United States District Court, Eastern District of Pennsylvania
December 7, 2000
RAYMOND E. DOMBROWSKI, JR.
BELL ATLANTIC CORPORATION, ET AL.
The opinion of the court was delivered by: Bartle, U.S. District Judge.
Plaintiff, a former in-house attorney with Bell Atlantic Corporation
("Bell Atlantic"), has sued his former employer and several compensation
and stock plans which it has established. In his lengthy complaint,
plaintiff claims: (1) failure to pay ERISA benefits; (2) harassment and
constructive discharge to avoid payment of benefits in violation of
ERISA; (3) breach of contract; and (4) wrongful discharge in violation of
public policy. He seeks injunctive relief and payment on his federal
claims as well as compensatory and punitive damages under state law.
Plaintiff accompanied the filing of the complaint with a motion for
leave to file it under seal on the ground that it contained information
protected by the attorney-client privilege.*fn1 Plaintiff asserts that
four of its paragraphs should be withheld from public access. The
defendants argue that the entire complaint should remain shielded.
As a general rule judicial records such as pleadings and other papers
filed with the court in civil actions are public documents available for
inspection and review by any interested person. The court may seal such
documents only under narrow circumstances where "[g]ood cause is
established on a showing that disclosure will work a clearly defined and
serious injury to the party seeking closure." Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (quoting Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). Any injury must be
shown with specificity. See id. The Court of Appeals has recognized that
we must balance a party's interest in privacy against the public's right
to know. Privacy prevails where it would "prevent the infliction of
unnecessary or serious pain on parties who the court reasonably finds are
entitled to such protection." Id. at 787. Embarrassment to a person may
be sufficient but only if "particularly serious." Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986); see also Pansy, 23 F.3d
at 787. The court has also recognized that trade secrets may deserve
protection from disclosure if irreparable harm would result. See
Publicker, 733 F.2d at 1071. Information important to public health and
safety will weigh against confidentiality. See Pansy, 23 F.3d at 787.
Finally, a court must consider whether the parties are public officials
or entities or whether they are private litigants with the former, of
course, less deserving of confidentiality. See id. at 788. In sum, the
Third Circuit clearly favors openness absent good cause
to the contrary. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484-85
(3d Cir. 1995); Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir.
In this case, the parties assert that the complaint includes privileged
information which should remain under seal. The court is not bound by the
parties' evaluation, but must review the information in question and
balance the competing rights of public access against the parties'
As formulated a number of years ago by Judge Wyzanski in his oft quoted
opinion in United States v. United Shoe Mach. Corp., 89 F. Supp. 357,
358-59 (D.Mass. 1950), the attorney-client privilege applies:
only if (1) the asserted holder of the privilege is or
sought to become a client; (2) the person to whom the
communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with
this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney
was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal
services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing
a crime or tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client.
Like the information a client relays to an attorney in order to obtain
advice, the advice given by that attorney in return is also privileged.
See Upjohn Co. v. United States, 449 U.S. 383
, 390, 101 S.Ct. 677, 66
L.Ed.2d 584 (1981).
It is important to emphasize that the attorney-client privilege does
not protect a party from disclosing underlying facts. Rather, it simply
protects communications between a party and the party's attorney. See id.
at 395, 101 S.Ct. 677. The burden of proof is always on the party
asserting the privilege. See Glenmede, 56 F.3d at 483; Miller, 16 F.3d at
The attorney-client privilege, which is at issue here, "is intended to
encourage full and frank communication between attorneys and their
clients and thereby promote broader public interests in the observance of
law and administration of justice." Swidler & Berlin v. United States,
524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).*fn2 Sound
legal advice and advocacy depend upon the client's fully informing his or
her counsel of all the relevant facts and circumstances. This goal can
only be achieved by upholding the privilege. See Upjohn, 449 U.S. at
389, 101 S.Ct. 677.
We now turn to the complaint itself to decide whether it contains any
communications subjected to the attorney-client privilege.
