Opinion
No. FA 03-0481765S
March 9, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S POSTJUDGMENT MOTION FOR RESTRAINING ORDER
The plaintiff seeks enforcement of a confidentiality agreement between the parties and the corresponding protective order on November 3, 2003, while the defendant claims that agreement was nullified by their later separation agreement incorporated into the dissolution judgment on September 8, 2004. For the reasons discussed below, the plaintiff's motion for a postjudgment restraining order is granted.
The plaintiff brought the underlying action to dissolve the parties' marriage with a return date of September 23, 2003. On November 3, 2003, the parties entered into a "Confidentiality Agreement" addressing production of discovery material and dissemination "of any information related to this litigation or . . . obtained during pretrial discovery . . ." Paragraph 14 of that agreement stated that both parties "fully understand that the plaintiff and his business interests may be severely harmed by the public dissemination of defamatory or disparaging information related to the parties. Accordingly, neither of the parties . . . shall disseminate or cause to be disseminated to the public or press any such disparaging or defamatory information." Paragraph 18 of the agreement provided that "[t]he terms of this Agreement shall survive the entry of judgment in the dissolution of marriage action or the settlement or withdrawal of the dissolution action." The court, Kenefick, J., that day approved the Confidentiality Agreement and made it a court order, contained in the court file as document number 141.
The marriage of the patties was dissolved after an uncontested hearing on September 8, 2004. The judgment of dissolution incorporated a written separation agreement of the parties. One of the prefatory recitals of that agreement stated as follows: CT Page 4802
WHEREAS, it is the intention and desire of the parties that there be a complete, final and effective settlement of their respective rights and holdings, and that provision be made for the support of the Wife and minor children, custody and visitation of the minor children, as well as relinquishment of all rights, interest and claims, which one party might have upon the party of the other;
Separate articles of the separation agreement addressed custody (Article II), alimony (Article III), child support (Article IV), property distribution (Article V, captioned "real property," Article VI, captioned "lump sum property settlement," Article VII, captioned "certain tangible personal property," and Article VIII, captioned "other property"), counsel and counsel fees (Articles IX and XIII), medical expenses and benefits (Article X), taxes (Article XI), and debts (Article XII). Article XIV contained mutual releases; Article XV provided that the Agreement was to be binding and either party could submit it to the court for incorporation in a dissolution decree; and Article XVI contained the parties' agreement to sign necessary "after-documents" to effectuate the agreement. Paragraph 17.2 of Article XVII, captioned "miscellaneous provisions," contained the following language that is the subject of this proceeding:
The Husband and Wife have incorporated into this Agreement their entire understanding and no oral statement or prior written matter extrinsic to this Agreement shall have any force or effect . . . This Agreement supercedes any and all prior agreements between the Husband and Wife.
On December 1, 2005, the plaintiff, alleging that he had received information that the defendant was planning to appear on "20/20," a nationally-broadcast television show, to discuss her relationship with the plaintiff, their marriage and pending custody litigation, filed the pending motion. The plaintiff's motion requested an ex parte order, pending hearing on the motion, on the grounds that the defendant's appearance on that television show would violate the confidentiality agreement and cause irreparable harm to the plaintiff, his business, and the parties' minor child. The court, Dewey, J., that day ordered the defendant to cease and desist from disseminating any information whatsoever to the media or to any other person pertaining to the plaintiff or to this litigation and from appearing on television for such purposes. The court also ordered that if the defendant had already recorded such an interview she was to obtain all copies of the interview and prevent the broadcast of the interview. The ex parte order provided that it would remain in effect until the following day at 9:30 a.m., when the motion was scheduled for hearing. Because the courthouse was evacuated the next day after a bomb threat, the court was unable to hear the parties then, and the matter was rescheduled for the following week.
Plaintiff's counsel, defendant, defendant's counsel, and counsel for the minor child all appeared before this court on December 5 and 7, 2005, for hearing on the motion. The parties agreed that the December 1 ex parte order would remain in effect until further order of the court, and the court so ordered. The plaintiff called the defendant and Mark A. Harrison, a certified public accountant, as witnesses at the hearing; and the defendant called no witnesses. In response to questions from plaintiff's counsel, her own attorney, and counsel for the minor child, the defendant testified about recent contacts she had with representatives of the media. Harrison testified about the plaintiff's business affairs and the effect of the defendant's recent communications with the media.
