swam; e- I i Lt": :30? PROOF OF SERWCE To Be Argued By: CHARLES D. TOBIN (admitted pro hac vice) Time Requested: 15 Minutes graft: Enrk ?npreme @nnrt APPELLATE DEPARTMENT WILLIAM J. Plainti?CRespondent, ?against? MICHAEL N. KLAR, Defendant-Appellant. GIZMODO MEDIA GROUP, LLC, Intervenor-Appellant, MAUREEN MCPHILMY, Intervenor-Respondent. BRIEF FOR INTERVENOR-APPELLANT GIZMODO MEDIA GROUP, LLC CHRISTINE N. WALZ HOLLAND KNIGHT LLP 31 West 52nd Street New York, New York 10019 (212) 513-3200 Co?Counsel: CHARLES D. TOBIN (admitted pro hac vice) BALLARD SPAHR LLP 1909 Street, NW, 12th Floor Washington, DC 20006-1157 (202) 661-2218 DOCKET NO. 2017-05359 Attorneys for Intervenor-Appellant Gizmodo Media Group, LLC Nassau County Clerk?s Index No. 608441/ 16 To Be Argued By: CHARLES D. TOBIN (admitted pro hac vice) Time Requested: 15 Minutes d New York Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT WILLIAM J. O’REILLY, Plaintiff-Respondent, —against— MICHAEL N. KLAR, Defendant-Appellant. GIZMODO MEDIA GROUP, LLC, Intervenor-Appellant, MAUREEN MCPHILMY, Intervenor-Respondent. BRIEF FOR INTERVENOR-APPELLANT GIZMODO MEDIA GROUP, LLC CHRISTINE N. WALZ HOLLAND & KNIGHT LLP 31 West 52nd Street New York, New York 10019 (212) 513-3200 Co-Counsel: CHARLES D. TOBIN (admitted pro hac vice) BALLARD SPAHR LLP 1909 K Street, NW, 12th Floor Washington, DC 20006-1157 (202) 661-2218 Attorneys for Intervenor-Appellant Gizmodo Media Group, LLC Nassau County Clerk’s Index No. 608441/16 DOCKET NO. 2017-05359 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii .............................................. 1 .................................................. 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 PRELIMINARY STATEMENT QUESTIONS PRESENTED I. THE PUBLIC HAS A QUALIFIED RIGHT OF ACCESS TO JUDICIAL RECORDS THAT CAN BE OVERCOME ONLY UPON SPECIFIC FINDINGS OF FACT ESTABLISHING A COMPELLING NEED FOR CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . 6 II. THERE IS NO COMPELLING CIRCUMSTANCE OR GOOD CAUSE FOR ENTERING THE SEALING ORDER . . . . . . . . . . . . . . . . . . . . 10 1. The Sealing Order Was Improperly Entered Without Sufficient Factual Findings to Support It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. None of the Other Justifications Provided by Mr. O’Reilly Would Support Sealing Court Records Under These Circumstances . . . . . . . . 13 3. The Sealing Order Is Not Narrowly Tailored . . . . . . . . . . . . . . . . . . . . . . . . . 16 4. The Trial Court Failed to Take into Account the Substantial Public Interest in the Records and Proceedings. . . . . . . . . . . . . . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 i TABLE OF AUTHORITIES PAGE(S) Cases Applehead Pictures LLC v. Perelman, 80 A.D.3d 181, 6 N.Y.S.3d 19 (1st Dep’t 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Associated Press v. Bell, 70 N.Y.2d 32 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re Astor, 13 Misc. 3d 1203(A), 824 N.Y.S.2d 755 (Sup. Ct. N.Y. Cty. 2006) . . . . . . 8 Matter of Conservatorship of Brownstone, 191 A.D.2d 167, 594 N.Y.S.2d 31 (1993) ................................ 17 Coopersmith v. Gold, 156 Misc. 2d 594 (Sup. Ct. Rockland Cty. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 7 Daily News L.P. v. Wiley, 126 A.D.3d 511, 515, 6 N.Y.S.3d 19, 24 (1st Dep’t 2015) . . . . . . . . . . . . . . . 14 Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 711 N.Y.S.2d 419 (1st Dep’t 2000) . . . . . . . . . . . . . . . . . . . . . . 7, 8, 16 In re Diaz, 2015 WL 223608 (Surr. Ct. N.Y. Cnty. Jan. 13, 2015) . . . . . . . . . . . . . . . . . . . 15 Doe v. New York Univ., 6 Misc. 3d 866 (Sup. Ct. N.Y. Cty. 2004) ................................ 11 Globe Newspapers, Co. v. Superior Court, 457 U.S. 596 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 835 N.Y.S.2d 595 (2d Dep’t 2007) ...................... 7, 8 Mosallem v. Berenson, 76 A.D.3d 345, 905 N.Y.S.2d 575 (1st Dep’t 2010) . . . . . . . . . . . . . . . . . . . . . 7, 8, 14 ii PAGE(S) Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 In re New York Times Co., 828 F.2d 110 (2d Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Burton, 189 A.D.2d 532, 597 N.Y.S.2d 488 (3d Dep’t 1993) . . . . . . . . . . . . . . . . . . . . . 