Superior Court of New Jersey,
Appellate Division.
Antonia VERNI, an infant, by her guardian ad
litem, Albert BURSTEIN, and Fazila Baksh Verni,
Individually, Plaintiffs-Respondents,
v.
Daniel R. LANZARO, Ronald A. Verni, The New
Jersey Sports & Exposition Authority,
New York Giants, Giants Stadium, Shakers, The Gallery,
Michael Holder, Elrac, Inc. d/b/a Enterprise Rental
Car, Toyota Motor North America, Inc., Paul
Smith, National Football League, and
Paul Tagliabue-Commissioner, Defendants,
and
Harry M. Stevens, Inc. of New Jersey, Aramark
Services Management of New Jersey, Inc., Aramark
Corporation, and Aramark Sports and Entertainment
Group, Inc., Defendants-Respondents,
and
Public Citizen, Intervenor-Appellant.
Argued Oct. 8, 2008.
Decided Dec. 3, 2008.
Background: Mother and daughter brought negligence action against motorist, concessions contractor for professional football team‘s stadium, lessor of beer servers to contractor, and two bars, relating to collision between vehicle in which plaintiffs had been passengers and motorist’s vehicle, and alleging that motorist had been intoxicated after spending the afternoon at professional football game and at two bars after motorist had left the football stadium. The Superior Court, Law Division, Bergen County, entered judgment on jury‘s verdict finding motorist and concessions contractor, and lessor of beer servers liable, and awarding daughter $53,950,000 in compensatory damages and $65,000,000 in punitive damages, and mother $6,500,000 in compensatory damages and $10,000,000 in punitive damages. Defendants appealed. The Superior Court, Appellate Division, 387 N.J.Super. 160, 903 A.2d 475,Cuff, P.J, P.J.A.D., reversed and remanded for new trial. Prior to commencement of new trial, mother and daughter reached settlement with concessions contractor and court entered consent order that provided balance of all proceedings were to be filed under seal. A litigation group of attorneys filed motion to intervene and to unseal record, and court granted motion to intervene but denied motion to remove seal. Litigation group appealed.
Holdings: The Superior Court of New Jersey, Appellate Division Cuff, P.J.A.D. held that: (1) order sealing court records other than settlement was overbroad, and (2) order sealing settlement proceedings was overbroad. Reversed.
(1) order sealing court records other than settlement was overbroad, and
(2) order sealing settlement proceedings was overbroad.
Reversed.
West Headnotes
[1] Records 326 32
326 Records
326II Public Access 326II(A) In General
326k32 k. Court records. Most Cited Cases
Although the decision to seal or unseal documents is vested in the discretion of the judge, that discretion is not unfettered. Rule 1:2-1.
326 Records
326II Public Access 326II(A) In General
326k32 k. Court records. Most Cited
A personal interest in privacy and freedom from annoyance and harassment, while important to the litigant, will not outweigh the presumption of open judicial proceedings even in relatively uncomplicated and non notorious civil litigation; on the other hand, when an application is filed with a court that pertains to a purely private matter, an order sealing the submissions may be appropriate. U.S.C.A. Const.Amend 1; Rule 1:21.
[3] Records 326 32
326 Records
326II Public Access 326II(A) In General
326k32 k. Court records. Most Cited Cases
Order sealing settlement proceedings and documents following a personal injury settlement was overbroad and inconsistent with principles guiding imposition of a seal on judicial proceedings; express terms of order were without limitation, it was applied to seal all proceedings subsequent to its date, not just settlement of the personal injury claim, and thus prevented public from obtaining information about resolution of a fee dispute between the attorneys, and absent an eventbyevent and documentbydocument review, such a sweeping order could not stand. U.S.C.A. Const.Amend 1; Rule 1:21.
The presumption of openness to court proceedings requires more than a passing nod; open access is the lens through which the public views government institutions. Rule 1:21.
[4] Records 326 32
326 Records
326II Public Access 326II(A) In General
326k32 k. Court records. Most Cited Cases
Order sealing settlement proceedings and associated documents in personal injury litigation, including testimony of guardian ad litem, was overbroad and inconsistent with principles guiding imposition of seal on judicial proceedings; accident victims advanced no reasons for sealing settlement proceedings and documents other than simple desire for privacy based on past acts of domestic violence and misappropriation of prior settlement funds by a former husband whose family contact was later limited by restraining order, and which did not outweigh public interest in issues of significant public concern raised by case. U.S.C.A. Const.Amend 1; Rule 1:21.