Although plaintiff also filed a postjudgment motion for contempt claiming that the defendant has violated the terms of the confidentiality agreement, the parties agreed on the first day of hearing before this court that the court would initially consider only the legal question of whether the confidentiality agreement was still in effect.
Although the defendant's attorney asked her questions about the circumstances under which she signed the confidentiality and separation agreements and her intent in doing so, after relevance objections from the plaintiff her attorney withdrew those questions:
Q. What was your understanding of why you executed the . . . confidentiality agreement?
MS. WELTY: Objection, relevance.
. . .
MR. SHANAHAN: Your Honor, we'll withdraw the question.
. . .
Q. Ms. Perricone, when you signed this document, what was your understanding of the duration or the amount of time that you were bound by this agreement?
MS WELTY: Your Honor, I object. Her state of mind is irrelevant.
MR. SHANAHAN: I'll withdraw the question for the time being.
Q. Ms. Perricone, do you believe you were bound by the terms of the confidentiality agreement as you sit here today to testify?
A. No, I don't.
MS. WELTY: Objection, relevance.
MR SHANAHAN: I'll withdraw the question.
Q. Ms. Perricone, I draw your attention to page 18, paragraph 17.2 [of the separation agreement]. I ask that you review that particular provision of this agreement.
. . .
Q. Why did you do that?
MS. WELTY: Objection, same objection, your Honor, as to the intent of the parties at the time.
THE COURT: What's your claim, Mr. Shanahan?
MR. SHANAHAN: I'll withdraw the question. Transcript of proceedings, 12/5/2005, p. 46-54.
The evidence showed that the plaintiff owns a "closely-held private company that sells, manufactures, and distributes anti-aging skin care products as well as nutritional supplements." (Transcript of proceedings, 12/7/2005, at 54.) The success of his business is dependent on and closely connected with his "reputation, credibility and celebrity status." Id., 57. On December 4, 2005, the New York Post published an article that was the result of interviews with the defendant and documents and information that she had recently provided to that newspaper. Portions of that article portrayed each of the parties in a negative light, as exemplified its first sentence, which identified the plaintiff as an "anti-aging guru . . . accused of being a cheat who has fits of rage and used human growth hormone" and referred to the defendant as "a manic clean freak who washed her daughter's skin raw." The next day, the Today Show televised a segment as a result of the New York Post article. At the time the article was published and the Today Show was broadcast, the plaintiff was on a public broadcasting tour appearing on local public television stations, one of which cancelled his television appearance as a direct result of the New York Post article and the Today Show segment.
At the conclusion of the hearing on December 7, 2005, this court requested supplemental briefing concerning "the effect of subsequent contracts on prior confidentiality agreements and protective orders." ( Id., 123.) Although both parties filed those briefs on December 16, the court was not informed that defendant's brief had been filed until mid-January. The court has carefully considered all the evidence presented at the hearing before it, as well as the arguments and briefs from both sides. The matter is now ready for decision.
The issue before the court is whether the parties' separation agreement incorporated into the dissolution judgment nullifies their earlier confidentiality agreement and the corresponding protective order. "Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts." Kremenitzer v. Kremenitzer, 81 Conn.App. 135, 139, 838 A.2d 1026 (2004).
A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . .
(Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).
The language in paragraph 17.2 of the separation agreement that the parties had "incorporated" into that agreement "their entire understanding," that "no oral statement or prior written matter extrinsic to this Agreement shall have any force or effect," and that "[t]his Agreement supercedes any and all prior agreements between the Husband and Wife" is terminology commonly referred to as a merger clause. The defendant argues that the language of the separation agreement and the inclusion of a merger clause show that the parties intended to create a completely integrated agreement extinguishing all prior agreements. The defendant's position rests on the "general principle" of contract law recognized in Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 503, "that the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence." As that court further noted, a merger clause "is likely to conclude the issue [of] whether the agreement is completely integrated." Id, 504.