Preliminarily, we note that the complaint contains 23 pages, with 93
paragraphs. It reads as if the drafter thought fact pleading governed
rather than the notice pleading standard of Rule 8 of the Federal Rules
of Civil Procedure which simply requires "a short and plain statement" of
jurisdiction and of the claims and a demand for judgment.
Without disclosing the relevant allegations in the complaint in great
detail, plaintiff has asserted that he was involved in a due dingence
investigation of a company with which Bell Atlantic was intending to
merge. During the investigation, he found what he believed to be
suspect, if not improper, practices at the other company and suspect, if
not improper, activities by two employees of that company. The merger was
ultimately consummated, and those two employees came to work for Bell
Atlantic. Plaintiff continued to interact with them, but a severe
estrangement, to say the least, existed since the time the due diligence
exercise had taken place.
Defendants argue that plaintiff's discoveries during due diligence and
all his communications with those employees then and thereafter are
privileged. We disagree. What plaintiff found during due diligence cannot
fall within the ambit of the attorney-client privilege. The privilege
protects only communications between a lawyer and client. It does not
insulate underlying facts from the light of day. See Upjohn, 449 U.S. at
395, 101 S.Ct. 677. Moreover, the bulk of the communications revealed in
the complaint between plaintiff and these two employees are clearly not
communications protected by the privilege. The communications between
plaintiff and the two employees during the due diligence exercise when the
two employees were associated with the other company were not between
lawyer and client. As to discussions between plaintiff and the two
employees after they joined Bell Atlantic, the privilege is inapplicable
to the extent the discussions were not to obtain or facilitate legal
advice or services. According to the complaint, the two employees
consistently told the plaintiff to stay out of their way and not to give
them advice or provide them with legal services.
Having reviewed the 93 paragraph complaint, we find that most of the
allegations contain no attorney-client communications. We will retain
under seal only the last ten words of paragraph 23, the first two
sentences and the penultimate sentence of paragraph 28, and paragraph
29. We believe that these limited segments set forth attorney-client
communications and that the defendants have met the good cause test under
Pansy. The extremely important public and private purposes served by
preserving the confidentiality of such communications would be undermined
if one party could unilaterally trumpet such information in a pleading
available for public inspection. At this stage of the proceedings,
failure to maintain such information under seal will cause "a clearly
defined and serious injury" not only to the parties seeking closure but
also to the public interest which the attorney-client privilege is
designed to serve. See Pansy, 23 F.3d at 786 (quoting Publicker, 733 F.2d
We recognize that under the Pennsylvania Rules of Professional
Conduct, which have been adopted by this court, exceptions to the
attorney-client privilege exist, allowing a lawyer under certain
circumstances to reveal information obtained from a client when there is
litigation between the two.*fn3 See Pa. R. of Prof. Conduct 1.6; E.D.
Pa. R. Civ. P. 8.3.6 IV.B. Suffice it to say that as this case unfolds we
will continue to be mindful of our obligations under Pansy and these
While the defendants and some of their employees may well be
embarrassed by the unsealing of the non-privileged paragraphs of the
complaint, we do not believe that it is sufficient here to meet the good
cause requirement in Pansy. Indeed, pleadings are filed every day with
allegations that may embarrass the opposing party. If mere embarrassment
were enough, countless pleadings as well as other judicial records would
be kept from public view. We will not travel down this road.
Accordingly, we will unseal the complaint except for the last ten words
of paragraph 23, the first two sentences and the penultimate sentence of
paragraph 28, and paragraph 29.*fn4 The plaintiff shall file a redacted
complaint, noting that the last ten words of paragraph 23, the first two
sentences and the penultimate sentence of paragraph 28, and paragraph 29
under seal pursuant to court Order. We will stay this Order for eleven
AND NOW, this 7th day of December, 2000, for the reasons set forth in
the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of plaintiff for leave to file complaint under seal is
GRANTED in part and DENIED in part;
(2) plaintiff shall promptly file a redacted complaint, with the
notation that the last ten words of paragraph 23, the first two sentences
and the penultimate sentence of paragraph 28, and paragraph 29 are filed
under seal pursuant to court Order; and
(3) this Order is STAYED for eleven days.