[5] Trial 388 20
388 Trial
388III Course and Conduct of Trial in General
388k20 k. Publicity of proceedings. Most
The presumption of openness to court proceedings requires more than a passing nod; open access is the lens through which the public views government institutions. Rule 1:21.
**407 Alan Y. Medvin, Newark, argued the cause for appellant (Medvin & Elberg and Public Citizen Litigation Group, attorneys; Mr. Medvin and Gregory A. Beck, on the brief).
David A. Mazie, Roseland, argued the cause for respondents Antonia Verni, by her guardian ad litem, Albert Burstein, and Fazila Verni ( Mazie Slater Katz & Freeman, LLC, attorneys; Mr. Mazie and David M. Freeman, on the brief).
David W. Field, Roseland, argued the cause for respondents Harry M. Stevens, Inc. of N.J. and Aramark Services Management of N.J., Inc.
(Lowenstein Sandler PC, attorneys; Mr. Field and Priya R. Masilamani, on the brief).
Before Judges CUFF, FISHER and BAXTER.
The opinion of the court was delivered by CUFF, P.J.A.D.
*19 Antonia Verni suffered catastrophic injuries in an automobile accident. She is now a ventilatordependent quadriplegic who will require significant medical care her entire life. She was two years old at the time of the accident in 1999. Her mother, Fazila Verni, also suffered serious injuries in this accident. She has recovered from these injuries. The driver of the car that collided with the car driven by Antonia’s father was intoxicated, having consumed copious amounts of alcohol in the parking lot of Giants Stadium prior to a football game and inside the stadium during the game.
Antonia and her mother commenced a civil action against the driver of the other vehicle, the dispenser of alcoholic beverages inside the stadium, the owner and operator of the stadium, the National Football League and its commissioner, two other bars at which the other driver stopped after the game, and the driver’s companion. Several defendants settled the claims against them prior to trial. A jury trial accompanied by extensive publicity commenced on December 20, 2004. In midJanuary 2005, the jury returned a verdict in favor of Antonia and her mother in the aggregate amount of $109,667,750 against defendants Harry M. Stevens, Inc. of New Jersey (Harry M. Stevens), the holder of the license to sell alcoholic beverages at Giants Stadium, and defendant Aramark Services Management of New Jersey, Inc., Aramark Corporation, and Aramark Sports and Entertainment Group, Inc. (Aramark). Harry M. Stevens was a wholly owned subsidiary of Aramark. This court reversed the verdict and remanded the matter for a new trial. Verni ex rel Burstein v. Harry M. Stevens, 387 N.J.Super. 160, 903 A.2d 475 (App.Div.2006), certif. denied, 189 N.J. 429, 915 A.2d 1052 (2007).
Prior to commencement of the new trial, Antonia and her mother reached a settlement with Aramark. They applied for an *20 order to seal the amount and terms of the settlement but not the fact of a settlement. The motion was unopposed but plaintiffs presented the testimony of Antonia’s guardian ad litem who explained the reasons for the application. On June 7, 2007, the judge entered a consent order that provided “the balance of all proceedings**408 in this matter shall be filed under seal and the Clerk is hereby instructed to accept any and all filings under seal.”
The order was accompanied by an opinion in which the judge explained his ruling. He related that Antonia’s father, Ronald Verni, had misappropriated funds received from settlements earlier in the litigation from other defendants. He found that protection of the settlement funds was an important government interest. He also noted that a history of domestic violence required issuance of a restraining order. He reasoned that sealing the record of the settlement minimized the chances that Antonia’s father, who is estranged from the family, would return to New Jersey. For these reasons, the judge concluded that “sealing the balance of the record … is clearly justified.” That opinion and the tape of the reading of the opinion were included within the sealing order.
On October 10, 2007, Public Citizen filed a motion to intervene and to unseal the record. By order dated November 16, 2007, the court granted the motion to intervene but denied the motion to remove the seal. The judge released his previously sealed June 7 opinion to enable the parties to “understand the rationale and reasons why the settlement and the hearings themselves must remain sealed.” It is from this order that Public Citizen appeals.
Public Citizen argues that the common law, rules of court, and the First Amendment of the United States Constitution recognize the need for open court records and court proceedings. It also contends that a court record or court proceeding may be sealed only to protect a substantial interest, and the Verni family’s articulated interest in privacy does not justify the June 7 order. Public Citizen also maintains that the order is overbroad and that the countervailing public interest in dissolving the seal is strong.
*21 Antonia and her mother respond that the order was appropriate under the circumstances of this case. They emphasize that they have identified a specific harm that militates against indiscriminate dissemination of information about the ultimate disposition of the case. Aramark argues that the sealing order advances the individual and public interests in assuring the preservation of the settlement fund for Antonia’s needs.
