Opinion
Case No. 2:00-CV-936-ST
July 11, 2002
ORDER UNSEALING EXHIBITS
This matter originally came before the court on the Amended Motion to Intervene and Objection to Court's Sealing of Records filed by James E. Shelledy, individually and as Editor and Administrator of News Gathering for The Salt Lake Tribune, and by The Salt Lake City Weekly, KUTV, KUTV Holdings, KTVX-TV, and Clear Channel Communications, Inc. (Intervenors).
I. Background
The present issue before the court is limited to the unsealing of Plaintiff's Memorandum in Opposition to ATT's Motion to Dismiss or for Summary Judgment and related exhibits. Counsel have complied with the court's directive that they specify which documents should remain sealed and other procedures set forth in the court's March 8, 2002 Order Regarding Intervenors' Amended Motion to Intervene and Ordering Further Procedures on Objection to Court's Sealing of Records (March 8, 2002 Order). Pursuant to that Order, on April 26, 2002, the parties filed their Stipulation agreeing to unseal specified exhibits or portions thereof. The court will order those exhibits unsealed. In addition, the Stipulation identifies exhibits or portions of exhibits that Plaintiff did not reference in its Memorandum in Opposition. The parties have stipulated that the unreferenced materials may be withdrawn. The court will so order.
II. Common Law Right of Access
The common law right of access to judicial records and documents was explained in the court's earlier Order and is partially repeated here for convenience and clarity.
We begin by acknowledging the axiom that a common law right exists to inspect and copy judicial records. See, e.g., In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir.). The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes. However, the right is not absolute. All courts have supervisory powers over their own records and files. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598; Crystal Grower's Corporation v. Dobbins, 616 F.2d 458, 461 (10th Cir.). Thus a court, in its discretion, may seal documents "if the public's right of access is outweighed by competing interests." In re Knight Publishing Company, 743 F.2d at 235. The Supreme Court discussed a number of the traditional exceptions to the general rule of access in the Nixon case.
There the Court stated:
"[A]ccess has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal' through the publication of "the painful and sometimes disgusting details of a divorce case.' Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing."
Nixon v. Warner Communications, Inc., 435 U.S. at 598 (citations omitted).
The Court pointed out that because the analysis of the question of limiting access is necessarily fact-bound, there can be no comprehensive formula for decision making. Id. at 599 "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. . . . The court must consider the relevant facts and circumstances of the particular case and weigh the relative interests of the parties.
U.S. v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985).
In exercising this discretion we weigh the interests of the public, which are presumptively paramount, against those advanced by the parties. See Nixon, 435 U.S. at 602.
At least three possible interests may be asserted in behalf of the general public in a case like this. First is the general interest in understanding disputes that are presented to a public forum for resolution. Second is the public's interest in assuring that the courts are fairly run and judges are honest. Pointing in the other direction, however, is the public interest expressed in the doctrines of attorney-client privilege and work product immunity; a decision circumventing these doctrines poses a significant threat to the free flow of communications between clients and their attorneys and inhibits the ability of lawyers to adequately prepare their clients' cases.
Plaintiffs have a significant interest in preventing public disclosure of the documents at issue in this case. First, disclosure of the contents of communications between themselves and their attorneys and of reports prepared by their attorneys would effectively nullify their claim of privilege without a hearing on the merits. Second, because of the pending private antitrust actions in which American Crystal is a party-defendant, plaintiffs in those actions might obtain information that would be nondiscoverable absent a determination that the documents were not privileged.
Weighing these competing interests, we hold that retaining the appellate documents under seal for a limited time is appropriate in this case. The public's general interest in the honesty and fairness of this Court is not impaired. The only proceeding oral argument was open to the public; because of the settlement there will be no decision on the merits of the appeal. The coincidence of the public's and plaintiffs' interest in preserving the attorney-client privilege and the work product doctrine here outweighs the more general public interest in information about disputes in the public courts.
Crystal Growers, 616 F.2d at 461 (internal citations partially omitted).
