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Mine Safety Appliances Co. v. North River Ins. Co.

United States District Court, W.D. Pennsylvania

March 31, 2014


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For ALAN S. PENKOWER, Special Master: Alan S. Penkower, Los Angeles, CA.

For MINE SAFETY APPLIANCES COMPANY, Plaintiff: George L. Stewart, LEAD ATTORNEY, Brian T. Himmel, Michael H. Sampson, Reed Smith, Pittsburgh, PA; Robert A. Nicholas, Reed Smith LLP, Philadelphia, PA.

For THE NORTH RIVER INSURANCE COMPANY, Defendant: Alan S. Miller, LEAD ATTORNEY, Bridget M. Gillespie, Henry M. Sneath, Picadio, Sneath, Miller & Norton, Pittsburgh, PA; Dennis O. Brown, Gordon & Rees LLP, Hartford, CT; Kenneth G. Katel, PRO HAC VICE, Musick, Peeler & Garrett LLP, Los Angeles, CA; William E. Murray, PRO HAC VICE, Gordon & Rees LLP, Glastonbury, CT.

For THE NORTH RIVER INSURANCE COMPANY, Counter Claimant: Alan S. Miller, LEAD ATTORNEY, Bridget M. Gillespie, Henry M. Sneath, Picadio, Sneath, Miller & Norton, Pittsburgh, PA; Kenneth G. Katel, PRO HAC VICE, Musick, Peeler & Garrett LLP, Los Angeles, CA; William E. Murray, PRO HAC VICE, Gordon & Rees LLP, Glastonbury, CT.

For MINE SAFETY APPLIANCES COMPANY, Counter Defendant: George L. Stewart, LEAD ATTORNEY, Michael H. Sampson, Reed Smith, Pittsburgh, PA.


David Stewart Cercone, United States District Judge.

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Plaintiff commenced this action seeking redress for defendant North River Insurance Company's (" defendant" ) failure to pay proceeds under an umbrella commercial general liability policy for tendered losses arising out of underlying lawsuits advancing personal injury and wrongful death claims against plaintiff. Presently before the court are motions to file documents under seal and to redact privileged and/or confidential information from briefs and/or statements of material fact to be submitted in conjunction with each party's contemplated motion for summary judgment. For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted in part and denied in part.

Plaintiff's averments place the parties' dispute in the following context. " This is [an insurance coverage action] for breach of contract and statutory bad faith arising out of the failure and refusal of [defendant

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North River Insurance Company] (as the issuer of an umbrella liability insurance policy to [plaintiff]) . . . to honor the contractual and legal obligations [owed to plaintiff] in connection with asbestos, silica, and coal workers' pneumoconiosis (" CWP" ) bodily injury (including death resulting therefrom) lawsuits in which [plaintiff] has been named as a defendant." Amended Complaint at ¶ 1. The applicable umbrella liability insurance policy (" the policy" ) allegedly obligates defendant to pay for defense costs and to indemnify plaintiff for amounts paid in settlement and satisfaction of judgment in those bodily injury lawsuits. Id. at ¶ 2. The policy follows the form of a Hartford policy. Id. at ¶ 13. Defense costs assertedly are " in addition to the applicable limit of liability of" the policy. Id. at ¶ 19.

" Since at least the 1980s, [plaintiff] has been sued in numerous bodily injury lawsuits in jurisdictions across the country, the majority of which involve respiratory protection and/or protective clothing products allegedly manufactured and sold by [plaintiff] (the " Underlying Claims" )." Id. at ¶ 20. Plaintiff began to tender numerous settled underlying claims to defendant for indemnification in 2007 and continued to do so in 2008. Id. at ¶ ¶ 24-26. Plaintiff reiterated its demand for payment in February of 2009 and informed defendant that pursuant to J. H. France Refractories Co. v. Allstate Insurance Co., 534 Pa. 29, 626 A.2d 502 (Pa. 1993), it was selecting defendant " to assume responsibility pursuant to the Policy for the indemnity and defense costs associated with other settled Underlying Claims" which encompassed the settlement of lawsuits involving claims by approximately 400 claimants. Id. at ¶ 28. Plaintiff seeks to establish that defendant is in breach for failure to abide by the policy provisions governing indemnity for covered losses for bodily injury claims in the amount of $20,274,186.00 and defense costs of $1,107,375.00. Id. at ¶ ¶ 17-19, 29, 39-43. Although claims exhausting the aggregate policy limit have been tendered to defendant, plaintiff continues to incur defense costs on the underlying claims. Id. at ¶ 32.