The plaintiff on the other hand, argues that the bar against extrinsic evidence does not preclude enforcement of prior agreements that are collateral to an integrated agreement and which are not inconsistent with and do not vary or contradict the express or implied terms or obligations of the integrated agreement. His argument relies on one of the "exceptions" recognized in Tallmadge Brothers to the rule barring consideration of evidence outside the four corners of an integrated agreement containing a merger clause:
For example, extrinsic evidence may be admissible: (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in [a] writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.
Id., 503, fn. 14. Thus, in Alstom Power, Inc. v. Balcke-Durr, Inc. 269 Conn. 599, 849 A.2d 804 (2004), the court upheld the trial court's decision to exclude parol evidence of the parties' conduct concerning the date when a contract had been formed because "there was no ambiguity as to the effective date of the contract . . ." Id., 608. In TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288-89, 589 A.2d 329 (1991), the court up-held consideration of parol evidence because an integrated contract had been ambiguous. All three of these cases track the long-recognized rule on parol evidence:
The parol evidence rule does not of itself therefore, forbid the presentation of "parol evidence," that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.
(Quotation marks omitted.) Id., 288-89, 589 A.2d 329 (1991).
In Benvenuti Oil Co. v. Foss Consultants, Inc., 64 Conn.App. 723, 728, 781 A.2d 435 (2001), the Appellate Court, citing Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 504-05, 746 A.2d 1277 (2000), described the "essence" of the parol evidence rule as follows:
a merger clause inserted into an agreement establishes conclusive proof of the parties' intent to create a completely integrated contract, and the court is forbidden from considering extrinsic evidence on the matter unless there was unequal bargaining power between the parties. In Tallmadge Bros., Inc., the parties inserted merger clauses into their settlement agreements, which the defendant contended precluded the plaintiff from introducing parol evidence. At a hearing, the trial court examined extrinsic evidence to determine whether the agreements were complete integrations. Because the parties had positions of relatively equal bargaining power, our Supreme Court held that "the parties' insertion of the merger clauses into the settlement agreements is conclusive evidence of their intent to create fully integrated contracts, and that the trial court's subsequent consideration of extrinsic evidence was improper."
The Benvenuti court acknowledged that the Tallmadge court "also noted other circumstances under which the rule would not apply. They are circumstances involving fraud, duress or contracts that contravene public policy." Benvenuti Oil Co. v. Foss Consultants, Inc., supra, 64 Conn.App. 729, fn. 4.
This court does not perceive the Benvenuti decision as inconsistent with the Supreme Court's holdings in Tallmadge and other cases that a court may consider extrinsic evidence of agreements pertaining to collateral issues, an issue not raised or addressed in Benvenuti. Rather, the issue in Benvenuti was whether a party could introduce extrinsic evidence to vary the terms of an integrated contract. Both the Supreme Court and Appellate Court have since acknowledged the continuing validity of the principle that parties may introduce extrinsic evidence to establish collateral agreements. See, e.g., Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 610, 849 A.2d 804 (2004); Miller v. Guimaraes, 78 Conn.App. 760, 770, 829 A.2d 422 (2003). Although Connecticut cases sometimes describe this exception as admissible to prove collateral oral agreements, Connecticut courts recognize the formulation on the parol evidence rule and its exceptions in the Restatement (Second) of Contracts as authoritative; see, e.g., Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 288, and TIE Communications, Inc. v. Kopp, supra, 218 Conn. 288 (both citing 2 Restatement (Second), Contracts § 213, quoted in the text above); and the Restatement (Second) does not require collateral agreements beyond the scope of an integrated contract to be oral in order to be effective.
The exceptions to the rule barring extrinsic evidence noted by our Supreme Court in Tallmadge, TIE and subsequent cases; e.g., Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 780-81, 653 A.2d 122 (1995); are in accord with the modern parol evidence rule set forth in the Restatement (Second) of Contracts:
Effect Of Integrated Agreement On Prior Agreements (Parol Evidence Rule)
(1) A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them.