In Crystal Growers, the disputed memorandum and documents, as in this case, were filed under seal. The material remained under seal during the appeals process. However, when the appeal was settled, the Crystal Growers' plaintiffs sought to retain the sealed status of the Tenth Circuit's copy of the trial court's memorandum opinion quoting and discussing the sealed exhibits. The exhibits themselves were returned to the trial court. In the light of the "strong public interest expressed in the doctrines of attorney-client privilege and work product immunity" which would be impaired by disclosure of the trial court's memorandum opinion quoting and discussing the substance of the exhibits, the Tenth Circuit ordered them kept under seal for five years. Id. at 461. Unlike the "limited time" retention of documents under seal ordered in Crystal Growers, in this case ATT and Deseret News Publishing apparently seek to have some of the exhibits remain under seal indefinitely. Material to the Tenth Circuit's decision in Crystal Growers was the fact that, because of the settlement, it would not make a decision on the merits of the appeal.
In this case, the court did make a decision on the merits of all of Plaintiffs claims against ATT-a decision granting judgment in favor of ATT. With one exception, the documents at issue in this case are not claimed privileged as attorney-client communications or work-product.
Some of the documents contain information on settlement negotiations, proprietary business strategy and financial information. Plaintiff and Deseret News Publishing are business competitors as well as litigants. While they do share common interests in the business of NAC, they otherwise compete strongly for readers, advertisers and influence. These separate competitive business operations are not at issue in this case. Their non-NAC/JOA financial information and their business strategy are matters that, if publically disclosed, would put them at a competitive disadvantage.
As noted previously, any decision on a claim of common law access to court documents requires consideration of the relevant facts and circumstances of this particular case while weighing the relative interests of the parties. Each document must be individually considered while weighing the countervailing interests. In weighing the interests, the court has considered whether information cited from a document can be fairly represented by excerpts or if its significance can only be understood in the context of the entire document. The court has also considered the specific issues raised by ATT's motion and the issues that remain in the case.
III. ATT
ATT seeks to retain the following four documents under seal: Exs. II-139, II-140, II-172 and II-211. Ex. II-139 is a draft of an October 20, 1999, briefing package prepared for ATT's Board of Directors involving the proposed, but ultimately rejected, sale of Kearns-Tribune to a Deseret News Publishing affiliate created for the purpose of acquiring the Tribune. This exhibit contains several handwritten edits by an unknown author, none of which are material to Plaintiff's claims against ATT. The exhibit is marked "ATT Proprietary (Restricted)" and its contents are held confidential and restricted within ATT.
The "II" series of exhibits are found at Tab P of the exhibits to Plaintiff's Memorandum in Opposition.
Ex. II-140 is a copy of the minutes of the ATT Board of Directors meeting on October 20, 1999. it was during that meeting that the ATT Board of Directors rejected a proposed sale to Deseret News Publishing's affiliate. Exs. II-139 and II-140 are not quoted in Plaintiff's memorandum. They were submitted to support Plaintiff's assertion that the ATT Board considered and rejected the proposed sale to the Deseret News Publishing affiliate — an uncontested fact. Insofar as Ex. II-140 is relevant, regarding the proposed and rejected sale, it is quoted or discussed at pages 50 and 56-58 of Mr. Malone's deposition, Plaintiff's Tab H. Those pages of Mr. Malone's deposition will be unsealed pursuant to the parties' Stipulation. The court finds that Exs. II-139 and II-140 otherwise contain ATT's business information, the disclosure of which could put it at a competitive disadvantage.
Ex. II-172 is the November 22, 2000 draft of language for a Board of Director's briefing package e-mailed back and forth between ATT Broadband and ATT's in-house counsel, with comments regarding tax consequences of the proposed sale. The briefing packages are, as noted above, proprietary information which is maintained as confidential. Ex. II-172 is attached to show that ATT employees discussed the tax consequences of the proposed sale price on the e-mail's date. This information is stated in Plaintiff's Memorandum in Opposition at numbered paragraph 227, and is not disputed.
