Opinion
02-CV-6624 (DLI).
October 2, 2008
MEMORANDUM AND ORDER
In reviewing a draft of the transcript of the proceeding held on September 19, 2008, the Court discovered a significant error in one of its citations to caselaw involving motions to modify confidentiality orders. Specifically, the Court erroneously cited the Eleventh Circuit's decision in Brown v. Advantage Engineering, 960 F.2d 1013 (11th Cir. 1992), for the proposition that that court saw no reason to allow a third party to intervene in order to obtain sealed documents that would make it "easier [for the non-party movant] to prevail in its own civil lawsuit" against the same defendant. However, this Court was not citing to the majority decision in Brown, but rather the dissenting opinion in that case. See id. at 1018 (Edmondson, J., dissenting).
The draft transcript has been corrected to reflect that the quotation is from the dissenting opinion.
In view of that error, this Court has sua sponte reconsidered its ruling denying the application of non-party Martal Cosmetics, Ltd. ("Martal") to modify the confidentiality designation in this case so as to permit Martal to access for use in a different lawsuit confidential discovery materials (i.e., tax returns) produced by defendants in this litigation. Despite its error, the Court adheres to its previous ruling.
As an initial matter, the Court's citation to Brown was in the context of deciding whether Martal should be allowed to intervene in the instant case. The Court's analysis did not, however, end there. The Court then considered whether, if Martal were permitted to intervene, it had made a sufficient showing to warrant modification of the protective order. In that connection, the Court cited a Second Circuit decision in which the court allowed permissive intervention but denied the non-party's modification request. See Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 742-43 (2d Cir. 1987). In Minpeco, as here, the court concluded that the movant had not established a compelling need to remove the confidentiality designation, where its purpose was to "ascertain the truth of much of what it ha[d] independently discovered" in its own investigation. Id. at 743. The oral ruling in the instant action also relied upon the decision in Poliquin v. Garden Way. Inc., 154 F.R.D. 29, 32 (D. Me. 1994). There, an attorney was not permitted to use the discovery obtained in one case pursuant to a protective order in a different case in which that discovery could have been independently sought. Id. at 32.
Although the motion was purportedly made on behalf of both Martal and Johnson Johnson (the plaintiff herein), for the reasons stated on the record, Johnson Johnson has no legally cognizable interest in Martal's lawsuit, and thus Martal is the real party in interest on the motion.
The majority's decision in Brown is not to the contrary. That case involved the sealing of the court file itself — including judicial documents that are presumptively subject to the right of public access. See, e.g., United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). Here, in contrast, the disputed records were discovery documents, to which no such presumption of access applies, see United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995); indeed, tax returns are presumptively confidential and will not be ordered produced absent a showing of compelling need. See, e.g, Burger v. Litton Indus.. No. 91-CV-0918 (WK), 1994 WL 669505, at *1 (S.D.N.Y. Nov. 29, 1994); Russell v. Del Vecchio, 764 F.Supp. 275, 276 (E.D.N.Y. 1991). This Court found, and continues to find, that Martal has not made the requisite showing, as it chose not to pursue discovery of the subject tax returns in its own litigation.
For the foregoing reasons, the Court declines to modify its prior ruling, despite its erroneous reliance on Brown.