In addition, plaintiff has designated defendant " to assume responsibility for the defense costs associated with certain open Underlying Claims and certain closed-but-not-settled Underlying Claims, as well as certain general expenses billed by [plaintiff's] national coordinating counsel and local defense counsel" as well as certain " non-settled Underlying Claims brought by another approximately 400 claimants." Id. at ¶ 30. The defense costs for these claims and the general expenses are in excess of $8,900,000.00. Id. at ¶ 31.

Defendant assertedly has failed and refused to comply with its obligations under the policy. Id. at ¶ 34. It has not paid anything toward the amounts claimed by plaintiff. Id. at ¶ 34. Instead, it has responded with " a carefully and deliberately orchestrated effort to delay and/or avoid payment of proceeds due under the Policy, with the ultimate goal of leveraging [plaintiff] into accepting far less than that to which it is entitled under the Policy (and under other excess liability policies that [defendant] issued to [plaintiff]." Id. at ¶ 35. This effort has included:

(a) raising spurious questions regarding exhaustion of the Hartford policy; (b) raising spurious questions regarding the integrity of certain of [plaintiff's] local counsel, when that same local counsel had been relied on for years by other of [plaintiff's] insurers; (c) positing that the Policy does not obligate it to pay defense costs in addition to limits, when the Policy could not state [defendant's] obligation to do so more clearly; (d) positing, after the fact, that [plaintiff] was required to obtain jury research to substantiate the reasonableness of

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amounts that it paid to settle certain claims, while never suggesting before the fact that such research was important to [defendant] or offering to pay for such research; (e) positing that [plaintiff's] claims experience in certain jurisdictions is irrelevant to the amounts that plaintiff has paid to settle Underlying Claims that have been presented for reimbursement under the Policy; (t) demanding that [plaintiff] provide reams of historical claims data that is wholly irrelevant to the Underlying Claims for which [plaintiff] has demanded payment under the Policy, and refusing to make such payments until [plaintiff] does so (and, even where [plaintiff] does so, still avoiding payment by simply issuing a new set of irrelevant and burdensome information requests); (g) refusing [plaintiff's] invitations to discuss directly with [plaintiff's] local and national counsel the basis for settlement recommendations that [plaintiff's] local counsel has made; (h) withholding from [plaintiff] information that [defendant] has learned in connection with other of its insureds who, like [plaintiff], are facing thousands of toxic tort claims in jurisdictions that are widely regarded as " plaintiff friendly," and otherwise refusing to share its own expertise (on matters such as jury awards and settlement amounts that occur in various jurisdictions throughout the United States) with [plaintiff]; (i) eschewing its fiduciary obligation to work in a collaborative fashion with [plaintiff] to successfully defend and resolve Underlying Claims in favor of an inexplicably hostile and adversarial approach to [plaintiff]; and G) refusing to pay any Underlying Claims until [plaintiff] has provided claims information that goes far beyond what the Policy, the law, and even [plaintiff's] other insurers, require.

Id. at ¶ 36. Defendant's orchestrated effort constitutes both a breach of its duties under the policy and bad faith insurance practices in violation of 42 Pa. C. S. § 8371. Id. at ¶ ¶ 37-38.[1]

Plaintiff further explains in its brief that it seeks to establish that defendant owes coverage for 729 underlying claims. Declaration of William J. Berner (Doc. No. 653-5) at ¶ 5; Plaintiff's Brief in Support of Motion for Leave to File Documents under Seal and to Redact (Doc. No. 653) at 11. Sixty-six of those claims were still pending when plaintiff filed the instant motion. Id. Plaintiff also is defending more than 9,100 additional personal injury cases relating to the same or similar products. Id.