Weighing the competing interests for these exhibits, the court finds that the public's common law right of access to court documents is not impaired by retaining them under seal because the relevant information from Exs. II-139, II-140 and II-172 is fully available to the public through other means, including the direct quotes in Mr. Malone's deposition and the undisputed fact in paragraph 227 of Plaintiff's Memorandum in Opposition. ATT has met its burden of showing its countervailing interest in avoiding competitive harm by protecting the confidentiality of its proprietary business information including matters discussed at meetings of its Board of Directors and the manner in which it presents matters to its Board of Directors. On balance, ATT has shown that Exs. II-139, II-140 and II-172 should remain sealed. However, none of the references to these exhibits, including quotes therefrom will be redacted from Plaintiff's Memorandum and/or the deposition pages that are unsealed.
Ex. II-211 is an August 30, 1999 letter from ATT's counsel to its corporate officers relaying legal advice and offering several options. The letter is marked "Privileged and Confidential Advice of Counsel." Deseret News Publishing produced Ex. II-211 in discovery. ATT presents evidence that it did not waive attorney-client privilege for this document and does not know how it came into the possession of Deseret News Publishing. The witness who identified the document, Leo J. Hindery, Jr., testified that he received it but did not know how it came to be prepared, and not recall sending it to, or discussing it with, Deseret News Publishing. Hindery Dep., Tab D at 242.
The public interest expressed in the doctrine of attorney-client privilege is explained in Crystal Growers, supra, 616 F.2d at 461. On the record presented for this motion, the court finds that ATT has met its burden of establishing that Ex. II-211 is subject to the attorney-client privilege and that the privilege has not been waived. See Lifewise Master Funding v. Telebank, 206 F.R.D. 298, 302-03 (D. Utah 2002) (applying Utah law in diversity case). Accordingly, the court will not unseal Ex. II-211 and will order that paragraph 131 of Plaintiff's Memorandum be redacted to remove reference to the contents of Ex. II-211.
The same is true under New York and Delaware law. See Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470-71 (S.D. N.Y. 1993) (party asserting attorney-client privilege has burden of proving it applies) and Interfaith Housing Delaware, Inc., v. Town of Georgetown, 841 F. Supp. 1391, 1396 (D. Del. 1994) (same).
ATT does not object to the unsealing of Plaintiff's Memorandum in Opposition except for paragraph 131, as discussed above.
IV. Deseret News Publishing
Deseret News Publishing objects to the unsealing of Plaintiff's Memorandum in Opposition to the extent that it reveals the contents of any exhibits it contends should remain sealed. Specifically, it opposes unsealing of many exhibits because it contends that its privacy interest in financial and strategic documents should be protected. At issue are three categories of documents. First, are 21 memorandums, reports or letters to the Executive Committee of Deseret News Publishing' parent company, Deseret Management Corporation (DMC). These are from Glen Snarr, Chairman of the Board of Directors of Deseret News Publishing or its outside consultant, Gary Gomm. Because the DMC Executive Committee is comprised of persons who are the members of the First Presidency of The Church of Jesus Christ of Latter-day Saints, most of the 21 exhibits are addressed "To: The First Presidency." Accordingly, they will be referred to as the "memos to the First Presidency." Two additional memos to the First Presidency were attached as exhibits but were not referenced in Plaintiff's Opposition Memorandum. (Pl.'s Exs. II-25 and II-47). Those exhibits were not considered by the court and will be withdrawn pursuant to the Stipulation.
One is addressed to Thomas S. Monson (one of the three individual members of the First Presidency) and two are not formally addressed.
The second category is comprised of 10 documents embodying the minutes of meetings for Deseret News Publishing's Board of Directors and 21 documents comprising planning/strategic reports. The third category is comprised of 23 documents exchanged between ATT and Deseret News Publishing prior to this case filing.
