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APPELLATE SPOTLIGHT Mark Hamblett New York Law Journal Summary judgment documents filed under seal are “judicial documents” to which news organizations have a presumptive right of access under common law and the First Amendment, the 2d U.S. Circuit Court of Appeals has ruled. Lugosch v. Pyramid Co. of Onondaga, No. 05-3620-cv. The panel, in an opinion written by Judge Robert A. Katzmann, found that a district court had erred in holding in abeyance a motion of The Herald Co. and the Capital Newspapers division of the Hearst Co. to intervene in a case. However, the court said that it was not in a position to “assess whether the presumption is overcome by countervailing factors,” and it remanded the case to Judge Norman Mordue of the Northern District of New York for further proceedings. The Herald Co. sought to intervene in a case brought by minority general partners of Pyramid Co. of Onondaga, N.Y., who alleged financial improprieties by the company and its majority general partner, Robert J. Congel. But Magistrate Judge Randolph Treece held the motion to intervene and inspect the documents “in abeyance” until Mordue ruled on a summary judgment motion. Mordue upheld the decision and the Herald Newspapers appealed to the 2d Circuit. The defendants’ motion for summary judgment included at least 25 sealed documents or sets of documents totaling some 4,000 pages. Mordue said that the assumption that the documents were “judicial documents” did not necessarily apply “in the unusual circumstances of this case,” where there had been 40 depositions, the parties had traded 2 million pages of documents, and where privileged information had been exchanged in reliance on a confidentiality order. Mordue said that it was “doubtful that the entirety of this massive motion record” would be relevant and useful to the judicial function, and that it was too early to tell which documents would “play a substantial role in determining the litigants’ substantial rights.” According to Katzmann, 2d Circuit precedent made it clear that summary judgment documents are judicial documents to which a strong presumption of access attaches. Other circuits have clearly held that this is so, he said, and the 4th Circuit has specifically said that there is little difference between a trial and a summary judgment motion because a summary judgment motion “adjudicates substantive rights and serves as a substitute for trial.” “As a matter of law,” Katzmann said, “we hold that the contested documents-by virtue of having been submitted to the court as supporting material in connection with a motion for summary judgment-are unquestionably judicial documents under common law.” More importantly, he said that it could “not avoid” the question of whether the same presumption of access exists under the First Amendment, “for the Newspapers ask us to impose the higher constitutional burden requiring disclosure.” Katzmann said that “our precedents point in the direction of the existence of such a right, and we now join the Fourth Circuit in stating so clearly.” On remand, the circuit directed the lower court, if it decides that the presumption of access can be overcome, to state “specific, on-the-record findings that higher values necessitate a narrowly tailored sealing.” And it said the district court “must make its findings quickly. “Here, the Newspapers had to wait for months during which the district court and the magistrate judge seemingly took no action on their motion to intervene, and the underlying motion on whose indeterminate resolution the district court and the magistrate judge relied has been pending for a year and a half,” Katzmann said. “The public cannot properly monitor the work of the courts with long delays in adjudication based on secret documents.”

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