Opinion

BROWN v. WARREN

Court
District Court, D. New Jersey
Filed
Nov 21, 2023
Cited by
0 cases
Authority
More cited than 25.6%

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

RAYMOND LAMAR BROWN, JOHN CLARK, No. 20-cv-7907-NLH-AMD

DESMOND ROGERS, TODD FORD, JR. and

CARLOS SOLER, individually, and on OPINION

behalf of others similarly

situated,

Plaintiffs,

v.

EUGENE CALDWELL, in his official

capacity as Warden, Cumberland

County Department of Corrections,

and CUMBERLAND COUNTY, NEW JERSEY,

et al.,

Defendants.

APPEARANCES:

KAREN A. CONFOY, ESQ.

PAUL W. KALISH, ESQ.

JEFFREY M. POLLOCK, ESQ.

FOX ROTHSCHILD LLP

PRINCETON PIKE CORPORATE CENTER

997 LENOX DRIVE

LAWRENCEVILLE, NJ 08648

Counsel for Plaintiffs

VICTOR A. AFANADOR

JOSEPH J. DEPALMA

SUSANA CRUZ HODGE

ANTHONY DAVID ZATKOS, JR

LITE DEPALMA GREENBERG & AFANADOR, LLC

570 BROAD STREET

SUITE 1201

NEWARK, NJ 07102

Counsel for County Defendants

JOHN-PAUL MADDEN, ESQ.

MADDEN & MADDEN

108 KINGS HIGHWAY EAST, SUITE 200

P.O. BOX 210

HADDONFIELD, NJ 08033-0389

Counsel for Charles Warren and Eugene Caldwell

MARY LOU GARTY

THE GARTY LAW FIRM, LLC

712 EAST MAIN STREET

SUITE 2A

MOORESTOWN, NJ 08057

Counsel for Shane Zanes

MICHAEL L. TESTA, ESQ.

TESTA HECK TESTA & WHITE, PA

424 LANDIS AVENUE

VINELAND, NJ 08360

Counsel for Loren Joynes

WILLIAM J. HUGHES, JR., ESQ.

PORZIO, BROMBERG & NEWMAN, P.C.

100 SOUTHGATE PARKWAY

P.O. BOX 1997

MORRISTOWN, NJ 07962-1997

Special Master

HILLMAN, District Judge

Before the Court are two joint Motions to Seal. For the

reasons expressed below, the motions will be granted in part and

denied in part.

I. BACKGROUND

As this matter has a long and procedurally complex history

of which the parties are aware, the Court will limit its present

discussion of the history to the information necessary to

resolve the pending motions.

The first Motion to Seal pending before this Court relates

to documents filed as part of briefing on a Motion to Enforce

Settlement Agreement. The Motion to Enforce (ECF 484) and

supporting brief (ECF 485) were filed on March 30, 2023. On

April 21, 2023, Defendants also filed a Motion to Stay Pending

the Court’s Determination of the County Defendants’ Motion to

Enforce a Settlement Agreement (ECF 499) and supporting brief

(ECF 500). On May 1, 2023, Plaintiffs filed their response to

both the Motion to Enforce and Motion to Stay (ECF 504) as well

as a supporting declaration (ECF 505). On May 8, 2023,

Defendants filed their reply. (ECF 518). On May 17, 2023, this

Court denied the Motion. (ECF 521). On June 22, 2023, the

parties filed a joint Motion to Seal, seeking to have the

filings related to this motion permanently sealed. (ECF 554).

The second Motion to Seal pending before this Court was

filed on August 17, 2023. (ECF 571). This Motion seeks to keep

sealed or file redacted versions of documents filed related to a

pending Motion for Contempt (ECF 491 and ECF 559). (ECF 571-2

at ¶ 3).