11 Press-Enter. Co. v. Superior Court (“Press-Enter. I”), 464 U.S. 501 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Press-Enter. Co. v. Superior Court (“Press-Enter. II”), 478 U.S. 1 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 16 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re Will of Hofmann, 284 A.D.2d 92, 727 N.Y.S.2d 84 (1st Dep’t 2001) . . . . . . . . . . . . . . . . . . . . . . . 14 Statutes Domestic Relations Law Section 235 ......................................... 5 Rules 22 NYCRR § 202.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 22 NYCRR § 216.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 13, 16, 17 iii PAGE(S) Constitutional Provisions New York Constitution Article I, Section 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. Const. amend I .......................................................... 1 passim Other Authorities Lauren Evans, “Fox Will Investigate Sexual Harassment Claims Against Bill O’Reilly,” Jezebel (April 10, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Prachi Gupta, “Murdochs Consider Taking Alleged Serial Sexual Harasser Bill O’Reilly Off the Air,” Jezebel (April 18, 2017) . . . . . . . . . . . . . . . . . . . . . . 18 Emily Steel and Michael S. Schmidt, “Bill O’Reilly Thrives at Fox News, Even as Harassment Settlements Add Up,” The New York Times (April 1, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Emily Steel and Michael S. Schmidt, “Bill O’Reilly Settled New Harassment Claim, Then Fox Renewed His Contract,” The New York Times (October 21, 2017), available at https://mobile.nytimes.com/ 2017/10/21/business/media/bill-oreilly-sexual-harassment.html . . . . . . . . . 18 Erik Wemple, “Bill O’Reilly: Poor public figure,” The Washington Post (Nov. 22, 2011), available at https://www.washingtonpost.com/ blogs/erik-wemple/post/bill-oreilly-poor-public-figure/2011/11/21/ gIQAFwzUlN_blog.html?utm_term=.86f431e53ac2 . . . . . . . . . . . . . . . . . . . . . 18 iv PRELIMINARY STATEMENT This appeal involves the second lawsuit that Plaintiff-Appellee William J. O’Reilly (“Mr. O’Reilly”) has filed and then asked a court to conduct entirely in secret. In both lawsuits, Intervenor-Appellant Gizmodo Media Group, LLC (“Gizmodo Media Group”) has intervened to protect the public right of access to court filings. And, in both lawsuits, over Gizmodo Media Group’s objection and in contravention of clear constitutional requirements, two trial courts in Nassau County entered broad sealing orders that substantially or entirely restricted that right of access.1 In the instant matter, the trial court misapplied court rules, failed to make the required specific findings, held no hearing on the issues, and issued an overly broad order that sealed almost the entire record (the “Sealing Order”). In so doing, the trial court effectively blocked from public view Mr. O’Reilly’s tort claim against his exwife’s former attorney. This overly broad Sealing Order violates the First Amendment and New York law, including Article I, Section 8 of the New York Constitution. The trial court’s faulty reasoning and misapplication of Court Rule 202.5, which simply provides for the parties and the courts to redact a defined category of In the first matter, O’Reilly v. McPhilmy, the trial court issued a blanket sealing order, which effectively sealed the docket and all court filings. The trial court also relied on that sealing order as its basis to close the courtroom during a hearing. Gizmodo Media Group has intervened and filed an appeal of the sealing order in the Second Department. See Gizmodo Media Group, LLC v. O’Reilly, Case No. 2017-02522. Briefing is complete but no date has been set for oral argument. 1 1 “confidential personal information,” fails to meet the well-established requirement that the court make specific, on-the-record factual findings to justify a decision to seal court records and that any sealing order must be narrowly tailored. Further, Mr. O’Reilly provided the trial court with no legally cognizable basis for overriding the strong presumption under the U.S. Constitution and New York law in favor of access to court proceedings and judicial records. Therefore, the trial court’s records and proceedings in O’Reilly v. Klar should not have been sealed. For the reasons set forth in this brief, Gizmodo Media Group respectfully requests that this Court (1) reverse and vacate the trial court’s May 2, 2017 Sealing Order, (2) issue an order directing that all records in O’Reilly