose or effect of concealing a public
hazard" or any information about such a hazard. Id. at
69.081(4). Significantly, the act gives any "substantially
affected" person standing to contest any order, agreement or
contract that violates the statute. Id. at 69.081(6).
Other states have enacted more limited statutes. For
example, the Commonwealth of Virginia passed a statute in 1989
that requires that courts allow attorneys to share discovered
information with attorneys involved in similar or related cases,
provided that they secure permission of the court and that the
receiving lawyers agree in writing to be bound by any protective
order. Va. Code Ann. § 8.01-420.01 (Michie 1995). That statute
is similar to the supplemental protective order entered in the
present case.
New York has a court rule that limits the sealing of court
records as part of settlements. The rule urges the court to
"consider the interests of the public as well as the interests of
the parties." N.Y. Ct. R. § 216.1(a). Although the New York
rule does not affect the confidentiality of materials in the
discovery process, it does require a finding of good cause before
a court can grant a request to seal a court file as part of a
settlement. Compare, Rule 1:2-1 and Zukerman v. Piper Tools,
Inc.,
256 N.J. Super. 622 (App. Div.) (unsealing records of a
settlement in a juvenile case), certif. denied,
130 N.J. 394
(1992).
In addition, a variety of court rules affecting disclosure
of court records have been proposed or adopted in other states,
including, but not limited to: Arkansas, California, Colorado,
Kentucky, Mississippi, Missouri, New Hampshire, North Carolina,
Pennsylvania, South Dakota and Washington. See Dorothy J.
Clarke, Court Secrecy and the Food and Drug Administration: A
Regulatory Alternative to Restricting Secrecy Orders in Product
Liability Litigation Involving FDA-Regulated Products, 49 Food &
Drug L.J. 109, 123 n.87-88 (1994); Richard L. Marcus, The
Discovery Confidentiality Controversy, 1
991 U. Ill. L. Rev. 457,
466 n.56 (1991); Arthur R. Miller, Confidentiality, Protective
Orders, and Public Access to the Courts,
105 Harv. L. Rev. 427,
429-30 n.7 (1991).
In New Jersey, legislation that appears to favor nearly
unqualified public access to court documents was introduced by
Assemblypersons Mullen and Cohen in the October 1990 legislative
session. Assembly Bill No. 3794; Assembly Bill No. 4110.
Relying on a broad definition of "public hazard," the proposed
legislation encourages access "to members of the public in
protecting themselves from injury which may result from [such]
public hazard." Ibid. The only exception to the presumption was
"trade secrets." Ibid. The proposed legislation, however, was
not enacted into law.
Finally, we acknowledge that Congress has also become
concerned with protective orders as evidenced by the introduction
of three bills since 1989. Clarke, supra, 49
Food & Drug Cosm. L.J. at 115 n.78. Hearings held on those bills
included testimony from the husband of a woman who died as the
result of a defective heart valve and a consumer injured as a
result of the medication Zomax. Ibid. The most far-reaching of
the bills would have restricted "protective orders in state and
federal courts in products liability actions involving products
distributed in commerce," while another bill would have been
limited to "public hazards." Ibid. The current Congress has not
taken any action in this area.
Independent of the interests of the parties and their attorneys in the litigation that comes before our courts, there is a profound public interest when matters of health, safety and consumer fraud are involved. Prescription drugs involve both health and safety. Therefore, as a matter of public policy there must be careful scrutiny prior to sealing records and documents filed with a court in a high public-interest case. That heightened interest requires that trial courts be more circumspect when deciding whether to seal or unseal records used in litigation.
We are therefore persuaded that we should adopt a broad standing rule affording the public access to court files when health, safety and consumer fraud are involved. Standing should not be limited to the parties or their attorneys. The "applicability and importance of the interests [favoring public access] are not lessened because they are asserted by a private party" that was not a party to the litigation. Leucadia, supra, 998 F. 2d at 167-68. This comports with the spirit, if not the
letter, of our civil practice permissive-intervention procedure,
Rule 4:33-2.
The standard we establish today recognizes that there must
continue to be confidentiality of materials submitted in the
discovery process. The discovery delivered to a plaintiff's
counsel under a protective order is not subject to public access
as long as it remains in the private domain of plaintiff's
counsel. Bank of America, supra, 800 F.
2d at 343. The same is
true with regard to discovery motions. Leucadia, supra, 998 F.
