Opinion
633/02.
Decided February 13, 2004. January 16, 2004.
Jerold S. Slate, Esq. Poughkeepsie, NY.
Jonathan B. Bruno, Esq. Kaufman, Borgeest Ryan New York, NY.
Henry R. Kaufman, Esq. New York, NY.
Melanie Ferris, Beacon, NY.
Doreen Ferris Cold Spring, NY.
David E. McCraw, Esq. Legal Department The New York Times Company New York, NY.
The following papers, numbered 1 to 14, read on this motion by Margaret O'Sullivan, The Putnam County News and Recorder, Brian O'Donnell and PCNR (collectively and hereafter, the "Newspaper Defendants") for an order pursuant to 22 NYCRR 216.1 (1) unsealing all documents as to which there has been no finding of good cause to justify their continued sealing, (2) vacating and substantially narrowing the protective order dated November 27, 2002 and (3) scheduling a hearing on sanctions.
Notice of Motion, Affidavit in Support and Memorandum of Law in Support 1-3 Attorney Affirmation, Preliminary Memorandum of Law in Opposition And Memorandum of Law in Opposition 9-11 Exhibits 4-8, 12-14
Upon the foregoing papers, it is ordered that this motion is granted to the extent that the sealing order is superceded, and all court records are unsealed as to which there has been no finding of good cause to justify their continued sealing.
This defamation action was brought by plaintiff John Visentin, a high school English teacher, against his former employer, Haldane Central School District and its Superintendent, John DiNatale (hereafter, the "School Defendants"). Plaintiff also sued the local newspaper, the Putnam County News and Recorder, its publisher Brian O'Donnell and PCNR, Inc. and reporter Margaret O'Sullivan after an article concerning plaintiff's termination from that employment appeared in a front page article on May 9, 2001. Plaintiff also named as defendants then-student Melanie Ferris, who was involved in an incident with plaintiff on May 1, 2001 that led to his dismissal, and her stepmother, Doreen Ferris. According to plaintiff, the defamatory statements that appeared in the article were derived solely from statements made by the Superintendent, defendant John DiNatale, during a telephone interview with reporter Margaret O'Sullivan.
During the discovery phase of this action, the parties entered a "Protective Order, Confidential Stipulation and Agreement," which was so ordered by a Justice of the Supreme Court on November 27, 2002. The stipulation broadly provides that:
a party may designate as "confidential" any material it reasonably and in good faith believes to contain information, expressions or opinions that is confidential, privileged, private, sensitive, misleading, stigmatizing, false, slanderous, libelous, defamatory or otherwise the subject of a protective order under CPLR 3103(a) or such other applicable provision of law or legal principle.
Pursuant to this stipulation, plaintiff designated all documents as confidential, including the newspaper article at the core of the defamation suit and all papers submitted in connection with the pending motions for summary judgment, intervention and the instant motion to unseal the records, effectively insulating the entire record from public access.
The Newspaper Defendants, as well as certain news organizations that moved to intervene for the "limited purpose of enforcing the public's right of access" to the proceedings, now seek to vacate the sealing order and unseal the records submitted on the motions for summary judgment. By Order dated November 13, 2003, the Court directed the unsealing of the papers submitted on this motion to unseal. In unsealing these papers, the Court noted that the purpose was to "enable potential amicus curiae" — presumably the proposed intervenors — "to consider whether to make any filings in connection with the motion to unseal." While this Court has not granted the news organizations' motion to intervene, the papers submitted in support of and in opposition to that motion have been considered by this Court, pursuant to 22 NYCRR Rule 216.1, on this motion to unseal, to assist in the consideration of the public interest in unsealing. For the following reasons, the application of the named Newspaper Defendants to unseal the records submitted in connection with the summary judgment motions is granted. Additionally, the protective order, applicable during the discovery stage, is now superceded and all documents are deemed unsealed unless determined to be sealed by written order of this Court upon a finding of good cause (22 NYCRR Rule 216.1). The Stipulation at issue provides that "in the event this litigation proceeds to trial, any party may, upon notice and for good cause shown, apply for modification of this protective order." This case is now trial-ready and, at this time, it is appropriate for this Court to entertain this motion to modify the sealing order pursuant to the terms of the parties' Stipulation.
The motion by certain News Organizations to intervene in these proceedings was denied by separate order signed this date.