v. Klar, including the July 18, 2017 Order denying Mr. Klar’s motion to dismiss, be unsealed, and (3) award Gizmodo Media Group the costs and disbursements of this proceeding.2 QUESTIONS PRESENTED Did the trial court err by issuing the overly broad May 2, 2017 Order sealing the majority of court records in the judicial proceeding, including the July 18, 2017 Order denying Mr. Klar’s motion to dismiss the Complaint, in violation of the First Amendment and New York law? 2 In the alternative, Gizmodo Media Group asks that the Court order the trial court to make specific findings to justify any narrow sealing, in a published order, within 10 days, and to immediately release the remainder of the documents. 2 STATEMENT OF FACTS Intervenor-Appellant Gizmodo Media Group is the owner and publisher of the popular news websites Gizmodo, Jalopnik, Jezebel, Deadspin, Splinter, Lifehacker and Kotaku, which cover a wide range of subjects, including politics, the media, and contemporary women’s issues. Gizmodo Media Group has extensively reported on Mr. O’Reilly, an influential television personality and conservative political commentator who recently and involuntarily separated from his employer, Fox News, following numerous allegations of sexual harassment. Mr. O’Reilly, a high-profile plaintiff, has previously availed himself of the courts of this state to pursue tort litigation against his ex-wife, Maureen McPhilmy. Specifically, Mr. O’Reilly filed a lawsuit alleging that Ms. McPhilmy fraudulently induced him to enter into their Separation Agreement and Divorce Judgment (“the contract”) and sought $10 million in damages. See O’Reilly v. McPhilmy, Index No. 602235/2016 (the “McPhilmy Action”). On December 12, 2016, Mr. O’Reilly filed the instant case against Michael N. Klar, Maureen McPhilmy’s former attorney and an officer of the court, alleging that Mr. Klar aided and abetted the fraudulent inducement of Mr. O’Reilly to enter into the contract and alleging that Mr. Klar additionally committed a fraud on the court for submitting the divorce judgment to the court for execution. R. at 17-24. 3 (the “Klar Action”).3 Mr. O’Reilly also seeks $10 million in damages from Mr. Klar. Id. The Klar Action, like the McPhilmy Action, sounds only in tort. On January 23, 2017, Defendant-Appellant Klar filed an order to show cause in the trial court seeking permission to publicly file his motion to dismiss and documents in support of his motion to dismiss. R. at 57-59. These documents had been previously sealed in either the McPhilmy action or in the underlying divorce action between Mr. O’Reilly and Ms. McPhilmy. Id.4 In response, on January 26, 2017, Mr. O’Reilly filed an order to show cause, requesting that the trial court seal the entire matter, just as a different trial court had done in the McPhilmy Action. R. at 60-61. On February 24, 2017, Gizmodo Media Group moved to intervene in the Klar Action to oppose the sealing of any filings in the trial court. (R. at 62-71.) On May 2, 2017, the trial court issued the broad Sealing Order. (R. at 4-12.) In that Order, the trial court cited, as the basis for its decision, Rule 202.5(e). (R. at 5-7.) This Rule provides, in relevant part: (e)(1) Except in a matrimonial action, or a proceeding in surrogate’s court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact 3 References to the record are made as R. ____. Gizmodo Media Group does not have access to the sealed documents; therefore, they are not a part of the record submitted with this appeal. 4 Mr. Klar also filed a Notice of Appeal of the trial court’s Sealing Order. 4 confidential personal information (“CPI”) in papers submitted to the court for filing. . . . 5 (e)(2) The court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of section 216.1 of this Title that any sealing be no broader than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an unredacted copy under seal for in camera review; or determine that information in a particular action is not confidential. The court shall consider the pro se status of any party in granting relief pursuant to this provision. In addition to its citation to Rule 202.5(e), the court also stated in the Sealing Order that “the public right of access is ‘not absolute’” and “restrictions have been placed on access to Family Court records [and] records in matrimonial actions, among others.” (R. at 7.)