Relevant to the history of sealing in this matter, the

Honorable Ann Marie Donio, United States Magistrate Judge,

issued an Order on October 26, 2023 resolving a third Motion to

Seal (ECF 584). (ECF 592). Throughout the history of this

case, an inordinate number of filings have been filed under

seal. On July 5, 2023, this Court issued an Order to Show Cause

why many of these documents filed under seal without a clear

justification should not be unsealed. (ECF 563). In response,

the parties filed a joint Motion to Seal, setting forth

explanations for why certain of these documents should remain

sealed. (ECF 584). Judge Donio granted in part and denied in

part this Motion to Seal. (ECF 592). Many documents were

unsealed upon the agreement of the parties, and additional

documents were unsealed pursuant to Judge Donio’s ruling.

This Court will now resolve the two Motions to Seal still

pending, which will resolve all the remaining temporary sealing

issues in this matter at present.

II. MOTION TO SEAL STANDARD

It is well-established that there is a “common law public

right of access to judicial proceedings on records.” In re

Cendant Corp., 260 F.3d 183, 192 (3d Cir.) (citation omitted).

Ordinarily, documents filed with the Court or utilized in

connection with judicial proceedings are part of the public

record with a presumptive right of public access. Leucadta v.

Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993).

In some instances, “the strong common law presumption of access

must be balanced against the factors militating against access.”

Id. at 165. When a party files a motion to seal, that party

must demonstrate that good cause exists for protection of the

material at issue. Securimetrics, Inc. v. Iridian Techs., Inc.,

2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006). A party

demonstrates good cause by making a “particularized showing that

disclosure will cause a ‘clearly defined and serious injury to

the party seeking closure.’” Id. (quoting Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). The threshold

for sealing is higher where the case involves a public entity or

official or a matter of public concern. Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994).

In this District, Local Civil Rule 5.3 governs motions to

seal or otherwise restrict public access to materials filed with

the Court and in judicial proceedings. To place a docket entry

under seal, the Rule requires that the motion to seal must be

publicly filed and describe: “(a) the nature of the materials or

proceedings at issue, (b) the legitimate private or public

interests which warrant the relief sought, (c) the clearly

defined and serious injury that would result if the relief

sought is not granted, and (d) why a less restrictive

alternative to the relief sought is not available.” L. Civ. R.

5.3(c)(2). The party moving to seal must submit a proposed

order that contains proposed findings of fact and conclusions of

law. L. Civ. R. 5.3(c)(3).

The clear purpose of this rule is to place the burden on

the parties to justify, under a rigorous standard, the sealing

of materials that otherwise invoke the presumption of public

access. Sealing should be the overwhelming exception not the

prevailing practice in courts funded by taxpayers. The public

has a right to know what goes on in the courts they pay for and

the transparency inherent in that rule enhances public respect

for the courts and aids in holding judges, attorneys and

litigants to the high standards we expect them to uphold.

III. DISCUSSION

a. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this matter

pursuant to 28 U.S.C. § 1331.

b. Motion to Seal Settlement Related Filings

In the first joint Motion to Seal (ECF 554), the parties

review each filing and attachment related to the Motion to

Enforce Settlement Agreement (ECF 484), setting out which

include portions of or reference to confidential settlement

communications. The parties set out two key reasons that the

filings should be permanently sealed. First, they aver that

“[b]ecause this information refers to confidential settlement

communications, Plaintiffs and Defendants would suffer serious

injury if it were to become available to the public. Releasing

this information to the public will jeopardize continuing

discussions.” (ECF 554-1 at ¶ 35). Second, they state that

“the communications concern negotiations over draft Jail

policies, which if disclosed could create confusion in the mind

of members of the Jail population, as well as the general public

about what policies are actually in place in the Jail. Further

discussion about draft policies amongst the Jail population

could be disruptive within the Jail.” (Id. at ¶ 36).

To this end, the parties seek to have the following

documents remain sealed:

1. Declaration of Joseph J. DePalma, Esq., in Support of

Motion to Enforce a Settlement, and Exhibits A, B, D, E, and F

(ECF 485-1);

2. Memorandum of Law in Support of Defendants’ Motion to

Enforce a Settlement (ECF 485);

3. Brief on Behalf of Plaintiffs in Opposition to County

Defendants’ Motion to Enforce a Settlement Motion for a Stay

(ECF 504);

4. Plaintiffs’ Exhibits C, D, E, F, G, H, I, and J to the

Brief on Behalf of Plaintiffs in Opposition to County

Defendants’ Motion to Enforce a Settlement and Motion for a Stay

(ECF 504-1);

5. Defendants’ Reply Brief in Further Support of Motion

to Enforce Settlement and Motion to Stay (ECF 518);

6. Exhibits G and H to Declaration of Joseph J. DePalma,

Esq., in Support of Motion to Enforce a Settlement (ECF 518-1).