Deseret News Publishing contends that the memos to the First Presidency should remain sealed for the following reasons: they contain confidential internal communications between it and its parent company; some contain legal and business information regarding its business plans and strategy that would result in competitive harm if released; they were not attached in good faith because the First Presidency is not a party to this case; and they were attached only for the purpose of gaining leverage by a threat of negative publicity.
The memos to the First Presidency are, as the name implies, communications to, and not from, Deseret News Publishing's parent company. Therefore, the court does not find it dispositive that the First Presidency is not a party to this action because the memos are not communications by a non-party. Instead, they are detailed and contemporaneous communications from a party defendant in this case recounting the very events that form the basis of many of Plaintiff's claims against ATT and Deseret News Publishing. They are relevant to ATT's motion because, as noted in the March 27, 2002 Order Granting Summary Judgment, Plaintiff's theory on several of its claims against ATT was as follows:
The ATT Defendants sold Kearns-Tribune to MediaNews when they knew that "as part of the deal," MediaNews would then amend the JOA, which amendments would then violate Plaintiff's rights under the separate Management Agreement and Option Agreement. "The deal," as seen by Plaintiff, is an alleged "three way transaction" that allows the parties (presumably Deseret News Publishing, the ATT Defendants and MediaNews), to achieve the goal of violating the Option Agreement and Management Agreement by selling Kearns-Tribune to a third party accompanied by that third party's concession to Deseret News Publishing's demands.
March 27, 2002 Order Granting Summary Judgment, at 26.
The court found this claim highly attenuated and held that ATT was entitled to judgment as a matter of law. Although Plaintiff did not prevail on its claims, the public's common law right of access to the court records is not limited to only those records relating to claims where Plaintiff prevails. The memos to the First Presidency do not contain the type of information that could support a finding that they were attached in a bad faith attempt "to gratify private spite or promote public scandal" within the meaning of Nixon, 435 U.S. at 598. They are relevant to, among other theories, Plaintiff's attempt to show a chronological history of what Plaintiff argues were efforts by Leo Hindery, of TCI and later of ATT, to curry favor with the First Presidency, to secretly sell Tribune Assets in violation of the Option, to not deal fairly with Plaintiff, and to sow discord between Plaintiff and Deseret News Publishing. They are also relevant to Plaintiff's theory that Deseret News Publishing was anxious to buy the Tribune and later converted its efforts into the alleged "three way deal" to obtain its strategic objectives via ATT's sale to MediaNews.
The court did not find the evidence of negotiations for the various proposed deals between ATT and Deseret News Publishing to be relevant to Plaintiff's intentional interference with contract claim against ATT. However, that evidence was part of Plaintiff's presentation of its theory of that claim. The public right of access includes access to those materials that the court determined were insufficient to support Plaintiff's claim. Otherwise the public would be hindered in the ability to understand a "dispute presented in a public forum" or to scrutinize judicial decisions. See Crystal Growers, 616 F.2d at 461 (reviewing possible interests on behalf of public access to court documents).
To be weighed against the public's right of access to these exhibits are the countervailing interests in protecting the confidential financial and business strategy information contained in some of the exhibits.
Balancing the countervailing interests, the court will generally unseal the memos to the First Presidency in their entirety. For the memos to the First Presidency which the court finds contain confidential financial or strategy information, the court finds that ordering them redacted at this point would be time consuming because it may involve disputes over the extent of redaction. Further, it has the potential for mistaken release of competitive financial or strategic planning information. The court finds that the information that Plaintiff contends is relevant to its claims against ATT is quoted or otherwise disclosed in the deposition pages to be unsealed, or in Plaintiff's Memorandum in Opposition.
Exs. II-19 (but not its attachment). II-20, II-24, II-31, II-56, II-57, II-61, II-65, II-66, II-67, II-70, II-72, II-73, II-76, II-78, and II-85.
Exs. 22, 41, 77, 80 and 88.