(internal citations omitted). The trial court then directed that 19 of the 22 exhibits be sealed, on the basis that (1) they have a “close connection to the [O’Reilly/McPhilmy] matrimonial action” and, therefore, should be sealed under Rule 202.5(e)(1)(v) and Domestic Relations Law § 235 or (2) that the documents were legal decisions “captioned under Under the rule, confidential personal information (“CPI”) means: (i) the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof; (ii) the date of an individual’s birth, except the year thereof; (iii) the full name of an individual known to be a minor, except the minor’s initials; (iv) a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof; and (v) any of the documents or testimony in a matrimonial action protected by Domestic Relations Law section 235 or evidence sealed by the court in such an action which are attached as exhibits or referenced in the papers filed in any other civil action. . . . 5 5 anonymity” and thus, “unmaking the parties thereto would defeat the purpose behind that designation.” (R. at 8-11.) The only documents that the trial court did not seal under the Sealing Order were (1) the Complaint in the Klar Action; (2) a stipulation extending the time to respond to the Complaint; and (3) a letter concerning service of the summons and complaint in the McPhilmy Action.6 After issuing the Sealing Order, the trial court also entered a decision denying Mr. Klar’s motion to dismiss the Complaint (the “Motion”). The trial court also sealed the decision and order on the Motion in their entirety, without making any additional findings of fact to support that sealing decision. This appeal followed. ARGUMENT I. THE PUBLIC HAS A QUALIFIED RIGHT OF ACCESS TO JUDICIAL RECORDS THAT CAN BE OVERCOME ONLY UPON SPECIFIC FINDINGS OF FACT ESTABLISHING A COMPELLING NEED FOR CONFIDENTIALITY. New York law and the First Amendment to the United States Constitution each provides the public with an affirmative, enforceable right of access to judicial records. Both systems strongly safeguard the values of transparency and accountability in the judicial process through stringent procedural requirements. After the issuance of the trial court’s Sealing Order, the scheduling order and certain discovery served by Mr. Klar were filed publicly. 6 6 Both place heavy burdens on parties seeking to seal judicial records to ensure that the public’s right of access is not inappropriately surrendered to the desires of litigants. New York law protects the public’s right of access to judicial records through Section 216.1 of the Uniform Rules for New York Trial Courts, which reads, in relevant part: (a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. . . . Id. (emphasis added). Under Section 216.1, judicial records are presumptively open, and the party seeking to have a judicial record sealed bears the burden of demonstrating exceptional “good cause”—i.e., compelling circumstances to justify restricting public access. Mosallem v. Berenson, 76 A.D.3d 345, 348-49, 905 N.Y.S.2d 575 (1st Dep’t 2010); Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 502, 835 N.Y.S.2d 595 (2d Dep’t 2007) (“The party seeking to seal documents must demonstrate compelling circumstances . . . [C]onfidentiality is the exception.”); Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 8, 711 N.Y.S.2d 419 (1st Dep’t 2000) (“New York’s presumption of public access is broad.” Section 216.1 “properly burden[s] the party seeking to have a sealed record remain sealed.”); Coopersmith v. Gold, 156 Misc. 2d 594 (Sup. Ct. Rockland 7 Cty. 1992) (“[T]here is a presumption of openness embodied in the rule and where good cause has not been demonstrated, the records should not be sealed.”). “A finding of ‘good cause’ presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant, and that no alternative to sealing can adequately protect the threatened interest.” Mancheski, 39 A.D.3d at 502 (citations omitted). New York’s strong presumption of public access to court proceedings and records stems from both this state’s own tradition of openness and is also derived from the safeguards of the First Amendment. See Associated Press v. Bell, 70 N.Y.2d 32 (1987); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Press-Enter. Co. v. Superior Court (“Press-Enter. II”), 478 U.S. 1 (1986). Indeed, “there may be no stronger First Amendment interest in freedom of the press than that of an open court system, for the press and public to see that persons are treated properly and fairly by the courts.” In re Astor, 13 Misc. 3d 1203(A), 824 N.Y.S.2d 755 (Sup. Ct. N.Y. Cty. 2006); see also Mosallem, 76 A.D.3d at 348-49; Danco, 274 A.D.2d at 7 (reviewing the public’s First Amendment interests in access to court proceedings). Equally important, the First Amendment, as the U.S. Supreme Court has said time and again, presumptively requires open courts and court records to ensure the “appearance of fairness [that is] so essential to public confidence in the system.” 