The parties have advised that the following documents may

be unsealed:

1. Exhibit C to Declaration of Joseph J. DePalma, Esq.,

in Support of Motion to Enforce a Settlement (ECF 485-1);

2. Memorandum of Law in Support of Defendants’ Motion to

Stay (ECF 500);

3. Plaintiffs’ Exhibits A, B, K, L, and M to the Brief on

Behalf of Plaintiffs in Opposition to County Defendants’ Motion

to Enforce a Settlement and Motion for a Stay ECF (504-1);

4. Exhibit I to Declaration of Joseph J. DePalma, Esq.,

in Support of Motion to Enforce a Settlement (ECF 518-1).

First, the Parties describe the nature of the materials as

“Confidential Information” that “reveals, contains, and/or

reflects sensitive communications concerning ongoing settlement

negotiations between Plaintiffs and the County Defendants.”

(ECF 554-2 at 2 ¶ 2). This information is currently

“unavailable to the public.” (Id.). The nature of the

materials here does not, in and of itself, require sealing.

Although settlement agreements and negotiations are generally

confidential, filing a settlement agreement with the Court risks

that confidentiality. “Any settlement agreement filed with the

Court or incorporated into an order shall, absent an appropriate

showing under federal law, be deemed a public record and

available for public review.” L. Civ. R. 5.3(d)(2).

In considering the private interest factor under Local

Civil Rule 5.3(c), the Court notes that the parties are

presently engaged in continued settlement discussions. The

Parties aver that the information is presently unavailable to

the public and “the parties have taken substantial efforts to

ensure that all such confidential information is maintained as

confidential.” (ECF 554-2 at 3). The Parties’ conduct in

maintaining confidentiality is relevant, and a party may have a

significant privacy interest when it “would not have entered

into the settlement agreement[ ] but for [an] assurance of

confidentiality.” See LEAP Sys., Inc. v. MoneyTrax, Inc., 638

F.3d 216, 222 (3d Cir. 2011) (emphasis in original).

However, the Third Circuit has stated that it is “more

likely to require disclosure when ‘a party benefitting from the

order of confidentiality is a public entity or official,’ or

when the judicial record ‘involves matters of legitimate public

concern.’” Id. (quoting Pansy v. Borough of Stroudsburg, 23

F.3d 772, 778, 788 (3d Cir. 1994)). In this regard,

“‘[c]ircumstances weighing against confidentiality exist when

confidentiality is being sought over information important to

public health and safety, and when the sharing of information

among litigants would promote fairness and efficiency.’” Id.

(quoting Pansy, 23 F.3d at 777). Here, this case is a matter of

public interest and safety. How a society treats its prisoners

is one measure of a just legal order.

That said, disclosure of a draft settlement agreement in

this class action would not promote efficiency and other

important principles inherent in the litigation process.

Rather, it may distract from the ultimate agreement the parties

may enter into or the ultimate result of the proceedings.

Therefore, this factor weighs in favor of sealing at this time.

Moreover, in considering the public interest factor under

Local Civil Rule 5.3(c), the Court recognizes that “the public’s

common law right of access to judicial proceedings and records

... ‘is beyond dispute.’” Littlejohn v. Bic Corp., 851 F.2d

673, 677-78 (3d Cir. 1988) (quoting Publicker Indus., Inc. v.

Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984)). The Parties argue

that it is in the public interest to “not burden[] litigants’

access to the Court by requiring public disclosure of

confidential information as a condition of litigating their

rights.” (ECF 554-2 at 2–3 ¶ 4). The Parties aver that there

is no public interest that warrants disclosure. (Id.). The

Parties’ arguments here are general and broad. In order to

establish good cause for sealing, the movants must demonstrate a

particularized reason for sealing. A general burden on

litigants and even a general public policy in favor of

settlement is not enough.