The parties have filed their respective motions to seal in conjunction with their respective contemplated motions for summary judgment. These motions can only be understood to be complex and voluminous:

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approximately one year ago the parties filed 10 separate motions on summary judgment seeking an adjudication on an issue-by-issue basis. At that time they also sought to file under seal separate briefs on each issue and numerous related documents, including briefs, concise statements of material fact and appendices in support. All of these filings were struck from the record for failure to comply with the controlling authority governing the submission of materials under seal in support of relief on the merits and as otherwise moot. See Order of March 12, 2013 (Doc. No. 645) (striking Doc. Nos. 595, 596, 600, 604, 606, 607, 611, 612, 616, 617, 618, 623, 624, 628, 631, 633, 635, and 637 and directing the Clerk to remove the documents from public view; denying 599, 603, 605, 610, 615, 622, and 630 for failure to comply with the controlling authority governing the submission of materials under seal in support of affirmative relief on the merits and otherwise denying as moot; and denying 594 as moot). A concomitant order was issued setting the schedule and procedures for re-filing motions for summary judgment and the submissions in conjunction therewith. See Order of March 12, 2013 (Doc. No. 646). The instant motions were filed pursuant to this scheduling order.

Extensive discovery was conducted pursuant to a protective order permitting the parties to designate documents and information as confidential. See Protective Order of January 4, 2011 (Doc. No. 69). This order authorized any party to make such a designation on the basis that the material being produced by the party or a third party contained " confidential, personal, trade secret, and/or commercial information, as those terms are defined under Federal law, not generally available in the public domain." Id. at ¶ 8. Discovery was coordinated with a companion case captioned as The North River Insurance Company v. Mine Safety Appliances Company, Allstate Insurance Company, et al., GD No. 10-7432, and filed in the Court of Common Pleas of Allegheny County, Pennsylvania. An identical protective order was entered in the state-court action. The parties elected to coordinate discovery and utilize a discovery master in both actions. See Order of February 3, 2011, Appointing the Honorable Alan S. Penkower (Ret.) as Special Master For All Fact and Expert Discovery Disputes. The parties thereafter filed extensive discovery motions, many of which were filed under seal with redacted versions being disclosed to the public.

The parties' March 2013 filings sought to honor and/or maintain the confidential designations previously made by the parties in discovery for the purpose of adjudicating the parties' cross motions for summary judgment. As authority for maintaining portions of the supporting briefs and exhibits under seal the parties merely referenced the designations made under the protective order and/or the designations of third parties pursuant to the identical protective order entered in the companion state-court coverage litigation. See e.g. Plaintiff's Motion to File Documents Under Seal re: Trigger of Coverage for Coal-Mine-Dust-Related Claims (Doc. Nos.  610, 643). The scheduling order of March 12, 2013, informed the parties that any motion to submit filings under seal must demonstrate that the " relief is authorized by and in full compliance with the principles governing the court's use of seal in conjunction with the right of access that attaches to matters that are submitted for an adjudication on the merits[,] . . . the parties will be required to meet their respective burdens in maintaining secrecy [and] [r]eliance on the confidentiality order entered in the instant case will be given minimal weight because of the over-inclusive nature of the protective order governing the parties' discovery productions and disputes." Order

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of March 12, 2013 (Doc. No. 646) at ¶ 5 (citations omitted).

A prevalent practice has developed in this district wherein litigants in civil cases seek to file materials under seal pursuant to little more than a designation of confidentiality by one or more of the parties pursuant to a broad protective order entered during the discovery phase of the case. The practice has long been employed during the discovery phase. It increasingly is being employed in the adjudicatory phase of the case without distinction between the two or acknowledgement of the differing standards that ultimately bear on the court's use of its authority to seal. But there is an important difference between the showing required to obtain a protective order authorizing confidentiality during the course of discovery and the one needed to maintain documents and information under seal that are part of the judicial record of an adjudication. In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). And the parties' motions seek to satisfy the later.

A common practice also has developed to permit the requested filings to be made without a thorough review where they are submitted without objection and then to examine them more closely only when a subsequent challenge is made to the ongoing necessity of keeping the documents under seal. See Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 166 (3d Cir. 1993) (emphasizing the important difference between the scope and nature of the review undertaken where the parties seek without meaningful objection to maintain confidentiality over judicial records based on the showing needed for a protective order and the review undertaken pursuant to a dispute grounded in the public right of access doctrine). The parties have not raised such a dispute or requested such a review.

