Opinion
Civil Action No. 04-3752.
March 21, 2005
ORDER
AND NOW, this 21st day of March, 2005, upon consideration of the proposed consent confidentiality order, which we treat as a motion seeking our endorsement of it, and the supplemental brief (docket entry # 22), and the Court finding that:
(a) Sullivan wants private net asset information about JBC's owner, Jack Boyajian, Esq., and JBC, a private company;
(b) JBC describes the documents in question:
The documents requested by Plaintiff included the personal joint income tax returns of JBC's owner, Jack Boyajian, Esquire. Additionally, Plaintiff seeks additional documents to assess the individual net worth of Mr. Boyajian. These documents include IRS tax lien information as to Mr. Boyajian and other personal and private documents concerning Mr. Boyajian's personal finances and those of his non-party wife.
Supp. Brief, at 1-2;
(c) JBC wants to provide these documents to show that defendants' net worth is insufficient to support class action treatment;
(d) While JBC claims the documents it will provide are inadmissible and wants to reserve the right to challenge them, it is willing to provide them to "minimize the burden on the Court,"id. at 2;
(e) A federal district court may issue a confidentiality order only when a party demonstrates "good cause," Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994);
(f) To determine whether "good cause" exists, we may consider seven factors:
1) whether disclosure will violate any privacy interests; 2) whether the information is being sought for a legitimate purpose or for an improper purpose; 3) whether disclosure of the information will cause a party embarrassment; 4) whether confidentiality is being sought over information important to public health and safety; 5) whether the sharing of information among litigants will promote fairness and efficiency; 6) whether a party benefitting from the order of confidentiality is a public entity or official; and 7) whether the case involves issues important to the public.Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995);
(g) Here, were the documents the parties want confidential limited to those specified by JBC in paragraph (b) supra, we would be inclined to grant the motion;
(h) We cannot, however, because there is a significant difference between the documents JBC describes in its brief and the sweeping scope of the proposed order;
(i) The proposed order, for example, would enable the parties to "designate" as confidential "any documents, or other discovery materials that contain confidential information," Prop. Order ¶ 3 (emphasis added);
(j) By endorsing this circular language, we would give the parties carte blanche to invoke our Article III power without any limited principle other than a party's whim as to what she, he, or it believes is "confidential;"
(k) Accordingly, it is impossible for us to apply theGlenmede factors because we have nothing to apply them to;
(l) We are unable, for example, to measure the extent to which disclosure would cause a party embarrassment, violate privacy interests, or affect the public's safety;
(m) Thus, we shall deny the motion without prejudice, with the parties free to re-file a (1) proposed order that specifies each document that would receive confidential treatment and (2) an accompanying brief that (a) describes (or provides a copy of) each document and (b) applies the Glenmede factors to each;
(n) Alternatively, the parties may form a private contract that employs whatever terms they see fit, and, if it is breached, commence a separate action, see Pansy, 23 F.3d at 788 (describing this alternative);
(o) This alternative would provide more predictability than a court order because, while a breach of the proposed order would give us the discretion to fashion any appropriate relief, breach of a contract would entitle the aggrieved party to legal damages; and
Presumably, because damages would be difficult to measure, the parties would use a liquidated-damages clause.
(p) Thus, we shall deny the motion without prejudice,
It is hereby ORDERED that the motion is DENIED WITHOUT PREJUDICE.