As the Third Circuit has stated, “‘the court’s approval of

a settlement or action on a motion are matters which the public

has the right to know about and evaluate.’” LEAP Sys., Inc. 638

F.3d at 220 (quoting Bank of Am. Nat’l Trust & Sav. Ass’n v.

Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986)).

“Thus, ‘settlement documents can become part of the public

component of a trial’ under either of two circumstances: (1)

‘when a settlement is filed with a district court;’ and (2)

‘when the parties seek interpretative assistance from the court

or otherwise move to enforce a settlement provision.’” Id.

(quoting Enprotech Corp. v. Renda, 983 F.2d 17, 20 (3d Cir.

1993)). Although “this presumption is not absolute and may be

rebutted[,]” Tatum v. Chrysler Grp., LLC, No. 10-4269, 2013 WL

12152408, at *2 (D.N.J. Aug. 19, 2013) (noting that a “[c]ourt

may deny public access to judicial records if a movant can show

good cause for keeping documents under seal”), if parties “ask a

judge to decide their dispute, the public should have access to

the information forming the basis of the judge’s decision unless

shown good cause.” Brock v. Vanguard Grp., No. 16-6281, 2017 WL

11507659, at *4 (E.D. Pa. July 27, 2017).

Here, the Parties did not seek the Court’s assistance in

interpreting the terms of the agreement, but instead sought the

Court’s assistance in determining if an agreement had been

reached. Thus, the public interest in the proceedings does not

necessarily extend to the substance of the settlement agreement.

Therefore, while the Parties’ argument that settlement

agreements should remain confidential is broad, the particular

facts of the Motion to Enforce here do not weigh against

granting the Motion to Seal. This factor is neutral.

Turning to the injury factor of Local Civil Rule 5.3(c)(3),

the Court may seal information upon a “particularized showing

that disclosure will cause a ‘clearly defined and serious injury

to the party seeking closure.’” Securimetrics, Inc. v. Iridian

Techs., Inc., No. 03-4394, 2006 WL 827889, at *2 (D.N.J. Mar.

30, 2006) (quoting Pansy, 23 F.3d at 786). “‘[B]road

allegations of harm, unsubstantiated by specific examples or

articulated reasoning[,]” will not suffice to seal a judicial

record. Id. “[F]ailure to put forth a specific and clearly

defined risk of injury is fatal to any motion to seal.” Reilly

v. Vivint Solar, Nos. 18-12356, 16-9446, 2021 WL 248872, at *5

(D.N.J. Jan. 26, 2021) (rejecting as “conclusory” defendant’s

“assertion that the very nature of the information in question

would put [Defendant] at [a] competitive disadvantage in the

solar industry and cause financial harm” and stating that “[t]he

allegedly obvious and inherent harm that would come from public

access to these documents may be clear to Defendant, but it is

not clear to the Court, and it is not the Court’s duty to

manufacture such an explanation on its own”).

The Parties state that unsealing would cause “immediate

harm to ongoing settlement discussions and a threat to the

security of the Jail through disclosure of information related

to the development of policies and procedures within the Jail.”

(ECF 554-2 at 3 ¶ 5). Again, the Parties argument that

unsealing would harm the ongoing settlement negotiations is

vague. (ECF 554-1 at 7 ¶ 35). That said, the Parties argument

that making a draft settlement agreement or draft terms public

may “create confusion in the mind of members of the Jail

population, as well as the general public about what policies

are actually in place in the Jail and further discussion about

draft policies amongst the Jail population could be disruptive

within the Jail” presents a specific injury that may result from

unsealing the documents here. (Id. at 7 ¶ 36). The Court finds

that this factor weighs in favor of at least continued sealing.

Finally, the Court considers under Local Civil Rule 5.3(c)

whether less restrictive alternatives are available. The Court

finds that there are no less restrictive alternatives given that

the documents the Parties have requested to remain sealed

consist, in large part, of the material terms of the working

settlement agreement, rendering redaction an ineffective

alternative. This factor, therefore, supports sealing of the

settlement transcript.

