The judge denied motions to seal court documents and instead orders redaction of limited personal information. The judge found the First Amendment and common law provide a right of public access to court documents. Settlement amounts and other information central to the case would not be redacted. The parties were asked to discuss procedures for implementing the redactions and public release of documents.
The judge denied motions to seal court documents and instead orders redaction of limited personal information. The judge found the First Amendment and common law provide a right of public access to court documents. Settlement amounts and other information central to the case would not be redacted. The parties were asked to discuss procedures for implementing the redactions and public release of documents.
The judge denied motions to seal court documents and instead orders redaction of limited personal information. The judge found the First Amendment and common law provide a right of public access to court documents. Settlement amounts and other information central to the case would not be redacted. The parties were asked to discuss procedures for implementing the redactions and public release of documents.
The judge denied motions to seal court documents and instead orders redaction of limited personal information. The judge found the First Amendment and common law provide a right of public access to court documents. Settlement amounts and other information central to the case would not be redacted. The parties were asked to discuss procedures for implementing the redactions and public release of documents.
THIS IS NOT A FINAL TRANSCRIPT. THIS IS A ROUGH DRAFT
TRANSCRIPT. THURSDAY, OCTOBER 16, 2014. (Prior proceedings were not requested at this time.) THE COURT: I don't want to cut the rest of you off but I'm going to. Because I think it's clear that I need to deny the motions that we've talked about so far to seal, and to order, instead, that we simply redact the things that are listed as on Mr. Cassada's page two. And so I will order that the record be open with respect to everything except Social Security numbers, except for the last four digits, days and months of birth, the names of identifiable minors, financial account numbers except the last four digits, and medical information except for claimed disease type. And will otherwise order the record unsealed and we'll talk about procedures, I guess, at the end. But the -- and I'll tell you why. The District Court said that I was first to identify the sources of the right to access in order to properly weigh the competing interests. And I think that Mr. Pflaum mentioned three sources, First Amendment, common law, and bankruptcy code. Although technically, I guess, maybe it's not necessary to reach the First Amendment issue, the District Court kind of told me to do that. So I'll talk about that a little bit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 I believe that the First Amendment does apply. Although this was not a finally adjudicative trial, in the sense of the normal civil or criminal trial. It was a significant determination that took place over, I think, more than 15 days of hearing which should have been public. I guess I should say by way of background, only that probably appropriate to observe that, what a long strange trip this has been. It's had a lot of twists and turns. I guess in a lot of ways I'm like Columbus. I set out on day one of the hearing not knowing where I was going, and when I got there I wasn't sure where I was. If I had to guess where I was going on day one, I wouldn't have guessed where I ended up. So we've had lots of twists and turns and I guess that makes things interesting. But, in any event, the hearing should have been opened to the public. This is the type of proceeding that would have historically been open, and public access would have served a positive role in the functioning of the Court by enabling the public to evaluate the Court's decision based on all of the evidence rather than on simply part of it. The First Amendment requires a compelling government interest to overcome the public's right to access and I can't find that such exists here. The common law rights require a balancing of interests, and I think here, which I'll discuss a little bit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 more in a minute, the balances are in favor of allowing access, and under the code I think there is -- under 107(a) the access is required. The restriction of assets appropriate -- restriction of access is appropriate only in unusual circumstances, and I don't think we have any of that here. As to the names of adult claimants, I can't find any extraordinary circumstances that would require anonymity. All of the adult claimants are named in state court complaints. I think also in the schedules in this proceeding. The names are necessary for matching with other information in order that things can be properly evaluated. With respect to the questionnaire responses and trust claims including the Delaware Trust Facility and settlement amounts, it's clear that case law holds that the fact that the information was produced pursuant to confidentiality agreement, or in this case seven confidentiality orders, that that doesn't determine the matter, and that the public's right to access overcomes whatever expectations may have been created by that. It's also clear that Federal Rule of Evidence 408 is not applicable to this determination. I believe that the public's right to access outweighs any policy favoring settlements that might be enhanced by keeping them confidential. There have been no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 specific showing of any negative impact on settlements. The settlement and the settlement amount are important to the issues in this case, because I guess in large measure the issue in this case is the settlement amounts. Any de-linking of names and settlement amounts, I think, would destroy the ability of the public to analyze the data, and to determine whether the