Opinion
Master File, 00 Civ. 0648 (LAK), 00 Civ. 6322 (LAK), and consolidated cases
June 19, 2001
ORDER
By letter dated June 11, 2001, counsel for A. Alfred Taubman, a defendant in many of these now resolved civil cases and in the yet unresolved criminal case, United States v. Taubman, 01 Crim. 0429 (GBD), applied for leave to make a motion to modify the confidentiality order to allow Taubman to use certain information designated as Confidential thereunder in the criminal case, removing Christies' confidentiality designations with respect to certain documents, and referring all questions regarding interpretation and enforcement of the Confidentiality order that may arise in the criminal case to Judge Daniels. As both sides have extensively argued these issues in letters to the Court, Taubman's letter will be treated as a motion for the relief indicated and, in all respects save one, decided on the basis of the submissions. Should either side wish to bring on a formal motion, it is at liberty to do so.
The nub of the dispute appears to be that Taubman obtained from Christie's during the course of the civil litigation — and based upon the existence of the Confidentiality order — certain material that he wishes to use in the criminal case. With the exception of a few allegedly privileged documents said to have been produced to Taubman by mistake (and which are the subject of a separate application), the government already has all of the documents in question. Accordingly, Taubman could benefit from the grant of the present application only if the documents he seeks are not discoverable from the government in the criminal case, whether under Fed.R.Crim.P. 16(a)(1)(C), Brady, Giglio, the Jencks Act, or otherwise. Seen in this light, so much of the application as seeks to modify the order to permit use of Confidential materials in the criminal case will be denied. There simply is no reason to permit Taubman to circumvent the limitations on the discovery available in criminal cases.
The second branch of Taubman's application seeks a determination that six specific categories of documents produced and designated as Confidential by Christie's in the civil litigation were improperly so designated. While Christie's contends that the challenge to the Confidential designations comes too late in view of the resolution of the civil cases, it is mistaken. Confidentiality orders of the sort involved here are designed to spare courts and parties receiving access to allegedly sensitive information the burden of litigating the existence of good cause for secrecy on a document by document basis unless a real reason arises to do so, thus facilitating the discovery process and reducing the cost of litigation. See, e.g., Decarlo v. Archie Comic Publications, Inc., No. 00 Civ. 2344 (LAK), 2000 WL 781863, *1 (S.D.N Y Jun 20, 2000); Greater Miami Baseball Club, L.P. v. Selig, 955 F. Supp. 37, 39 (S.D.N.Y. 1997); Lachica v. City of New York, No. 94 Civ. 7379 (LAK), 1995 WL 77928 (S.D.N.Y. Feb. 23, 1995). To hold that Taubman is barred from challenging the Confidential designations because the actions have been settled, in the absence of any express requirement of an earlier challenge, would be to undermine this important objective by creating an incentive to challenge such designations in advance of any real need to do so simply to protect the potential future availability of public disclosure of the documents in question. Moreover, the fact that the parties stipulated that the information in question would be used solely for purposes of the civil cases does not indicate a contrary result in view of the reservation of the right to seek modification of that aspect of the order. In consequence, the Court holds that Taubman's challenge to the designation of these documents as Confidential is not time barred.
In order to justify the designation of these documents as Confidential, Christie's is obliged to demonstrate that there is good cause to withhold them from the public record. But it has not submitted the documents for review nor otherwise made an showing of good cause, although it perhaps did not put its best foot forward in the expectation of making a formal motion. Accordingly, it will be allowed to make a further showing.
Taubman has submitted copies of four documents that Christie's claims are privileged but were produced inadvertently.
As for Taubman's final request, this Court as a matter of policy does not automatically assign related civil and criminal cases to the same judge although that sometimes occurs serendipitously. This inevitably carries with it the possibility that the judge to whom civil cases are assigned may take actions that relate to a related criminal case and vice versa. Taubman has shown no real reason why the Court should alter that situation for this case alone by transferring responsibility for administration of the confidentiality order in whole or in part to Judge Daniels.
Accordingly, Taubman's motion is denied in all respects save that the Court reserves decision as to whether the documents listed in paragraph 2(a) through (f) of Exhibit B to Mr. Muller's letter of June 11, 2001 pending the submission, on or before June 26, 2001, by Christie's of any further submission it cares to make by way of seeking to establish good cause for retaining those documents in confidence. Further, both sides are advised that the Court will place their letters of June 11, 2001 and June 13, 2001 on the public record on June 27, 2001 unless good cause is shown by that date to file them under seal.
SO ORDERED.