8 Press-Enter. Co. v. Superior Court (“Press-Enter. I”), 464 U.S. 501, 508 (1984). The media’s access to judicial proceedings and records keeps the public informed and helps instill public confidence in both the process and the results of trials. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559-60 (1976); Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978). “The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978). Because of the heavy presumption of openness, the First Amendment imposes a heavy burden on those who seek to limit public access. See Globe Newspapers, Co. v. Superior Court, 457 U.S. 596, 606 (1982) (“the State’s justification in denying access must be a weighty one”); Lugosch v. Pyramid Co., 435 F.3d 110, 126 (2d Cir. 2006) (First Amendment “gives rise to a higher burden on the party seeking to prevent disclosure than does the common law presumption”). As the Supreme Court explained in Globe Newspapers: “Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” 457 U.S. at 606-07 (1982). 9 II. THERE IS NO COMPELLING CIRCUMSTANCE OR GOOD CAUSE FOR ENTERING THE SEALING ORDER. Here, the trial court erred by issuing the overly broad Sealing Order that sealed almost all of the documents filed in this matter, without making any of the specific on-the-record findings required under New York law and the First Amendment. Instead, the trial court simply held, in conclusory fashion, that the documents should be sealed because they reference the separation agreement, the relationship between Mr. O’Reilly and Ms. McPhilmy, and the care and visitation of their children, or that they had a “close connection to the matrimonial action.” (See R. at 8-11.) The court’s reasoning is nothing more than a description of the documents’ contents. That description does not constitute the specific findings required under the law to establish the compelling circumstances or good cause necessary to overcome the public’s right of access. Mr. O’Reilly is a powerful, high-profile public figure who has engaged the courts of New York to bring claims against his ex-wife and her divorce attorney (who is an officer of the court) of fraud. (See R. at 17-24.) The case for transparency is particularly strong in this litigation, given Mr. O’Reilly’s public positions decrying other plaintiffs as abusing the legal system. The Sealing Order should be vacated. 10 1. The Sealing Order Was Improperly Entered Without Sufficient Factual Findings to Support It. It is well-settled that a court lacks authority to seal its records from public view unless “specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enter. II, 478 U.S. at 13-14 (internal quotation marks omitted); In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (“Broad and general findings . . . are not sufficient to justify closure.”); Doe v. New York Univ., 6 Misc. 3d 866, 876 (Sup. Ct. N.Y. Cty. 2004); see also People v. Burton, 189 A.D.2d 532, 535-36, 597 N.Y.S.2d 488, 491 (3d Dep’t 1993) (Because of the presumption favoring access to court records, “[s]pecificity of proof and of judicial findings are required, and a trial court must also consider less drastic alternatives to sealing the records which would adequately serve the competing interests.”) (citations omitted). The Sealing Order cannot stand because the trial court made no factual findings, did not take into consideration the strong presumption in favor of disclosure and openness, and did not consider or engage in an analysis of the public interest in public access to court records. Instead, the trial court incorrectly found that N.Y. Court Rule 202.5 permits the court to seal any and every document in the Klar Action that was filed under seal in the McPhilmy Action or the underlying divorce action, as well as any document that has a “close connection” to the divorce proceeding and any document that even refers to these materials. (See R. at 8-11.) 