Nevertheless, the court has an inherent obligation to review and supervise the files being placed on its docket and a concomitant obligation to assure that the use of its authority to keep matters from public scrutiny properly is being employed. Id. (" We must rely in the first instance on the district courts to protect the legitimate public interest in filed materials from overly broad and unjustifiable protective orders agreed to by the parties for their self-interests." ) (citing United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) (" [T]he public's right to inspect judicial records may not be evaded by a wholesale sealing of court papers. Instead, the district court must be sensitive to the rights of the public in determining whether any particular document, or class of documents, is appropriately filed under seal." ). Further, we believe that the parties are better served if their proposed filings initially are reviewed under the standards that will govern any challenge to the use of this court's seal and they are able to make informed decisions about such filings and the course of the litigation in accordance with that initial assessment.[2] We turn to that undertaking as it relates to the parties' pending motions to seal.

The public right of access to judicial proceedings and records is integral and essential to the integrity of the judiciary. The common law right of access predates the Constitution. Bank of America National Trust and Savings Ass'n v. Hotel Rittenhouse Associates, 800 F.2d 339, 343 (3d Cir. 1986) (" The right of the public to inspect and copy judicial records antedates

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the Constitution." ) (citing United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981)). The existence of the right is beyond dispute. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780-781 (3d Cir. 1994) (citing Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d Cir. 1988) (the public's interest in access is " beyond dispute" ) (internal quotation marks and citation omitted)); accord United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (same).

The right is pervasive. In re Cendant, 260 F.3d at 192. It applies to all aspects of the judicial process where substantive determinations are made. Bank of America, 800 F.2d at 343 (presumption of right of access applicable to various pretrial hearings encompassing substantive rulings); United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir. 1985) (" Although [the Supreme Court's cases] concerned access to judicial proceedings, no reason occurs to us why their analysis does not apply as well to judicial documents, as we previously so applied it in Martin, 746 F.2d at 968." ) (citing Associated Press v. United States District Court, 705 F.2d 1143, 1145 (9th Cir. 1983)). It likewise attaches to documents filed with the court in conjunction with a request for adjudicatory relief. Bank of America, 800 F.2d at 343; accord Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (The common law right of access gives rise to a presumption in favor of access to " public records and documents, including judicial records and documents." ).

The " presumption that the public has a right to inspect and copy judicial records serves numerous salutary functions." Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 161 (3d Cir. 1993). The right of access " in civil cases promotes public confidence in the judicial system." Id. (quoting Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991)). " As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness." Id. It attempts to assure the public gains " a more complete understanding of the judicial system and a better perception of its fairness." Id. " In addition, access to civil proceedings and records promotes 'public respect for the judicial process' and helps to assure that judges perform their duties in an honest and informed manner." Id. (citation omitted) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)); accord Publicker Industries, 733 F.2d at 1070 (" From these authorities we conclude that public access to civil trials 'enhances the quality and safeguards the integrity of the factfinding process.' Id. It 'fosters an appearance of fairness,' id., and heightens 'public respect for the judicial process.' Id. It 'permits the public to participate in and serve as a check upon the judicial process -- an essential component in our structure of self-government.' Id. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs." ) (quoting Globe Newspaper, 457 U.S. at 606)).

The " strong presumption" of openness does not permit the routine closing of judicial proceedings. Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994). The United States Court of Appeals for the Third Circuit expressly has " applied the presumption of public access to a variety of civil hearings and records, including the transcript of a civil trial and exhibits admitted

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at trial, Littlejohn, 851 F.2d 673; settlement documents filed with the district court as well as post-settlement motions, Bank of America, 800 F.2d 339; and a civil hearing for a preliminary injunction and transcripts of that hearing, Publicker Industries, 733 F.2d 1059." Republic of the Philippines, 949 F.2d at 660. It also has applied it in a case where the claims have been adjudicated and no further recourse is available. Miller, 16 F.3d at 551.

" Access means more than the ability to attend open court proceedings; it also encompasses the right of the public to inspect and to copy judicial records." Littlejohn, 851 F.2d at 678 (citing Criden, 648 F.2d at 819). This is because documents filed with a court in the course of adjudicatory proceedings generally must be presumed to have entered into the public domain. Leucadia, 998 F.2d at 161-62. The presumption thus extends to all " pretrial motions of a nondiscovery nature." Leucadia, 998 F.2d at 164.