There has been some uncertainty about the scope of the June 7 order. Plaintiffs suggested that it was meant to seal only orders, documents and testimony relating to the settlement of the personal injury matter and was not intended to encompass a fee dispute between plaintiffs’ initially retained attorney and substituted trial counsel. Public Citizen argued that all proceedings from June 1, 2007, when the “friendly” proceeding was conducted and Antonia’s guardian ad litem testified, through the ultimate resolution of the fee dispute remained sealed.
FN1. See R. 4:443.
The terms of the June 7, 2007 order are not confined to the settlement of the personal injury claims of Antonia and her mother. Public Citizen filed a motion to supplement the record with certain documents, including a copy of the docket sheet for this matter. We have granted that motion and the docket sheet confirms our interpretation of the June 7 order. That is, all proceedings and all documents filed in conjunction with this matter since June 1, 2007, have been placed under seal.
The breadth of the June 7 order is inconsistent with the principles guiding the imposition of a seal on judicial proceedings. Furthermore, given the wideranging**409 publicity and comment generated by the accident and attendant litigation, plaintiffs have failed to demonstrate that their concerns for privacy outweigh the strong presumption of access to court records.
Rule 1:21 directs that all proceedings in the courts of this State shall be conducted in open court. Pertinent to the issues in this *22 case, the rule provides that no record of any proceeding may be sealed except on a showing of good cause. This requirement has its roots in our common law aversion to and distrust of secret trials. Sheppard v. Maxwell, 384 U.S. 333, 34950, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613 (1966); Smith v. Smith, 379 N.J.Super. 447, 451, 879 A.2d 768 (Ch.Div.2004). Moreover, our Supreme Court has acknowledged that the First Amendment, the history of this State, and our court rules require that civil proceedings shall be open to the public unless “an important state interest is at stake.” N.J. Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 127, 576 A.2d 261 (1990).
In Hammock v. HoffmannLaRoche, Inc., 142 N.J. 356, 662 A.2d 546 (1995), Public Citizen, the intervenor in this case, sought access to material filed with the court in support of and in opposition to certain motions in a pharmaceutical products liability case. Some of the documents attached to the motion papers were subject to a protective order. Id. at 361, 662 A.2d 546. The Court noted that the good cause requirement of Rule 1:21 is not defined; therefore, it announced guidelines for deciding when the public should have access to documents filed with the court during the course of litigation. In doing so, the Court summarized its review of precedent and noted that “[t]here is a presumption of public access to documents and materials filed with a court in connection with civil litigation.” Id. at 375, 662 A.2d 546. The right to access is not absolute and a court may craft an appropriate protective order. Ibid. The party or person seeking to overcome the presumption in favor of public access bears the burden to convince a court that the interest in secrecy outweighs this presumption. Id. at 37576, 662 A.2d 546. Finally, a reasonableness standard applies when a person or party seeks to rebut the presumption of openness. Id. at 376, 662 A .2d 546.
The Court proceeded to recognize a “profound public interest when matters of health, safety and consumer fraud are involved” that is independent of the interest of the parties to the litigation. Id. at 379, 662 A.2d 546. Therefore, a judge must carefully *23 scrutinize an application to seal records or documents “in a high publicinterest case.” Ibid.
[1] Moreover, although the decision to seal or unseal documents is vested in the discretion of the judge, that discretion is not unfettered. Id. at 380, 662 A.2d 546. In fact, the Court stated that it should be “structured.” Ibid. The Court held that dispositive motions, such as summary judgment motions, require public access, ibid., and further directed
that a judge must utilize “a flexible balancing process adaptable to different circumstances … to determine whether the need for secrecy substantially outweighs the presumption of access.” Id. at 381, 662 A.2d 546 (emphasis supplied). In addition, “the person who seeks to overcome the strong presumption of access must establish by a preponderance of the evidence that the interest in secrecy outweighs the presumption. The need for secrecy must be demonstrated with specificity as to each document. ” Ibid.
The Court also emphasized that the use of a protective order at one stage of the proceeding does not create a presumption that the order is required in perpetuity. Therefore, the proponent of a sealing order**410 must demonstrate the current need for such protection. Id. at 382, 662 A.2d 546. Finally, the judge “must examine each document individually and make factual findings with regard to why the presumption of public access has been overcome.” Ibid.
In Lederman v. Prudential Life Insurance Co., 385 N.J.Super. 307, 897 A.2d 362 (App.Div.2006), this court addressed a motion by intervenor media companies to unseal the record in civil lit
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