Indeed, whatever scope of sealing may have been considered appropriate during the pretrial disclosure stage, it is well recognized that, once materials are introduced or filed in open court, either at trial or in connection with court rulings on substantive motions, they become presumptively subject to unsealing, even if considered confidential ( Danco Labs. v. Chemical Works of Gedeon Richter, 274 AD2d 1, 7 [1st Dep't 2000]; 22 NYCRR Rule 216.1). To be sure, records filed and considered in connection with dispositive motions, such as the pending motions for summary judgment in this matter, should, like evidence introduced at trial, be open to the public, given the potential for a final adjudication on the merits of the matter ( Danco Labs. v. Chemical Works of Gedeon Richter, 274 AD2d 1, 7).
Under 22 NYCRR Rule 216.1, all documents and records filed with the Court are "court records," presumptively open to the public. To overcome this presumption, plaintiff bears the burden of demonstrating that good cause exists to continue the sealing beyond the discovery stage of trial (22 NYCRR Rule 216.1; Danco Labs. v. Chemical Works of Gedeon Richter, 274 AD2d 1, 8; Coopersmith v. Gold, 156 Misc 2d 594, 606). The fact that the parties had previously stipulated to the sealing during discovery "does not obviate the need" for plaintiff to now establish good cause to continue the sealing pursuant to Rule 216.1 ( Matter of Estate of Matilda K. Benkert, 288 AD2d 147). To demonstrate "good cause," the proponent of the sealing application must establish that "compelling circumstances" exist to justify secrecy ( Herald Co. v. Weisenberg, 59 NY2d 378, 384). Plaintiff has not met that burden here.
In opposition to this motion, plaintiff contends that he will be subject to embarrassment, stigma and humiliation as a result of the disclosure of the papers submitted on the motions. However, embarrassment, damage to reputation and the general desire for privacy do not constitute good cause to seal court records ( Liapakis v. Sullivan, 290 AD2d 393, 394 [1st Dep't 2002]; In re Will of Matilda Benkert, 288 AD2d 147 [1st Dept's 2001]; In re Will of Hofmann, 284 AD2d 92, 94 [1st Dep't 2001]). Indeed, the cases cited by plaintiff to support his contention that the courts have discretion to seal material that is injurious, humiliating and derogatory all pertain to protective orders issued during the discovery phase of trial ( see e.g. Seattle Times Co. v. Rhinehart, 467 US 20; In re Alexander Grant Co., 820 F2d 352 [11th Cir. 1987]; Westchester Rockland Newspapers, Inc. v. Marbach, 66 AD2d 335, 337-338).
Indeed, "[p]rivacy is a limited right which * * * exists only to the extent created by statute" and plaintiff does not fall within the class of individuals protected by that statute ( see John Doe I v. Bellmore-Merrick Central High School Dist., 2003 WL 22888335 [Sup. Ct. Nassau Cty] [12/3/03]; Civil Rights Law § 50-b).
Plaintiff further contends that sealing is warranted because the papers, including deposition testimony and even the article in question, contain "disputed statements * * * which are the false and defamatory material which underlies the defamation action" and will only serve to further disclose the defamation. However, since the article in question has already been publicly disseminated and is demonstrably of public interest, sealing of the record is inappropriate ( Coopersmith v. Gold, 156 Misc 2d 594, supra).
Additionally, although plaintiff claims that the papers filed in connection with the motions for summary judgment should be sealed because they "will, of necessity, need to articulate * * * [plaintiff's] private, personal employment records and medical and health status," an examination of the submissions demonstrates that no such personal information has been revealed. Indeed, there is no overriding concern here that defendants will utilize or disclose plaintiff's personal information for an improper purpose ( cf. Anonymous v. Anonymous, 263 AD2d 494, 494-495, lv dismissed 94 NY2d 838). Since plaintiff is challenging the newspaper's account that he was involved in prior incidents during his teaching tenure at the school, the defendants' references to plaintiff's involvement in prior school-related incidents in their respective motions for summary judgment are unavoidable and unobjectionable. Accordingly, under the circumstances, the Court finds no good cause to justify the continued sealing of the papers submitted in connection with the summary judgment motions and the motion for intervention pursuant to the Stipulation. Thus, the so-ordered stipulation that previously governed confidentiality in this matter is now superceded. Of course, the parties remain free to seek sealing of specific documents pursuant to 22 NYCRR part 216.1.
Finally, to the extent that the Newspaper Defendants are seeking sanctions, the motion is denied. The Newspaper Defendants stipulated to the sealing conditions at issue, thereby negating any claim that the need to bring this motion to unseal, which is contemplated by the stipulation, justifies sanctions.
In order to permit plaintiff, if he be so advised, to take an appeal and seek a stay from the Appellate Division, this order shall not take effect until February 24, 2004.