Mindful of the need to determine the public's common law right of access on a particularized basis the court will ensure access as follows. Where an exhibit contains otherwise confidential financial or business strategy information that was not directly relevant to Plaintiff's theory of the case, the court will unseal the deposition pages which quote or otherwise disclose the relevant information. The exhibits themselves will remain sealed. Information Plaintiff relied upon is also quoted or disclosed in its Memorandum in Opposition. The court will unseal all but paragraph 131 of Plaintiff's Opposition Memorandum. This ensures that the information relied upon by Plaintiff is fully available while retaining as confidential information that could result in competitive harm.
The court now turns to the 10 documents embodying the minutes of meetings of Deseret News Publishing's Board of Directors and the 23 documents comprising planning/strategic reports. The court finds that they generally should remain sealed because they contain much strategic planning, financial and other competitive business information. Again, as was the situation with the previous documents, the information from these documents that Plaintiff believed to be relevant will be fully available to the public because it quoted or otherwise revealed in the deposition pages and the Memorandum to be unsealed.
Deseret News Publishing characterizes the third category of documents, the 23 documents exchanged between ATT and Deseret News Publishing, in connection with the uncompleted sale and its aftermath, as "communications in the course of negotiating disputed claims."
The record is very sparse on this claim. Other than a reference to paragraph five of Magistrate Alba's Confidentiality Order, Deseret News Publishing cites no authority for retaining these documents under seal. The Magistrate Judge's Confidentiality Order provides at paragraph five:
Order Re: Plaintiff's Motion to Remove "Confidential" and "Attorney's Eyes Only" Designation From Documents Produced by Defendants (February 6, 2002).
5. DNPC [Deseret News Publishing] has shown good cause for designating as "confidential" the documents exchanged between ATT and DNPC. The "confidential" designation for these documents is appropriate and shall remain in place.
Magistrate Judge's February 6, 2002 Confidentiality Order at 3.
This claim lacks sufficient detail and the court is left to speculate on its basis. Some of these exhibits are communications to Deseret News Publishing from its lawyers. However, Deseret News Publishing then sent them on to TCI/ATT in support of its attempt to arrange the proposed sale. Deseret News Publishing does not claim a privilege in any of these documents. In contrast to ATT's clearly explained basis and evidentiary support for countervailing interests that require retaining four of its documents under seal, Deseret News Publishing's broad and vague claim requires the court to speculate regarding its 23 documents.
On the record before it, the court finds that most of these documents were exchanged between the parties in furtherance of an arm's length commercial transaction. Various proposals for forms of sale were exchanged and discussed. As part of the business deal, the parties attempted to resolve the workings of NAC among themselves. In the course of the proposed sale, Deseret News Publishing and ATT considered filing a declaratory judgment action against Plaintiff to determine the validity of the Option Agreement. As part of its negotiations to buy, Deseret News Publishing sent the prospective seller, TCI/ATT, its legal position on why it believed that Plaintiff's Option Agreement was invalid and therefore it was no impediment to the sale. As part of these communications, Deseret News Publishing and TCI/ATT also exchanged and edited each others proposals for letters and other communications, including the proposed declaratory judgment action. All of this evidence was advanced by Plaintiff as evidence of its theory of an eventual "three way transaction" whereby TCI/ATT joined with Deseret News Publishing to breach the contracts at issue and tortiously interfere with Plaintiff's contractual rights.
It is true that the court found this evidence irrelevant to Plaintiff's intentional interference claims against ATT because the proposals for sale to Deseret News Publishing were not completed. However, as noted above, the evidence is relevant to Plaintiff's theory of its claims and was submitted to the court for its decision on the motion. Because the documents were filed as part of the court record in this case, there is a presumptively paramount interest in their public disclosure.
The court finds that Deseret News Publishing has failed to state particularly why each of these documents should remain under seal. Deseret News Publishing does not claim a privilege for any of the documents. It does not make a particularized and clearly articulated showing that they are somehow not admissible on a summary judgment motion. The reference to paragraph five of the Magistrate Judge's Order is insufficient. The court has previously held that the Magistrate Judge's findings that there is "good cause" under Fed.R.Civ.P. Fed. 26(c) for the maintenance of discovery materials as confidential is not a sufficient reason to maintain them sealed after they are filed as part of the record in this case.