11 For example, under the Sealing Order, the following documents are among those sealed in their entirety: • Correspondence between counsel in the matrimonial action; • Mr. Klar’s notice of motion to dismiss; • The moving affidavit of Mr. Klar; • The supporting affidavit of Mr. Klar’s counsel; and, • The trial court’s order denying Mr. Klar’s motion to dismiss. See id. The trial court’s reliance on Rule 202.5 to seal these court filings is fundamentally flawed. Rule 202.5 does not provide an independent basis for sealing court records; it does not alter the presumption that tort claims (even tort claims that are related to a dissolved marriage) are presumptively public; and it does not supplant the requirement under Rule 216.1 that the trial court provide a “written finding of good cause” to seal records. See 22 NYCRR § 202.5; see also Applehead Pictures LLC v. Perelman, 80 A.D.3d 181, 6 N.Y.S.3d 19 (1st Dep’t 2010) (in action alleging breach of limited liability company operating agreement, court requires public filing of confidential separation agreement attached to pleadings asserting defenses based on that agreement). To the contrary, Rule 202.5 states that only certain categories of confidential personal information, including documents and testimony sealed in a matrimonial action, may be confidential. But the Rule also directs litigants to omit such information from court filings where possible, and it 12 directs courts to order targeted redaction of only such confidential information. The purpose of the rule is to enable the court to keep as many records as possible open to public inspection. See 22 NYCRR § 202.5.7 Here, the rule plainly does not support the trial court’s wholesale order to seal almost all the records in this case simply because they have a “connection to the matrimonial action.” Further, there is nothing in the record on appeal that shows that the trial court relied on any other statutes to support sealing or that the court made any specific, factual findings to demonstrate that sealing is necessary to protect a compelling interest. Since the trial court did not make an adequate factual basis for sealing documents in this case, the Sealing Order should be reversed and vacated. 2. None of the Other Justifications Provided by Mr. O’Reilly Would Support Sealing Court Records Under These Circumstances. None of the other reasons that Mr. O’Reilly identified in the trial court—either in his request that the court seal the proceedings or his opposition to Mr. Klar’s request to publicly file documents—would justify sealing the court record. And, in As set forth above, in relevant part, Rule 202.5(e) states that “[t]he parties shall omit or redact confidential personal information in papers submitted to the court for filing” and that “the court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of section 216.1 of this Title that any sealing be no broader than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an unredacted copy under seal for in camera review; or determine that information in a particular action is not confidential.”) 7 13 any event, the record does not reflect that the trial court relied on those reasons asserted by Mr. O’Reilly in issuing the Sealing Order. (See R. at 4-12.) In requesting that the trial court seal these proceedings, Mr. O’Reilly argued that sealing was appropriate because Mr. O’Reilly and Ms. McPhilmy had agreed, in connection with their divorce proceeding, that any future litigation concerning their settlement agreement would be confidential. (See R. at 60-61.) In fact, the trial court lacked authority to defer Mr. O’Reilly and Ms. McPhilmy’s private agreement to seal the settlement agreement in this case. Under New York law, courts may not rubberstamp the agreements of parties to seal the record in their litigation. See Mosallem, 76 A.D.3d at 350 (1st Dep’t 2010) (“Merely because some of the documents were marked ‘confidential’ or ‘private’ ‘is not controlling on the court’s determination whether there is good cause to seal the record.’ This Court has generally been reluctant to allow the sealing of court records and has authorized sealing only in strictly limited circumstances.”); In re Will of Hofmann, 284 A.D.2d 92, 94, 727 N.Y.S.2d 84, 85 (1st Dep’t 2001) (“While there is a strong public interest in encouraging the settlement of private disputes, conclusory claims of the need for confidentiality of settlement agreements are insufficient to seal a record.”). See also Daily News L.P. v. Wiley, 126 A.D.3d 511, 515, 6 N.Y.S.3d 19, 24 (1st Dep’t 2015) (“We remind the trial court that it cannot close the courtroom or seal evidence and 14 transcripts merely because the parties are consenting to same and the case has obtained notoriety.”). Further, Mr. O’Reilly has incorrectly argued that settlement agreements and other records from the McPhilmy Action should be sealed in their entirety in this action to protect minor children. (See R. at 110-111.) This argument mischaracterizes applicable law. Documents concerning minor children may be sealed only where specific assertions of harm are made, and even then, only to the extent necessary to avoid that specific harm. For example, in In re Diaz, 2015 WL 223608 (Surr. Ct. N.Y. Cnty. Jan. 13, 2015), a case cited by Mr. O’Reilly, the court required that the moving party identify specific harms before considering a request to seal a minor’s record, made specific on the record findings about the harm of disclosing certain information, and even then, imposed only a “limited sealing of the portions of the record which contain the infant’s home address and social security number and the financial and business details in the contracts.” Id. at *2. Here, in contrast, Mr. O’Reilly has made only vague and generalized allegations of harm to his minor children, which are insufficient to support the trial court’s extensive Sealing Order. Moreover, the trial court certainly made no factual findings of harm (and therefore did not cite to any findings of harm) in its Sealing Order. 15 3. The Sealing Order Is Not Narrowly Tailored. Even where sealing is warranted because it is “essential to preserve higher values,” like the right to a fair trial, any order that limits public access must be no broader than necessary to preserve those values. See, e.g., Press-Enter. II, 478 U.S. at 13-14. The court must adopt narrowly tailored means to protect a compelling interest rather than engage in the wholesale denial of the public’s right of access. Id.; Danco Labs, 274 A.D.2d at 8-9 (the trial court’s “failure to target precise areas where redaction should occur violate[s] rule 216.1[a]. . . . In camera review and appropriate redaction is a valid method of protecting [confidential information] when a movant seeks to seal an entire case file.”). Here, the Sealing Order is insufficiently tailored. The trial court sealed nearly all of the documents filed in the case, including correspondence between counsel, Mr. Klar’s motion to dismiss the Complaint and the trial court’s order denying that motion. The trial court further sealed those documents in their entirety. Nowhere in the Sealing Order does the trial court even address whether a more narrow sealing order—including through the use of redactions as directed by Rule 202.5—could appropriately address any need for confidentiality. Accordingly, this broad Sealing Order is impermissible under the First Amendment and New York law. 16 4. The Trial Court Failed to Take into Account the Substantial Public Interest in the Records and Proceedings. The trial court also erred in failing to consider the interests of the public before sealing any records. See Uniform Rules for New York Trial Courts, Section 216.1. Although Gizmodo Media Group does not bear the burden to justify its request for full access to these presumptively public proceedings, 8 the public’s legitimate interest in the underlying litigation is crystal clear. The public also has a significant interest in understanding allegations made against officers of the court. Mr. Klar stands publicly accused in this lawsuit of committing a fraud on the court. The public has a substantial interest in understanding whether there is any merit to Mr. O’Reilly’s allegations, and Mr. Klar has a substantial interest in publicly responding to those allegations. The Sealing Order severely infringes on those interests. There is also a substantial public interest in allowing the public to fully assess the credibility of a political and social commentator’s positions. As relevant here, Mr. O’Reilly has publicly criticized the use of the legal system by others and has 8 Courts recognize that the public generally has an interest in the transparency of all court proceedings. See Matter of Conservatorship of Brownstone, 191 A.D.2d 167, 168, 594 N.Y.S.2d 31 (1993) (“The statutory and common law of this State have long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly.”). 