Balancing the factors under Local Civil Rule 5.3(c), and

having reviewed the documents outlined above, the Court finds

that the Parties have met their burden of demonstrating that the

proposed documents remain sealed at this time. If the parties

reach, or fail to reach, a final settlement, the Court may

revisit this issue on its own motion or by motion by any person

or entity with standing to petition the Court. To the extent

that certain documents and exhibits that will remain sealed are

filed in the same docket entry as other documents and exhibits

that are to be unsealed, this Court will order that redacted

versions of the full docket entries be filed. This will be set

out further in this Court’s corresponding order. As for the

documents currently filed under temporary seal, but exempted

from the parties’ request for permanent seal, such documents

will be unsealed.

c. Motion to Seal Filings Related to Motion for Contempt

In the parties’ second pending Motion to Seal, the parties

seek to either maintain the seal or file redacted versions of

documents filed as part of the briefing for a Motion for

Contempt. The parties aver that these documents include

“personal information with respect to inmates, personnel within

the jail, and other parties” including “dates of birth, social

security numbers, and personal phone numbers. (ECF 571-2 at 3 ¶

2). In addition, they state that the documents include

information about “inmates, including discipline records and

safety protocols at the Jail.” (Id. at 3 ¶ 3). Finally, the

parties also argue that certain documents contain discussion

about draft policies that could cause confusion within the Jail

population. (Id. at 6 ¶ 7). This Court will address each of

these categories of documents in turn.

The parties request that the following documents be

maintained under seal:

1. Exhibit B to Letter from Karen A. Confoy (ECF 298 at

13–27);

2. Letter from Special Master William Hughes (ECF 342);

3. Fourth Report of Special Master (ECF 342-1);

4. Letter from Plaintiffs re: Fourth Report of Special

Master (ECF 348);

5. Letter from Defendants re: Fourth Report of Special

Master (ECF 349);

6. Appendix H to Forensic Report (ECF 468-1);

7. Exhibit 24 to Motion for Contempt (ECF 493).

The parties aver that the sensitive information in the

following documents should be redacted:

1. Exhibit A to Brief on Behalf of Defendant Shane Zanes,

in Opposition to the Charge of Contempt of Court, Forensics

Report (ECF 462-1);

2. Defendant Warren’s Response to Order to Show Cause

(ECF 463);

3. Exhibit A to Defendant Warren’s Response to Order to

Show Cause, Certification of Charles Warren (ECF 463-1);

4. Plaintiffs’ Response in Support of the Court’s Order

to Show Cause (ECF 464);

5. Exhibit A to Roberto Ortiz’ Response to Order to Show

Cause, Forensic Report (ECF 465-1);

6. Forensic Report (ECF 468);

7. Appendix L to Forensic Report (ECF 468-2);

8. Appendix S to Forensic Report (468-3);

9. Exhibit 19 to Forensic Report (ECF 468-8);

10. Exhibit B to Defendant Loren Joynes’ Response to Order

to Show Cause (ECF 469-1);

11. Statement of Material Facts in Support of Motion for

Contempt (ECF 492);

12. Exhibit A to Defendant Shane Zanes’ Brief in

Opposition to Motion for Contempt, Forensic Report (ECF 514-3);

13. Exhibit A to Defendant Roberto Ortiz’s Brief in

Opposition to Motion for Contempt, Forensic Report (ECF 515-1);

14. Exhibit A to Defendant Loren Joynes’ Brief in

Opposition to Motion for Contempt (ECF 517-1).