evidence supported the decision. Who made the settlement and for how much is essentially the issue that is important here. I don't believe that the settlement amounts can be classified as financial information. They are very different than what is commonly understood to be financial information. The settlement amount is a conclusion of a publicly filed lawsuit, and not akin to a bank account. It's also probably worth noting that any of the settlements we're talking about here are now ancient history, at least the youngest one would be over four years old. I think that further reduces any risk of harm to individuals, or any risk of identity theft that might apply by disclosure of that information. I believe that the appropriate privacy interests of the individuals involved here are protected by the other redactions that I mentioned. So that will be my order on that matter. So I guess now let's go to Garlock's -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 MR. SWETT: Your Honor, I have one question by way of follow-up. It has to do with the medical information. It's possible that the advocacy on our side of this was a little too vague. Some of the claimants, I believe, submitted medical records, and the entire record is the medical information. Either redaction of those records will make them complete blanks, which would be a waste of effort, or they should be sealed instead of redacted. I'm not sure I'm making myself clear, but it just occurred to me in listening to your ruling, that the medical information is in a form that's unlike the social security number. THE COURT: I think that's fine. If redaction would lead something to be a blank page, we can simply seal it if that's simpler. But I believe the parties were pretty much in agreement that what -- the medical information that was appropriate was the disease type. MR. SWETT: Right. THE COURT: And not, you know, not the entire medical examination. MS. JOHNSTON: Your Honor, I might add. If a medical record is the only place where the type of asbestos disease appears, then in that limited circumstance, then a redaction or a reverse redaction would be appropriate, so that the type of disease is not shielded. Don't throw the baby out 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 with the bath water if this is the approach we're taking. MR. SWETT: We're thinking along the same lines. THE COURT: Thank you. Okay. (Further proceedings not requested at this time.) THE COURT: Mr. Swett, I don't want to cut you off -- well, I do. But I don't believe I should grant the request to seal that, so. Although the attorney-client privilege is something that's important and is entitled to substantial protection, I think this is an unusual situation where it is required to be made public. Garlock has asserted that its settlement history was impact -- adversely impacted by improprieties in the process. It has done so I think as early as the information brief that was filed along with the petition in this case. The Court ordered the disclosure of the MEAs and PEFs only after Garlock's general counsel began testifying about its reasons for settling cases in general, and with respect to specific claimants. There was also later testimony by a retained outside litigation lawyers about settlement of cases in general and specific cases. I think all of that requires that the information not be sealed that Garlock's reason for settling cases is an issue. Garlock put it at issue. Now my conclusion from reading these documents is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 substantially different than what's been asserted they show by the ACC. But I think that the public is entitled to see them and make up its own mind about those things. And for that reason I will deny the motion to seal the documents claimed by -- asserted by Garlock. I think that brings us to talking about how do we do all of this. I believe that whatever we do will take long enough to give all of you all time to perfect appeals and get any of my madness straightened out if you want to try to do it. So I won't worry too much about staying things so that you can appeal. My belief is that whatever we do, we should unseal things at one time and not piecemeal. While I know certain parties don't want to wait any longer than they have to, I think that if we get things piecemeal, we would have a real problem with keeping track of what they've done. And perhaps more inadvertent disclosures than are necessary, so I would like to do it all at once. And do you all want to talk about this beforehand? I don't know if you all have discussed Mr. Cassada's proposal beforehand or not, but it sounds like a reasonable way to me, and there may be others. MR. SWETT: I would love to discuss it. It sounded very constructive. And the protocol order requires that stuff that is not to be redacted or sealed come forth promptly. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 take it you're not talking about that when you speak of, "all at once." That the -- that what is to be redacted, should be redacted in its entirety, and that set of materials should come forth at one time. But to the extent sealing or redaction has been denied, it would seem to be no reason to wait. THE COURT: I'm not sure what the difference is in what you just said. MR. CASSADA: I think it would be constructive for us to talk about it. THE COURT: Yeah. Do you want to talk about it and come back after lunch, or talk about it over the weekend or just what? MR. SWETT: I'm here. Might as well get as far as we can today. MR. CASSADA: I'm available. MS. JOHNSTON: Same. Like to do it today. THE COURT: Why don't we let everybody who wants to talk about it. I think this room is free. And do you want to come back at 1:00? MR. SWETT: That will be fine. MR. CASSADA: Okay. THE COURT: Okay. Let's do that. We'll just reconvene at 1:00 and see where we are, okay? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 MR. SWETT: Your Honor, I believe Mr. Miller and Mr. Clodfelter and I would also like a little time with you in chambers to discuss the schedule with regard to tomorrow's matters. THE COURT: Yeah, I understood you all are talking about that. MR. SWETT: So at any point convenient to you. THE COURT: Do you want to do that now, or are you ready? MR. CLODFELTER: Your Honor, I'm happy to discuss it now. It doesn't need to be on the record or in chambers, it doesn't really matter. MR. SWETT: Your Honor, when we had suggested tomorrow's date as the time to argue the motion for the appointment of fee examiner and the Caplin and Drysdale fee application, the information based upon communications from the Court was that you would not be sitting today. So it was not our intention to back you into two back to back hearings with a lot of briefing. We would like to ensure that tomorrow's matters are heard when you have had plenty of time to read the briefs. And if you've had that time, that's terrific. Otherwise we're amenable to rescheduling in the near term, assuming Mr. Clodfelter's and Mr. Miller's schedules will permit, and Your Honor's of course. Now, the other side has suggested that you should 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 hold back on ruling with respect to fees and the motion to reopen. And I just want to take exception to that notion for the following reasons: The motion to reopen is a large important effort that has a lot to do with ensuring that however this case ultimately comes out, it is both fair and perceived to be fair. It is not a project that was undertaken on a contingent fee basis in any sense other than that fees charged to a bankruptcy estate or subject to the fee application process, including the final fee application. It does not differ in character from many times when the debtors have, in effect, renewed their pitch on issues that you have decided in the first instance. For example, the waiver issue that we just heard about, or so much of the discovery in the estimation process where the early going we tended to win those motions, and they came back, shifted ground, and argued again. And ultimately they got the discovery that they got. The nature of the case, the length of the project, the importance of the matter, all suggest to me that it wouldn't be appropriate or fair to hold off on the interim fee application because of the presence of fees regarding the motion to reopen, or to carve them out for separate treatment. So I'm hoping to go forward with both the fee examiner motion and the interim fee application at one in the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 same time, either tomorrow or at some other time convenient to you and opposing counsel in the near term. But I just wanted to underscore that I don't believe it would be appropriate to have to carve out that Mr. Miller has suggested -- and I bring that up in a scheduling context, because I understand that that had some impact on your thinking. THE COURT: Actually, it was a thought that occurred to me as well, just simply because of the valuation standards. At any rate that's neither here nor there. That -- like a lot of things, my brain's like Grand Central Station, there's trains coming and going all the time, but that doesn't mean I have to get on every one of them. Maybe that's one of them I shouldn't get on. But I do think it probably be a good idea to put it off to another date, and just because of the logistical problems of properly preparing for it. MR. SWETT: Do you have any dates in mind, Judge, or should we communicate with your secretary? THE COURT: I can -- what do you have any particular constraints? MR. SWETT: Well, we have a couple hearings scheduled for next week. Since I'll be here, assuming other counsel's availability, we can do it then. MR. CLODFELTER: Your Honor, we had cleared the date 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 tomorrow with some considerable difficulty. This was originally scheduled for fee examiner motion for September 18th and the Court decided to continue it at that time, and we were put to a difficult task of finding alternative date. Tomorrow was actually the only substitute we could find before the end of the month. So I'm concerned that we probably can't find a date before the beginning of November. I know, also, that the bankruptcy administrator is not available in the near term, and she does have a position on fee examiner motion that we would like to be sure is presented to the court. The fee examiner -- the proposed fee examiner that we've offered, the former U.S. Trustee Division Four, is also not available in the next week due to some family things. So I think if we're going to reschedule from tomorrow on the fee examiner motion, that would need to be at the earliest, first week of November. Based upon the determination we already made about alternative dates for the month of October. THE COURT: We could do it the first Thursday in November. MR. CLODFELTER: Your Honor, that is acceptable to me, if it is to Mr. Swett and Mr. Miller. I would like to consult, again, make sure the Bankruptcy Administrator is available on that day. Although I don't think it is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 absolutely essential, it would be preferable if the proposed fee examiner were available. We would like to have him available. I don't think it's essential though. If the Court wanted to establish that date for hearing, we would proceed even if we were not available. MR. SWETT: I just have to check my calendar. It sounds okay to me. THE COURT: It's something like the 7th, maybe? MR. SWETT: Yes, Your Honor. MR. MILLER: Yes, Your Honor. THE COURT: The 6th. The 6th. It would be November 6th, I think, wouldn't it? MR. MILLER: And that works fine for me, Your Honor. THE COURT: Okay. MR. SWETT: We can check -- MR. CLODFELTER: Your Honor, both the 12th interim application and the fee examiner motion, would both be contingent that day so we would not have them out of sync; is that correct? MR. SWETT: That was my contention. THE COURT: Okay. Well you all look at that and we'll come back at 1:00 and see where we are. (The matter is concluded at 11:41 