(2) A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope.
2 Restatement (Second), Contracts § 213 (1981). Comment (c) to § 213 notes that
there may still be a separate agreement between the same parties which is not affected [by an integrated agreement]. To apply the rule of Subsection (2) the court in addition to determining that there is an integrated agreement and that it is completely integrated, must determine that the asserted prior agreement is within the scope of the integrated agreement. Those determinations are made in accordance with all relevant evidence, and require interpretation both of the integrated agreement and of the prior agreement.
Similarly, our Supreme Court has held that "in order for a parol agreement to be collateral to a written agreement, the governing question is `whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing.'" Merritt-Chapman Scott Corp. v. Mauro, 171 Conn. 177, 194, 368 A.2d 44 (1976), citing 4 Williston, Contracts (3d Ed. Jaeger) 639, p. 1049, quoting 9 Wigmore, Evidence (3d Ed.) 2430, p. 99.
Paragraph twelve of the confidentiality agreement states that it "restricts the communication and use of `discovery material' and `confidential discovery material' shall continue to be binding throughout and after the conclusion of the divorce and any related legal action, including all appeals." Paragraph 13 prohibits "[d]isclosure to the press or public of any information related to this litigation or of any information obtained during pretrial discovery in the present matter, including, but not limited, to the "discovery material" and confidential discovery material." Paragraph 14 of the confidentiality agreement states that "the parties to this action fully understand that the plaintiff and his business interests may be severely harmed by the public dissemination of defamatory or disparaging information related to the parties." The parties accordingly agreed not to "disseminate or cause to be disseminated to the public and the press any such disparaging or defamatory information." In the hearing on the present motion, the plaintiff put on evidence establishing that public dissemination of negative information about him would have extremely detrimental impact on his business affairs and financial success and that negative publicity about the plaintiff resulting from the newspaper article in the New York Post and the subsequent televised segment on the Today Show had already begun to have such an effect.
Paragraph four of the confidentiality agreement defines the term "confidential discovery material" as "any and all trade secrets, confidential research, development or commercial information which may be disclosed in the above entitled action by any of the same parties and entities above specified."
It is true, as defendant asserts, that "[p]arties are not forever locked into the terms of a contract and may execute a substitute agreement which totally supercedes the terms of the original agreement." (Def.'s Mem. of Law in Opposition to Pl.'s Motion for Restraining Order and Permanent Injunction Post Judgment, December 16, 2005, at 4.) Even when parties stipulate to an agreement, they remain free in the future to contract for different terms. The confidentiality agreement specifically gave the parties the right to seek a modification of that agreement in the future. The possibility of future modification of the confidentiality agreement, however, does not mean that in fact the parties agreed to do so. The court must apply the rules of contract law set forth by our appellate courts and other authorities to ascertain whether the parties intended to do so.
Neither the subject matter nor terms of the confidentiality agreement are in any way inconsistent with, vary from, or contradict the express or implied terms or obligations of the separation agreement. The language and subject matter of the two agreements relate to completely separate obligations and interests. The parties clearly stated their intent — to prevent disclosure of potentially disparaging information that could damage the plaintiff's business interests — in the confidentiality agreement with respect to the scope of the matters covered in that agreement. They did so similarly in the separation agreement. The separation agreement deals only with custody, alimony, support, and other financial orders. The separation agreement contains no reference to the confidentiality agreement, its subject matter, or the effect on the plaintiff's financial affairs of public release of information that might be deemed disparaging of him. The prefatory "whereas" clause in the separation agreement shows that the parties' intent in that agreement was to address support for the defendant and the parties' child, custody and visitation, and allocation of property. Jackson v. Jackson, 178 Conn. 42, 50, 420 A.2d 893 (1979). In view of the purposes and intent of the separation agreement and the parties' agreement in the confidentiality agreement that it would survive the judgment of dissolution, the terms in the confidentiality agreement might naturally have been omitted from the later separation agreement. Since, as the parties stipulated in their confidentiality agreement, public disclosure of disparaging information may severely harm the plaintiff's business interests, an effect confirmed and proven at the hearing before this court, moreover, it is inconceivable that the parties would have omitted specific reference to the confidentiality agreement or its terms if they had intended for the separation agreement to govern the matters dealt with in the confidentiality agreement.