Order Regarding Intervenors' Amended Motion to Intervene and Ordering Further Procedures on Objection to Court's Sealing of Records (March 8, 2002 Order)
The court could infer that by "communications in the course of negotiating disputed claims," Deseret News Publishing means "statements made in compromise negotiations" within the meaning of Fed.R.Civ.P. 408. If so, the court does not find that Deseret News Publishing has met its burden of showing, with the exception of Ex. II-131, that the documents are statements made in compromise negotiations of the claims at issue in ATT's summary judgment motion.
The parties stipulated to the unsealing of Ex. II-230 and Ex. II-231, which memorialize their negotiation sessions and the court makes no findings on those exhibits.
Under Rule 408, evidence of settlement offers is not admissible and "[e]vidence of conduct or statements made in compromise negotiations is likewise not admissible" to prove liability or invalidity of or the amount of a claim. Rule 408 excludes not only actual settlement offers, but also statements made during settlement negotiations. Rule 408 does not exclude evidence "offered for another purpose." Bower v. Stein Eriksen Lodge Owners Ass'n, Inc., 201 F. Supp.2d 1134, 1139 (D. Utah 2002) (quoting Rule 408).
Rile 408 only bars admission of evidence relating to settlement discussions if that evidence is offered to prove "liability for or invalidity of the claim or its amount." Here, the evidence related to an entirely different claim-the evidence was not admitted to prove the validity or amount of the "claim under negotiation." See also 2 Jack Weinstein Margaret Berger, Weinstein's Evidence ¶ 408, at 408-32 (1991) ("Where the settlement negotiations and terms explain and are part of another dispute they often must be admitted if the trier is to understand the case."). Thus, Rule 408 did not bar this evidence because it related to settlement discussions that involved a different claim than the one at issue in the current trial.
Broadcourt v. Summa Medical Corp., 972 F.2d 1183, 1194 (10th Cir. 1992).
"Simple business communications" are not protected by Rule 408. Big O Tires v. Goodyear Tire Rubber Co., 561 F.2d 1365, 1372 (10th Cir. 1977). However, "when the issue is doubtful, the better practice is to exclude evidence of compromises or compromise offers." Bower, 201 F. Supp.2d at 1139 (quoting Bradbury v. Phillips, 815 F.2d 1356, 1364 (10th Cir. 1987)).
Deseret News Publishing has not shown clearly how its documents make offers of settlement, or if so, of a dispute at issue in this case. This case does not involve claims between Deseret News Publishing and TCI/ATT. The documents are not offered to show liability for or invalidity of or the amount of Deseret News Publishing's claims against Kearns-Tribune, ATT and/or TCI. They are merely business communications regarding a potential sale and terms of that sale, planning what the parties would do to advance that sale. These are not offers of compromise of claims, much less negotiations to compromise or settle Plaintiff's claims against ATT — the issue on this Motion for Summary Judgment. They are offered in support of Plaintiff's claims against the ATT Defendants.
Because Deseret News Publishing has failed to make an adequate showing for the applicability of Rule 408, the court cannot find it applicable to Plaintiff's claims against ATT. However, deficient as Deseret News Publishing's showing has been for this set of documents, the court is mindful that when in doubt, compromise negotiations should be excluded. Accordingly, and in accordance with its resolution of the unsealing of other categories of documents, if there is any question that it is a settlement negotiation, the court will unseal the deposition pages and the disclosures made in the Plaintiff's Memorandum in Opposition rather than the entire document itself.
In conclusion, the court notes that this order deals only with the issue of unsealing court documents filed in connection with the ATT Motion. This determination in no way is intended to determine the status of exhibits for any other motions, hearings or for the trial. Given the nature of the claims by each party, otherwise confidential financial information may subsequently be shown to be admissible. The court will enter a separate order on the pending Intervenors' Second Motion for Access to Sealed Records.