17 advocated for limiting access to the justice system through tort reform.9 Mr. O’Reilly has also frequently taken public positions on sexual morality and so-called “family values.” The public has an interest in understanding how his personal use of the judicial system to pursue fraud claims against his ex-wife and her lawyer may diverge from the public statements he has made to a very large audience.10 Allowing Mr. O’Reilly to litigate in secret interferes with the public interest in fairly evaluating his positions. Under the First Amendment and New York law, the public has a presumptive right—and in this particular case, a very significant interest—in full access to these records and to all courtroom proceedings. The trial court did not consider the public interest at all before entering a sweeping Sealing Order. Therefore, the record before this Court presents no lawful justification whatsoever to keep the court’s files sealed. See Erik Wemple, “Bill O’Reilly: Poor public figure,” The Washington Post (Nov. 22, 2011), available at https://www.washingtonpost.com/blogs/erik-wemple/post/bill-oreilly-poor-publicfigure/2011/11/21/gIQAFwzUlN_blog.html?utm_term=.86f431e53ac2. 10 Since Gizmodo Media Group’s initial filings in the McPhilmy and Klar Actions, Mr. O’Reilly’s personal and professional conduct—including multiple allegations of sexual harassment—have been the subject of extensive news coverage. See, e.g. Prachi Gupta, “Murdochs Consider Taking Alleged Serial Sexual Harasser Bill O’Reilly Off the Air,” Jezebel (April 18, 2017); Lauren Evans, “Fox Will Investigate Sexual Harassment Claims Against Bill O’Reilly,” Jezebel (April 10, 2017); Emily Steel and Michael S. Schmidt, “Bill O’Reilly Thrives at Fox News, Even as Harassment Settlements Add Up,” The New York Times (April 1, 2017). Following the disclosure that Mr. O’Reilly reached private settlements with multiple women who had accused him of harassment, Fox News announced that he would no longer appear on the network program The Factor, which he had hosted for decades. Id. See also Emily Steel and Michael S. Schmidt, “Bill O’Reilly Settled New Harassment Claim, Then Fox Renewed His Contract,” The New York Times (October 21, 2017) (reporting a sixth settlement for $32 million). Available at https://mobile.nytimes.com/ 2017/10/21/business/media/bill-oreilly-sexual-harassment.html. 9 18 CONCLUSION For the foregoing reasons, Gizmodo Media Group respectfully requests that this Court (1) reverse and vacate the trial court’s May 2, 2017 Order, (2) issue an order directing that all records in O’Reilly v. Klar, including the July 18, 2017 order denying Mr. Klar’s motion to dismiss the Complaint, be unsealed, and (3) award Gizmodo Media Group the costs and disbursements of this proceeding. In the alternative, Gizmodo Media Group respectfully requests that this Court order the trial court to (a) make specific factual findings that demonstrate good cause or compelling circumstances for the sealing of limited, specified portions of documents, (b) detail its consideration of the public interest, (c) explain why the sealing is narrowly tailored, (d) make a showing that reflects that the trial court has explored and rejected alternatives, (e) unseal the remainder of the records and proceedings, and (f) award Gizmodo Media Group the costs and disbursements of this proceeding. 19 Dated: November 22, 2017 Respectfully submitted, CHRISTINE N. WALZ HOLLAND & KNIGHT LLP 31 West 52nd Street New York, New York 10019 (212) 513-3200 Co-Counsel: CHARLES D. TOBIN (admitted pro hac vice) BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006-1157 (202) 661-2218 Attorneys for Intervenor-Appellant Gizmodo Media Group, LLC 20 CERTIFICATE OF COMPLIANCE This computer generated brief was prepared using a proportionally spaced typeface. Name of typeface: Times New Roman Point size: 14 Point Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents and certificate of compliance is 4,829. 73168 Client: HOLLAND NYSC AD2 Certificate of Compliance 00:00 xyz 11/21/17