During postjudgment proceedings that resulted in modification of the custody order, the parties entered into another confidentiality agreement, dated May 25, 2005, and approved by the court, Munro, J., on June 6, 2005. The defendant asserts that the parties' execution of the second confidentiality agreement shows that the parties believed their earlier such agreement was no longer in effect: "if the November 3, 2003, Agreement had continued in effect, the subsequent 2005 Agreement would be unnecessary." (Def's Opposition to Pl.'s Motion for Restraining Order and Permanent Injunction Post Judgment, December 2, 2005, at 4.) Taking judicial notice of the contents of the court file, the court has reviewed the substance of that confidentiality agreement and protective order, document number 304 in the court file. It addressed "disclosure and production of records produced in response to a Subpoena Duces Tecum dated May 16, 2005." The prefatory recitals to the second agreement note that the subpoenaed records "pertain to financial matters of third parties" and that the "plaintiff is desirous of protecting the personal privacy of his employees and business associates." The exact nature of the documents and materials subpoenaed from those third persons was not put into evidence in the proceeding before this court. The first confidentiality agreement applied only to discovery materials provided by the parties "in connection with the proceedings in the dissolution of marriage action captioned above" and permitted the use of such discovery material "only for the purpose of the pending dissolution of marriage action." Although there was language in the earlier agreement suggesting broader applicability, the parties might legitimately have been concerned, based on the language of the 2003 Agreement, that it was ambiguous as to whether it would apply to materials produced by third patties in postjudgment custody litigation. The court thus concludes that the 2005 confidentiality agreement does not, on the evidence offered, show that the 2003 confidentiality agreement and protective order were no longer in effect.
The language of a dissenting opinion many years ago aptly describes the ultimate issue before this court in terms of whether the parties intended their separation agreement to nullify their earlier confidentiality agreement:
[W]hen patties have merged all prior negotiations and agreements in a writing, intending to make it the repository of their final understanding, evidence of those prior negotiations and agreements will not be received. The fundamental question is one of the intent of the parties. Did they intend to make the writing the repository of their final understanding on the particular matter as to which parol evidence is offered? If so, the evidence must be excluded. If, however, it appears that the parties intended to restrict the writing to specific subjects of negotiation, then agreements concerning other subjects may be proven even though those agreements differ from the writing.
Greenwich Plumbing Heating Co. v. A. Barbaresi Son, Inc., 147 Conn. 580, 586, 164 A.2d 405 (1960) (Shea, J, dissenting). The court has here carefully reviewed the language and subject matter of both agreements and all the evidence offered to it, all of which persuades the court that the parties did not intend for their separation agreement to nullify the confidentiality agreement. The substantive terms of the two agreements covered two distinct areas of the parties' rights and interests. Nothing in the separation agreement shows any intent on the part of the parties to address the subjects governed by the confidentiality agreement. The language of the separation agreement itself shows instead the parties' intent to restrict that agreement to the specific items addressed therein. The court thus concludes that the separation agreement did not discharge the earlier confidentiality agreement, which was not within the scope of the separation agreement.
The merger clause in the separation agreement, moreover, addressed, by its own terms, only prior agreements, not prior court orders. Although the separation agreement stated that it superceded all prior agreements, neither that agreement nor the dissolution judgment incorporating that agreement addressed or purported to supercede the prior protective order of November 3, 2003. The protective order, by its own terms, survived the judgment of dissolution. Had the parties intended to nullify their confidentiality agreement, they would have had to obtain a judicial order vacating the protective order incorporating that agreement. The omission of any reference in the separation agreement incorporated into the judgment of dissolution to the earlier protective order not only buttresses this court's conclusion that the parties did not intend their separation agreement to nullify the confidentiality agreement, but also provides a separate basis for granting the plaintiff's present motion.