The parties have advised that the following documents may

be unsealed:

1. Letter from Karen A. Confoy (ECF 235);

2. Response in Opposition to Motion for Reconsideration

(ECF 250);

3. Letter from Karen A. Confoy (ECF 272);

4. Letter from Gregg L. Zeff re transfers (ECF 273);

5. Letter from Gregg L. Zeff re Policy Modification (ECF

306);

6. Letter from Karen A. Confoy (ECF 309);

7. Letter from Susana Cruz Hodge (ECF 363);

8. Letter from William J. Hughes, Jr. re Status

Conference (ECF 367);

9. Fifth Report and Recommendation of the Special Master

(ECF 367-1);

10. Letter from Karen A. Confoy (ECF 385);

11. Proposed Order (ECF 385-1);

12. Letter from Susana Cruz Hodge (ECF 391);

13. Letter from Karen A. Confoy (ECF 393);

14. Letter from William J. Hughes, Jr. re Order (ECF

408);

15. Sixth Report and Recommendation of the Special Master

(ECF 408-1);

16. Letter from Karen A. Confoy (ECF 409);

17. Letter from Karen A. Confoy (ECF 414);

18. Exhibit to Letter (ECF 415);

19. Exhibit to Letter (ECF 415-1);

20. Letter from Karen A. Confoy (ECF 440);

21. Brief on Behalf of Defendant Zanes in response to

Order to Show Cause (ECF 462);

22. Response to Order to Show Cause by Roberto Ortiz (ECF

465);

23. Plaintiffs’ Response to Order to Show Cause (ECF

467);

24. Exhibit 15 to Declaration (ECF 468-4);

25. Exhibit 16 to Declaration (ECF 468-5);

26. Exhibit 17 to Declaration (ECF 468-6);

27. Exhibit 18 to Declaration (ECF 468-7);

28. Exhibit 20 to Declaration (ECF 468-9);

29. Response to Order to Show Cause by Loren Joynes (ECF

469);

30. Exhibit A to Response to Order to Show Cause by Loren

Joynes (ECF 469-1);

31. Exhibit 27 (ECF 493-1);

32. Brief in Support of Motion to Stay (ECF 500);

33. Brief in Opposition to Motion for Contempt filed by

Shane Zanes (ECF 514);

34. Counterstatement of Facts (ECF 514-1);

35. Proposed Order (ECF 514-2);

36. Brief in Opposition to Motion for Contempt filed by

Roberto Ortiz (ECF 515);

37. Proposed Order (ECF 515-3);

38. Brief in Opposition to Motion for Contempt filed by

Loren Joynes (ECF 517).

This Court will first address the documents that the

parties have flagged as including information about inmates that

should be sealed. This includes Exhibit B in ECF 298 (ECF 298

at 12–27), Exhibit S to the Forensic Report (ECF 468-3), and

Exhibit 19 to the Forensic Report (ECF 468-8). First, looking

to the nature of these documents, they include inmate record

reports (ECF 298 at 12–27), text messages between defendants

that include pictures of cells and an inmate identification card

(ECF 468-3), and inmate disciplinary reports (ECF 468-8).

In considering the private interest factors under Local

Civil Rule 5.3(c), the inmates whose information is implicated

have a private interest in maintaining the privacy of their

personal information.

As for public interest factors, the parties cite to

N.J.A.C. § 10A:31-6.10(b), which provides that “[a]n inmate

shall not be permitted to inspect, examine or obtain copies of

documents concerning any other inmate.” They argue that this

statute supports their sealing request, as unsealing the group

of documents here would make information about certain inmates

public. However, looking to the context of this regulation, it

does not support the Parties’ argument.

This provision is part of a regulation that sets out

exceptions to the Open Public Records Act (“OPRA”). Discussing

a similar provision at N.J.A.C. § 10A:22-2.3, the New Jersey

Superior Court, Appellate Division found that the provision

preventing inmates from accessing other inmates’ records is

“directed toward requests by inmates, under OPRA, to inspect or

examine documents in the Department [of Correction]’s possession

pertaining to fellow inmates” and “does not directly address

possession by one inmate of documents pertaining to another.”

Kadonsky v. New Jersey Dep’t of Corr., No. A-1399-12T4, 2015 WL

6558933, at *6-7 (N.J. Super. Ct. App. Div. Oct. 30, 2015).

N.J.A.C. § 10A:31-6.10(b) is similarly targeted at precluding

inmates from utilizing OPRA to obtain records about other

inmates from the Department of Corrections. It does not stand

for the proposition that all inmate records filed with the court

must be sealed.