a.m.) 1:04 p.m. THE COURT: All right. Were you all able to make 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 any progress? MR. CASSADA: Yes, Your Honor. We conferred and I believe we have an agreement that we will include in the order on the public access issues that you've announced earlier today. I'm going to recite my understanding of the ruling. THE COURT: Okay. MR. CASSADA: I'm relatively certain that I won't get it completely right and I'll rely on the parties in the room to correct, clarify or amplify what I have to say. First, Your Honor, there is agreement on the fundamental procedure that I had announced at the beginning of the hearing. I'm going to repeat that in pertinent part, just for purposes of clarification. But we -- the debtors will engage Worldwide Digital to undertake the review process, and with an exception I'll mention later, we would intend for that company to review the entire record. We will commence promptly to provide a sample of record materials for review and redaction training under the debtor's supervision with Caplin's participation -- with the Caplin and Drysdale firm participation -- asking Worldwide Digital to apply the Court's redaction rules. We'll review, correct, and comment during that process which we think will be sufficient to prepare for Worldwide Digital to review the broader record. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 And then the company will undertake the assignment of reviewing the estimation record, and making the required redactions, periodically providing the record review to date to the debtors. We'll share that with Caplin and Drysdale. And than each of us will make review random -- review random samples of materials reviewed by Worldwide Digital for quality control purposes. And that's the way we'll proceed. At the end of the day we'll have the record and we'll provide it to the Court in a form where we think the Court can easily provide it to parties, members of the public who ask for access. Now we talk about a number of clarifications and details on that basic procedure and I'll go over those now. First, we did agree to begin the training process promptly. And we expect we'll be able to do that early next week. We're going to review the entire record at once, and produce it at once, with one exception that I'll bring up in a moment. We did agree that while Worldwide Digital will presumptively review the record, there are things that we might except from that. There's one of them we know for certain today, and that's the two claims databases, the Garlock database and the Garlock analytical database. We think that we're better equipped to review that between the estimation parties and their professionals, and get that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 reviewed accurately and easily, more so than Worldwide Digital. So we'll accept that. And it could be that when we're first undertaking this process, we might find other materials that we believe are better suited to be reviewed by the professionals in the case, and those materials will be subject to agreement by the committee and the debtors. And absent an agreement, they'll be reviewed by Worldwide Digital. The exception to reviewing and producing the entire record at once is that if there are appeals, and if in connection with appeals or any appeal, there's a stay pending appeal, then we've agreed that we will accept those documents from the review process, and go ahead and review the documents that are not subject to appeal. We will save for another day what happens to documents subject to appeal. Presumably there might be an appeal taken and a motion for stay pending appeal, and then the parties can argue then how those documents should be treated during any appeal when we have clear instructions from the -- from this side of the room, the public access parties, that they don't want it to be implied that they're agreeing to a stay at this point, or that they're waiving any argument whatsoever about whether a stay should be granted and what should happen during the stay. We've agreed that in connection with the quality control process, and I guess you'd say the process in general, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 that the parties will act diligently, and taking due care to promptly to make sure that this process goes forward and that the public is given access to the record as soon as reasonably possible. Finally, we've agreed that there are documents relative to the motion to reopen that can be handled separately from this process. Because the anticipation is that if there is an appeal or appeals, they could last some time, and that the motion to reopen ought to go ahead and be heard sometime in the reasonable near future. So we're going to deal separately with that. We're going to, each of us, look at our pleadings and briefs and exchange those, and make sure that we redact from those anything that we think is subject to the Court's order. I don't expect there's much of that at all in the briefs. There are some materials that have been produced in connection with that, and we'll put those through the review process promptly so that those can be made available for use on appeal. And finally, just procedure from the Committee's point of view, is subject to hearing back on whether the debtors intend to appeal, given the debtor's motion to seal. I'm advised that my reasonable expectation is that it's not likely that there will be an appeal. We'll find out promptly -- I think I'll know today -- and we'll let the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 parties know about that. And if that's the case, then this is the way we plan it, we'll go forward. THE COURT: All right. Okay. Everybody all right with all of that? MR. SWETT: Yes, sir. THE COURT: Sounds like a good plan to me. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
UPDATE With Voluntary Withdrawal of Complaint by Keenan in Re CES NOM To Intervene With Exhibits and MOL USDC SDNY 11-Cv-8500 - and - Proposed - Supplement With May 30 2012 Hearing Transcript