Although it may commonly be said that "[p]endente lite orders do not survive the entry or rendition of judgment" of dissolution, that rule does not apply to the protective order of November 3, 2003. Certain subjects ultimately governed by a dissolution decree, such as support for spouse and child, possession of property, use of assets, etc. — may need to be addressed while a dissolution action is pending, but the dissolution judgment is necessarily the final order on those matters. Such orders are commonly referred to as "pendente lite orders," which "necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time." (Emphasis added.) Connolly v. Connolly, 191 Conn. 468, 479, 464 A.2d 837 (1983). Pendente lite alimony and support orders, for example, "provide support for a spouse the court determines requires financial assistance, and for any dependent children, until the court makes a final determination of the issues." Fricke v. Fricke, Superior Court, Judicial District of Danbury, Docket No. 296758 (February 10, 1993, Moraghan, J.).
The purpose of the confidentiality agreement and the protective order incorporating it, on the other hand, did not expire at the time of the separation agreement and judgment of dissolution; indeed, as the evidence offered before this court showed, plaintiff's interests remain subject today to the very harm which that agreement and the protective order sought to prevent. The language of the agreement and order shows that the parties and the court intended the protective order to survive the dissolution judgment, and the protective order expressly so provided. The protective order of November 3, 2003, was thus completely different from those orders commonly referred to as pendente lite, the need for which and whose purpose end with and thus merge into the judgment. Unlike pendente lite orders for support or temporary possession of the family home, the need for a protective order may well survive the judgment, as the evidence here has shown. Nothing in our law prevents parties in a dissolution action from obtaining protective orders that will survive the dissolution judgment. The protective order here, to which there is no reference in the separation agreement or dissolution judgment, remains, by its own terms, an order of the court by which the parties are bound.
In the defendant's initial brief, Opposition to Motion for Restraining Order and Permanent Injunction Postjudgment, she also argues that an order enjoining her from communicating with the press or restricting her right to speak about this case abridges her constitutionally-protected rights of freedom of the speech and freedom of the press under the first amendment to the United States Constitution. Although the Confidentiality Agreement and protective order restrict public disclosure by the parties of information or documents they obtained in pretrial discovery, "there is no first amendment right of access to materials derived solely from pretrial discovery." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 77 Conn.App. 690, 723-24, 825 A.2d 153 (2003), reversed on other grounds 276 Conn. 168, 884 A.2d 981 (2005). In Welch v. Welch, 48 Conn.Sup. 19, 828 A.2d 707 (2003), the court thus rejected a first amendment objection and granted a spouse's motion to prohibit disclosure of information obtained in discovery. None of the four cases cited by defendant here in her brief supports the proposition that parties may not waive their constitutional rights and agree to impose on themselves certain restrictions of those rights or that a court may not enter an order adopting those restrictions. There are no orders in this case that limit access of the public to the court file, to exhibits entered into evidence, or to courtroom proceedings. The Confidentiality Agreement and corresponding protective order impose restrictions on the parties and their agents, not on public access to the court's own records. The court finds no merit in the defendant's claim that the parties cannot, by contract, waive their first amendment rights.
ORDER
The defendant, her agents, attorneys, representatives, and any persons acting on her behalf are hereby ordered to cease and desist
A. From disseminating to time media or to any person, other than to her counsel in this litigation or to others duly authorized by the Confidentiality Agreement, the protective order, or further court order (i) any information pertaining to the dissolution action between the parties or to postjudgment proceedings between them, (ii) any "discovery material" or confidential discovery material," as those terms are defined in the confidentiality agreement and protective order of November 3, 2003, or (iii) any derogatory or defamatory information about the parties; and
B. From appearing on radio or television for such purposes.
If defendant or her agents or others acting on her behalf have already engaged in conduct prohibited by this order, the Confidentiality Agreement, or the protective order, the court orders her to use her best efforts (i) to obtain all copies of any such interviews and return of any materials she or her agents have provided to others in violation of the Confidentiality Agreement or protective order and (ii) to prevent broadcast or publication of any such interview or public dissemination of such materials.
SO ORDERED.