It is therefore
ORDERED that the exhibits listed in the April 26, 2002 Stipulation Regarding Confidential Documents that May be Unsealed Pursuant to Order Dated March 8, 2002, be UNSEALED. It is further
ORDERED that the exhibits listed as not referenced in the April 26, 2002 Stipulation Regarding Confidential Documents that May Be Unsealed Pursuant to Order Dated March 8, 2002, will be WITHDRAWN by Plaintiff and shall REMAIN SEALED. It is further
ORDERED that although some exhibits remain under seal, the portions of those exhibits that are quoted in or otherwise disclosed in unsealed deposition pages and in the Plaintiff's Memorandum in Opposition, are UNSEALED. It is further
ORDERED, that the following documents attached to Plaintiff Memorandum in Opposition be UNSEALED.
Tab A.
Tab B, including all exhibits.
Tab C.
Tab D, except for page 224.
Tab E, including all exhibits.
Tab F, including all exhibits.
Tab G.
Tab H.
Tab I.
Tab J.
Tab K, except for pages 36, 38 and 40 and Exs. 6 and 9.
Tab L, except for pages 151, 154 and 165.
Tab M, except for pages 45-50.
Tab N.
Tab 0.
Tab P, EXCEPT FOR THE FOLLOWING, WHICH SHALL REMAIN SEALED: Exs. II-1, II-2, II-5, II-7 (to be withdrawn), II-13, II-14, II-18, II-21, II-22, II-25 (to be withdrawn), II-35, II-36, II-37, II-40, II-41, II-47 (to be withdrawn), II-50, II-51, II-54, II-77, II-80, II-84 (to be withdrawn), II-85, II-88, II-97, II-100, II-116, II-121, II-131, II-136 (to be withdrawn), II-139, II-140, II-172, II-184, II-211 (and all references to this exhibit shall be redacted as stated below), II-218, II-219, II-221, II-224, and II-233.
This list of Tab P exhibits includes the exhibits discussed above which shall be withdrawn by Plaintiff and remain sealed.
Tab Q.
Tab R.
It is further
ORDERED that numbered paragraph 2 of Ex. II-53 shall be redacted and the redacted Ex. II-53 be UNSEALED; that attachment to Ex. II-19 be redacted and the redacted Ex. II-19 be UNSEALED; that Ex. II-103 shall be redacted beginning at paragraph 2.4 at page 4, through to the end, and redacted Ex. II-103 shall be unsealed. It is further
ORDERED, that paragraph 131 of Plaintiff's Memorandum in Opposition be redacted. It is further
ORDERED that within five days of entry of this order Plaintiff shall prepare and serve on Defendants' counsel, a redacted version of its Memorandum and attach all unsealed exhibits and/or redacted exhibits. Plaintiff shall serve the Amended Memorandum and unsealed exhibits in accordance with the procedures set forth in DUCivR 54-1 for preparation, review and objections to proposed orders. Defendants may file objections in accordance with the procedures set forth in DUCivR 54-1(d). It is further
ORDERED that counsel shall make reasonable efforts to reach agreement with opposing attorneys on disagreements, if any, regarding the documents to be unsealed or material to be redacted from the Plaintiff's Memorandum in Opposition. It is further
ORDERED that the court's ruling today that certain documents remain sealed relates only to ATT's Motion to Dismiss or for Summary Judgment and is not a determination for the purposes of future motions, hearings or trial. It is further
ORDERED that the parties' briefs on the Objection to Court's Sealing be unsealed, including the exhibits, except for the following, which shall be redacted: the home phone number appearing at the bottom of Deseret News Publishing's Memorandum Ex. C and the copies of Exs. II-139, II-140, II-172 and II-211 attached to ATT's Memorandum in Support of Keeping Certain Exhibits Sealed, filed on April 24, 2002. Within five days of the entry of this Order, Deseret News Publishing and ATT shall prepare and file redacted versions of their briefs and exhibits and file them without seal.