New Breed Logistics, Inc. v. CT INDY NH TT LLC (2011)

MEMORANDUM OF DECISION DEFENDANT'S MOTION TO SEAL

The Defendant, Bozzuto, has filed a motion to seal certain exhibits that were provided as part of its objection to CT INDY NH TT, LLC's (“CT INDY”) Motion for Summary Judgment and its' Objection to New Breed Logistics, Inc.'s (“New Breed”) Motion for Summary Judgment.   In particular, the documents requested to be sealed are the lease agreement negotiated between the co-defendant CT INDY and Bozzuto for the Produce building in the complex on Mottowese Avenue.   The second series of documents are e-mails that refer to the negotiations and or lease.¹

The defendant, Bozzuto, has lodged the documents with the court in accordance with Practice Book § 7–4B. The Motion to Seal was scheduled for July 5, 2011 and was posted as to the time and place of the hearing for the public pursuant to Practice Book § 11–20A(e) to afford the public an opportunity to be heard on the motion.   On July 5, 2011 the court heard argument and noted for the record that no member of the public attended the hearing.   However, the defendant failed to provide a memorandum of law in accordance with the practice book to justify the sealing.   The court permitted the parties to submit memorandum and conduct additional argument.   The defendant, Bozzuto, filed a memorandum in support of the motion on July 14, 2011.   The co-defendant and the plaintiff filed memorandum in support and in reply to the motion to seal on July 22, 2011.

On July 26, 2011, the court conducted a second date of argument regarding the motion to seal.

DISCUSSION

The Practice Book sets forth procedures for requests to seal records and for the sealing of records in civil matters.  Practice Book § 11–20A(a) provides that “[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.”   According to Practice Book § 11–20A(b), “the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited, “unless, pursuant to § 11–20A(c), “the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.”

“The presumption of openness of court proceedings ․ is a fundamental principle of our judicial system ․ This policy of openness is not to be abridged lightly.   In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concern outweigh the public's interest open judicial proceedings ․ The right to have documents sealed is not a right the parties have as against each other;  the court must determine the question as against the demands of the public interest.”  (Citation omitted;  internal quotation marks omitted.)  Bank of New York v. Bell, 120 Conn.App. 837, 846, 993 A.2d 1022, appeal dismissed, 298 Conn. 917 (2010).

“[Practice Book] § 11–20A codifies the common law presumption of public access to judicial documents, meaning any document filed with the court that the court reasonably could rely on in support of its adjudicatory function.”   Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 30, 970 A.2d 656, cert. denied sub.   Nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 130 S.Ct. 500 (2009).   In the present action, the defendant, Bozzzuto has filed an objection to the motion for summary judgment filed by New Breed and CT INDY in which Bozzuto's attached exhibits that it contends should be sealed.   These exhibits are a nonbinding proposal from CT Indy's broker to Bozzuto's broker dated June 5, 2008 to lease the Produce Building and the Transportation Building, a draft lease between the same parties dated July 15, 2008 and an exchange of letters and emails.   All of the exhibits relate specifically to the allegations that the defendant CT INDY leased property to Bozzuto's in violation of the plaintiff's contractual rights.   In order to address some of the claims raised the documents that the defendant now seeks to seal are relevant and possible essential to the motion for summary judgment.   The defendant argued that the parties had entered into a confidentiality agreement which protected from disclosure a number of documents including the documents that are presently the focus of this motion to seal.   The defendant argued that because the documents were disclosed with an intention for confidentiality the court should permit them to be sealed from public disclosure.   Disclosure of documents for discovery is not trial nor is it the same as submission of documents for dispositive motions.   Various circuits have also ruled that protective orders do not protect from disclosure documents filed with the court in support of or in opposition to motions for summary judgment.   See Joy v. North, 692 F.2d 880 (C.A.2 (Conn.) 1982) and Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (C.A.4 (Va.) 1988).   The fact that the documents were provided in accordance with the confidentiality agreement of the parties to ease the confrontation and necessity of judicial intervention during these preliminary steps does not protect the documents from disclosure to the public without satisfying the court's review pursuant to the Practice Book. The Practice Book rules expressly state that the agreement of the parties to sealing documents is an insufficient basis for the issuance of such an order.  Practice Book § 11–20A(c).

