United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE J.
of these cases, the defendant RSUI Indemnity Company
(“RSUI”) has moved to file under seal an exhibit
to its answer and affirmative defenses, and its motions for
judgment on the pleadings together with exhibits. The exhibit
to the answer is a copy of the Complaint filed in the Court
of Common Pleas of Montgomery County, Pennsylvania. RSUI
claims that the plaintiffs in these cases, Unequal
Technologies Company, Robert Vito and William Landman,
designated the Complaint as “Confidential”
pursuant to a confidentiality agreement which states that the
parties agree to use their “best efforts to have [any
documents marked] ‘CONFIDENTIAL' . . . filed under
motions for judgment on the pleadings and the exhibits
attached to them do not contain any confidential information.
The exhibits consist of the insurance policy at issue, a
demand letter from an attorney, and pleadings in the two
underlying state court actions. Other than the order sealing
the complaint in the state court, RSUI does not assert any
grounds to support its request to seal.
cites the Stipulation and Order Sealing Documents that was
approved in the underlying state court action in the
Montgomery County Court of Common Pleas. It appears that the
state court judge did not conduct any inquiry to determine if
there was good cause for sealing the Complaint and instead
relied upon the parties' representation that “good
cause exists . . . to protect the parties to this litigation
from any unreasonable annoyance, embarrassment, oppression,
burden or expense that may result from the disclosure of such
confidential information.” The parties do not now offer
any justification for deeming the Complaint protected.
because the plaintiffs have designated the Complaint and
other documents as confidential does not make it so. Although
the parties may agree to shield information contained in
discovery materials, they may not do so once those materials
become part of the court record. Thus, the parties may have
entered into an agreement to keep documents confidential
during discovery, but that agreement does not protect
judicial documents from disclosure.
rigorous standard is applied in determining whether court
documents can be sealed than is applied to protective orders
shielding discovery materials. Once a discovery document
becomes a court document filed of record, a presumptive right
of public access arises. In Re: Avandia Marketing, Sales
Practices and Products Liability Litig., 924 F.3d 662
(3d Cir. 2019).
First Amendment right of access requires a much higher
showing than the common law right [of] access before a
judicial proceeding can be sealed.” Id. at 673
(citing In re: Cendant Corp., 260 F.3d 183, 198 n.13
(3d Cir. 2001)). Any restriction on this right is evaluated
under a strict scrutiny standard. Id.
presumption of openness may be overcome. Id. at 672
(citing Republic of the Philippines v. Westinghouse Elec.
Corp., 949 F.2d 653, 662 (3d Cir. 1991)). The party
seeking to seal documents has the burden of showing
“that the interest in secrecy outweighs the
presumption” and disclosure will cause the proponent
“a clearly defined and serious injury.”
Avandia, 924 F.3d at 671. In defining the injury,
the proponent must be specific. “Broad allegations of
harm, bereft of specific examples or articulated reasoning,
are insufficient.” Id. Absent specificity, a
court cannot conduct the balancing of competing interests
required before the presumption of public access can be
overcome by the parties' secrecy interests.
court analyzes a request for a sealing order, it must do so
on a document-by-document basis. Thus, the proponent of
sealing must articulate with specificity the injury that
would result if the particular document or parts of it were
orders may not be routinely entered without the requisite
rigorous analysis. A court must always balance the private
versus the public interests and articulate findings in
deciding whether to enter a sealing order. The motions
provide insufficient information to allow us to perform the
necessary balancing test.
stipulating to a confidentiality agreement in state court,
the parties there represented that good cause existed to
protect themselves from “unreasonable annoyance,
embarrassment, oppression, burden or expense that may result
from the disclosure of such confidential information.”
Although those reasons may be sufficient to justify an order
shielding discovery materials from disclosure, they are not
enough for a sealing order.
plaintiffs are seeking a declaration that RSUI has an
obligation to defend and indemnify them in the underlying
action in the Common Pleas Court of Montgomery County and the
Common Pleas Court of Chester County. Consequently, the state
court actions are the focus of the insurance dispute in this
case. In deciding whether there is a duty to defend and to
indemnify, we must review the Complaints in the underlying
actions. Our determination and rationale would have no
meaning without describing and considering the allegations in
those Complaints. The public is entitled to know the nature
of the dispute, and ...