2d
at 165. To hold otherwise would be incongruous with the goals of
our broad discovery process embodied in Rule 4:10-2, intended to
effectuate "the public policies of expeditious handling of cases,
avoiding stale evidence, and providing uniformity, predictability
and security in the conduct of litigation." Zaccardi v. Becker,
88 N.J. 245, 252 (1982); Cunningham v. Rummel,
223 N.J. Super. 15, 18-19 (App. Div. 1988).
Nor do we intend to change our existing public policy of
maintaining confidentiality in matters such as certain aspects of
divorce proceedings, child-custody disputes, juvenile-justice
proceedings, proceedings involving trade secrets or as otherwise
provided by law. Those are either private or confidential
matters in which the government's interest outweighs the
presumption of access.
The standard that we adopt represents a combination of the
standards adopted in the First, Second and Third Circuits. The
standard we adopt should be followed whether access is sought by
a party or a nonparty for the purpose of making available to the
public sealed documents and materials filed with the court in
connection with nondiscovery applications.
The questions whether to seal or unseal documents are addressed to the trial court's discretion. Nixon, supra, 435 U.S. at 599, 98 S. Ct. at 1312, 55 L. Ed. 2d at 580. But that discretion must be structured. Although it is difficult to articulate a comprehensive definition of "good cause" required by Rule 1:2-1 and Rule 4:10-3, the following standard should guide trial courts in deciding applications made pursuant to Rule 1:2-1 and Rule 4:10-3.
First, there is no presumptive right-of-public-access to discovery motions filed with the trial court. Unfettered public access to discovery motions would make the already complicated discovery process more burdensome. Leucadia, supra, 998 F. 2d at 164-65. Discovery motions include, but are not limited to, those to take depositions, to compel production of a witness for deposition, to compel answers to interrogatories or to compel the production of documents. Summary judgment motions, however, cross the threshold requiring a presumption of public access. Trial courts must take care to prevent the privileges recognized by Rule 4:10-2(a) from swallowing the presumption of access.
Second, the presumption of public access attaches to pretrial-nondiscovery motions, whether preliminary or dispositive, and the materials, briefs and documents "filed" with
the court in support of, or in opposition to, such motions. The
motions with supporting materials and documents, once filed with
the court for a decision, become part of the court's file.
Third, the presumption attaches to all materials, documents,
legal memoranda and other papers "filed" with the court that are
relevant to any material issue involved in the underlying
litigation (not simply relevant to a particular motion)
regardless of whether the trial court relied on them in reaching
its decision on the merits. This requirement is consistent with
the scope of discovery under Rule 4:10-2(a). Here, "relevant" is
defined as "having a tendency in reason to prove or disprove any
fact of consequence to the determination of the" matter then
before the court. N.J.R.E. 401.
Fourth, the presumption of access applies regardless of
whether the nondiscovery motion that caused the documents to be
filed with the trial court is granted or denied.
Fifth, a flexible balancing process adaptable to different
circumstances must be conducted to determine whether the need for
secrecy substantially outweighs the presumption of access. The
"requirements of confidentiality are greater in some situations
than others." Convention Center, supra, 135 N.J. at 60 (quoting
McClain v. College Hosp.,
99 N.J. 346, 362 (1985)).
Sixth, the person who seeks to overcome the strong
presumption of access must establish by a preponderance of the
evidence that the interest in secrecy outweighs the presumption.
The need for secrecy must be demonstrated with specificity as to
each document. Broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning, are insufficient.
The same is required to satisfy the "good cause" requirement of
Rule 1:2-1 and Rule 4:10-3 as well as the "justice" requirement
of Rule 4:10-3.
Seventh, the person with the burden of proof must present
evidence to show why public access to the documents should be
denied currently rather than rely on the fact that a protective
order was entered earlier. We reject the Appellate Division's
assertion that the trial court on remand had to follow the
sealing order of May 18, 1989, as amended. When a person
intervenes in a case to inspect and copy documents that have been
sealed, a reassessment of whether documents should remain under
seal must be based on a current justification for privacy.
Eighth, the trial court, or a master appointed for such
purpose pursuant to Rule 4:41-1 to -5, must examine each document
individually and make factual findings with regard to why the
presumption of public access has been overcome. Where secrecy is
sought based on trade secrets, privileges, proprietary
information or the like, the trial court must nonetheless state
with particularity the facts, without disclosing the secrets
sought to be protected, that currently persuade the court to seal
the document or continue it under seal. The need for secrecy
should extend no further than necessary to protect the
confidentiality. Documents should be redacted when possible,
editing out any privileged or confidential subject matter, South
Jersey Pub. Co., Inc. v. New Jersey Expressway Auth.,
124 N.J. 478, 488-89 (1991), so that the protective order will have the
least intrusive effect on the public's right-of-access.
We recognize that the standard we establish today will, in
some instances, place extra demands on our already over-worked
trial courts, but the interest of the public in a case involving
health, safety or consumer fraud is well worth the effort.
The standard we adopt today parallels in many respects the
existing protection afforded the public in nonjudicial
gove