In contrast, conducting discovery is not undertaken as part of the public component of civil adjudication and the presumption does not attach to discovery motions merely seeking shelter from overly aggressive demands or to compel more adequate responses. Id. This historical understanding is buttressed by the mechanisms embodied in Federal Rules of Civil Procedure 5(d) and 26(c) which provide normative rules governing public access to discovery and a mechanism for a court to lift or modify a protective order that is precluding a party from making public unfiled discovery materials. Id. (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789-90 (1st Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989)).

The right of access applies to documents and evidentiary materials submitted in support of summary judgment. Republic of the Philippines, 949 F.2d at 660-61. The disposition of such a motion does not affect the presumption that applies to such submissions. Id. at 660. This is because the need for public scrutiny is at its zenith when the motion is dispositive and is of a comparable level when the motion is denied because the ruling tends to shape the scope and substance of the litigation as the parties proceed to trial. Id.; accord Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (the strong presumption in favor of public access applies with particular force to judicial records relating to summary judgment because those proceedings adjudicate the substantive rights of parties and often serve as a substitute for trial); Carnegie Mellon University v. Marvell Technology Group, Ltd., 2013 WL 1336204, *10-11 (W.D. Pa. March 29, 2013) (documents filed with the court and incorporated or integrated into the court's adjudicatory proceedings are subject to the heightened standards mandated by the common law presumption of public access).

The same panoply of rights also are protected by the First Amendment. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066-67 (3d Cir 1984). This protection applies to both civil and criminal proceedings. Id. at 1070 (" A presumption of openness inheres in civil trials as in criminal trials." ). " However, the parameters of the First Amendment right of access to civil proceedings are undefined. There remain significant constitutional questions about what documents are subject to its reach." In re Cendant, 260 F.3d at 198 n. 13 (citing Littlejohn, 851 F.2d at 680 n. 14); but see Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 510, 513-20 (3d Cir. 2013) (Sloviter, J.) (outlining with clarity the principles governing application of the First Amendment right of access to state-sponsored arbitration

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proceedings involving members of the Delaware judiciary).

" Just as the right of access is firmly entrenched, so also is the correlative principle that the right of access, whether grounded on the common law or the First Amendment, is not absolute." Bank of America, 800 F.2d at 344. " Every court has supervisory power over its own records and files, and access [appropriately] has been denied where court files might have become a vehicle for improper purposes." Littlejohn, 851 F.2d at 678 (quoting Nixon, 435 U.S. at 598). " The common law thus merely establishes a presumption of public access to court proceedings and court records." Id. (quoting Nixon, 435 U.S. at 602).[3]

" [T]he strong common law presumption of access must be balanced against the factors militating against access." Id. " The party seeking to seal any part of a judicial record bears the heavy burden of showing that 'the material is the kind of information that courts will protect' and that 'disclosure will work a clearly defined and serious injury to the party seeking closure.'" Miller, 16 F.3d at 551 (citing Publicker Industries, 733 F.2d at 1071)); accord Leucadia, 998 F.2d at 165 (" The burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption." ) (citing Bank of America, 800 F.2d at 344). Such an injury must be shown with specificity. Publicker Industries, 733 F.2d at 1071. " Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." In re Cendant Corp., 260 F.3d 183, 194.

" Documents containing trade secrets or other confidential business information may be protected from disclosure." Leucadia, 998 F.2d at 166 (citing Nixon, 435 U.S. at 598) (" courts have refused to permit their files to serve as . . . sources of business information that might harm a litigant's competitive standing." )). In Westinghouse, the Third Circuit recognized that " '[t]he potential effects of the disclosure of business information that might harm the litigant's competitive standing may in some cases meet the burden [needed to keep] the judicial record under seal." Westinghouse, 949 F.2d at 663 (quoting district court); accord Leucadia, 998 F.2d at 166 (same) and Littlejohn, 851 F.2d at 685 (same).