If the court were to adopt this argument by the defendant then there would be no need for the Procedure often reviewed by the court because the parties would decide on their own what would not be disclosed.   This type of procedure would permit precisely what the practice book intends to promote, openness of the court system.

Therefore, the court will consider this motion by following the requirements recognized by our courts, that is, 1) a determination that the sealing of the documents is necessary to preserve an interest which is determined to override the public's interest in viewing the material;  2) considering any alternatives to such an order;  3) entering an order that is no broader than necessary to protect the overriding interest;  and 4) articulating the overriding interest being protected and specifying the findings underlying the sealing order.

The defendants argue that the sealing order is necessary to preserve their financial interests.²  In particular, the defendant Bozzuto claims that to release the sums they negotiated to pay for Lease of the Produce Building will have a negative impact upon their ability to negotiate within its business.   The defendant did not and could not provide the court with specifics as to how this may impact directly its business.   All of the responses by the defendant provide conclusory statements and speculation as to how it may be impacted.   The defendant could not provide the court with basic information as to other leases and thus aid the court in determining that there is an interest which would override the public's right to view the material.   When a company argues that the disclosure will impact its competitive standing it must specify how disclosure will inflict harm on the business and establish that the harm is sufficient to justify withholding court records from public examination.   Republic of Phillipines v. Westinghouse Elec. Corp., 949 F.2d 653 (C.A. 3 (N.J.) 1991).   Conclusory allegations that the court document contains confidential business information is insufficient to justify sealing the document.  H.B. Fuller Co. v. Doe, 151 Cal.App.4th 879, 895–96 (2007).   Absent some substantitive evidence that the disclosure of the rental terms or amount would be harmful, the defendant's concerns are no more than speculation.

The court also inquired as to alternatives but once again, other than discuss the monthly fees or financial considerations, there was no true alternative offered to eliminate the need for complete disclosure.   Therefore, there is no overriding interest to prevent the disclosure of the very documents that the co-defendant has attached to its memorandum in opposition to the motion for summary judgment.

The motion to seal is denied.³

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. During the oral argument with the court, the parties provided very little information about the emails that the defendant seeks to seal.   The plaintiff New Breed indicated that some of the emails were part of their documents.   At any rate, there was almost not argument as to the basis for sealing these documents..  FN1. During the oral argument with the court, the parties provided very little information about the emails that the defendant seeks to seal.   The plaintiff New Breed indicated that some of the emails were part of their documents.   At any rate, there was almost not argument as to the basis for sealing these documents.

FN2. The defendant Bozzuto originally argued to the court that they were under an obligation not to disclose the terms of the lease with CT INDY by the terms of the lease itself and therefore were obligated to request the protection of the court to satisfy the confidentiality provision of the lease.   In argument before this court on July 26, 2011, Bozzuto argued that the disclosure of the amounts it paid for the lease of the grocery building would have an impact upon its business and negotiations for its goods..  FN2. The defendant Bozzuto originally argued to the court that they were under an obligation not to disclose the terms of the lease with CT INDY by the terms of the lease itself and therefore were obligated to request the protection of the court to satisfy the confidentiality provision of the lease.   In argument before this court on July 26, 2011, Bozzuto argued that the disclosure of the amounts it paid for the lease of the grocery building would have an impact upon its business and negotiations for its goods.

FN3. Pursuant to Practice Book § 7–4B(d), since the court has denied the motion to seal, “the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record ․” Any request for the court to retain the record shall be made in writing to the Court Officer for the X08 Docket by August 3, 2011, if no request to retain the record is made by August 3, 2011 the defendant shall contact the Court Officer to make arrangements to retrieve the lodged record..  FN3. Pursuant to Practice Book § 7–4B(d), since the court has denied the motion to seal, “the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record ․” Any request for the court to retain the record shall be made in writing to the Court Officer for the X08 Docket by August 3, 2011, if no request to retain the record is made by August 3, 2011 the defendant shall contact the Court Officer to make arrangements to retrieve the lodged record.

Brazzel–Massaro, Barbara, J.