The traditional form of confidential commercial information that militates against disclosure is the existence of trade secrets where disclosure would create a sufficient threat of irreparable harm. Publicker Industries, 733 F.2d at 1071 (citing Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir. 1974)). Documents do not contain trade secrets merely because a party has deemed them to be confidential. Littlejohn, 851 F.2d at 685. To the contrary, trade secrets generally have independent status under the substantive law. Id. (citing Restatement of Torts § 757 comment b (1939) (definition of a trade secret)); O.D. Anderson, Inc. v. Cricks, 2003 PA Super 13, 815 A.2d 1063, 1070 (Pa. S.Ct. 2003) (" The courts of this Commonwealth have generally accepted Section 757 of the Restatement of Torts

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as the basic outline for our trade secrets law." ); 12 Pa. C. S. § 5301.

In contrast, " non-trade secret but confidential business information is not entitled to the same level of protection from disclosure as trade secret information." Littlejohn, 851 F.2d at 685; Westinghouse, 949 F.2d at 663 (business information alleged to be confidential is not entitled to the weight accorded to trade secrets). An interest in preserving the corporation's reputation from the commercial effects of embarrassment has not been given significant weight. Littlejohn, 851 F.2d at 685 (citing Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983) (harm to corporate reputation not sufficient to overcome common law presumption of access), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984)). Similarly, disclosures that merely carry a potential to affect adversely sales and/or a potential loss in capital stock value fall short of warranting secrecy. Id. (" The injury that BIC describes is an adverse effect on its disposable lighter sales by competitive use of the information and a potential loss in its capital stock value. However, as we stated in Publicker, '[t]he presumption of openness plus the policy interest in protecting unsuspecting people from investing in Publicker in light of its bad business practices are not overcome by the proprietary interest of present stockholders in not losing stock value or the interests of upper-level management in escaping embarrassment.'" ). This includes information bearing on defects and safety concerns with products. Id. Sheltering such matters does not advance an important public interest or show with specificity how disclosure will work a clearly defined and serious injury to protectable business interests. Id. at 684 (" [E]scaping disclosure of problems with [a company's] products which have injured consumers does not outweigh the presumption of openness plus the public interest in disseminating information about consumer goods that cause personal injury." ).

In ordinary civil litigation, precluding access to the entire judicial record is a very unusual step. Miller, 16 F.3d at 551. Cases upholding such measures by the Third Circuit have been the exception. Id. These include: Capital Cities Media, Inc. v. Chester, 797 F.2d 1164 (3d Cir. 1986) (in banc) (internal documents of administrative agencies); First Amendment Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467 (3d Cir. 1986) ( in banc ) (state judicial discipline proceedings); Publicker, 733 F.2d at 1073 (trade secrets); United States v. Criden, 681 F.2d 919, 921 (3d Cir. 1982) ( Criden III ) (material explicitly determined to be impermissibly injurious to third parties); and Criden I, 648 F.2d at 829 (same); accord Criden I, 648 F.2d at 830 (Weis, J. concurring and dissenting) (" Counseling against access would be such matters as improper use, including publication of scandalous, libelous, pornographic, or trade secret material; infringement of fair trial rights of the defendants or third persons; and residual privacy rights." ). The moving party must articulate " compelling countervailing interests to be protected" before such a measure can be employed. Miller, 16 F.3d at 551.

The " compelling countervailing interests" showing also applies where the civil litigation has a component of heightened public interest such as a class action where members of the public are also class members. In re Cendant, 260 F.3d at 194. The potential of the litigation to affect the rights of such members of the public gives rise to a heightened need for judicial transparency and warrants particular strictness in the test for overriding the right of access. Id. In such circumstances the heightened showing is required for sealing any process or hearing that is important

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to the administration of the case. Id.

Whether the material or information has been produced pursuant to a confidentiality order governing discovery is another factor that must be taken into account. Pansy, 23 F.3d at 790. The entry of a confidentiality order governing documents and information produced during discovery does not convert such materials into judicial records. Id. at 782 (" Simply because a court has entered a confidentiality order over documents does not automatically convert those documents into 'judicial records' accessible under the right of access doctrine. For example, when a court enters an order of protection over documents exchanged during discovery, and these documents have not been filed with the court, such documents are not, by reason of the protective order alone, deemed judicial records to which the right of access attaches." ) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30-37, ...

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