Moreover, this is a case of public importance and a

compelling public interest in information and documents filed.

That said, the public does not have a significant interest in

personal identifying information like phone numbers of parties

and an identification card of an inmate that happened to be

caught in a photo of a cell.

Turning to the injury factor, Courts have recognized the

injury that follows from disclosure of personal identifying

information. The parties also point to an injury to

“institutional safety and security” implicated by disclosure of

the incident and disciplinary reports. (ECF 571-1 at 35).

Finally, considering whether less restrictive alternatives

are available, the Court notes that for two of these documents

the Parties seek redaction. This is a less restrictive

alternative to sealing. However, for Exhibit B to Letter from

Karen A. Confoy (ECF 298 at 13–27) the Parties seek to seal and

advise that “[r]edaction is not feasible; nearly all information

contained therein would be redacted.” (ECF 571-1 at 16).

Weighing these factors, the Court will rule on each of

these documents individually. First, as to Exhibit B to Letter

from Karen A. Confoy (ECF 298 at 12-27) and Exhibit 19 to the

Forensic Report (ECF 468-8)1, the Court is not persuaded that it

is impossible to redact the sensitive information from the

exhibits. The Court will grant the motion to seal to the extent

that the unredacted versions will remain under seal, but the

parties will be directed to meet and confer to agree upon

redactions for the exhibits. The redactions will keep the

sensitive personal information private while balancing public

access to judicial records. As for Appendix S to Forensic

Report, the proposed redactions balance the private and public

interests and this Court will permit the documents to be filed

in a redacted version as proposed, with the version currently on

the docket maintained under seal.

This Court will next address a series of filings that were

sealed pursuant to an Order of this Court. This includes the

Fourth Report of the Special Master and a series of related

letters (ECF 342, ECF 342-1, ECF 348, ECF 349). Consideration

of any prior orders sealing the materials is a factor for the

Court to consider under Local Civil Rule 5.3(c). As the parties

point out, these documents were filed under seal pursuant to an

Order of this Court. When Special Master Hughes filed his

Fourth Report of Special Master, he requested that it be filed

under seal pending further order of court. (ECF 342).

1 For Exhibit 19, the Parties seek to redact entire pages;

however, the Parties are instructed to narrow this redaction and

redact out only the sensitive information.

Accordingly, the Court issued an order, ordering that “the

Special Master’s Letter and Fourth Report, which have been filed

under seal (ECF 342) shall remain under seal until further order

of the Court.” (ECF 344). The parties explain that Letter from

Karen A. Confoy (ECF 348) and Letter from Susana Cruz Hodge (ECF

349) discuss substantively the content of the Letter and Special

Master’s Report. (ECF 342, ECF 342-1). Accordingly, the

parties seek continued seal for these four documents.

In their briefing, the parties have not discussed any of

the other Local Rule 5.3(c) factors. Upon this Court’s own

review, as with the other Special Master Reports, this Court

does not find any further justification for sealing, if there

ever was justification for sealing these documents in the first

instance. This case is a matter of public concern implicating

constitutional rights of pre-trial detainees, which presents a

strong justification for unsealing.

Moreover, this Court notes that there is another entire

case before it involving the issues presented in these

documents. The documents here discuss a suicide that occurred

within Cumberland County Jail. The inmate is not named;

however, the documents do include reference to other inmates

that provided information about what they witnessed related to

this event. The related case, United States of America v.

Cumberland County and Cumberland County Department of

Corrections, was initiated by complaint filed on May 17, 2023 at

1:23-cv-02655-NLH-AMD and the Court has approved a Final Consent

Order that lays out in painstaking detail an agreement to

improve mental health and other medical services to insure the

Cumberland County Jail meets its constitutional obligations.

See id., Complaint, ECF 1 (alleging a deprivation of

institutionalized persons’ constitutional rights under the Eight

and Fourteenth Amendments caused by “a pattern or practice of

failing to screen and identify incarcerated persons at risk of

self-harm and suicide due to unmedicated opiate withdrawal,

failing to provide sufficient screening to identify incarcerated

persons at risk of self-harm or in need of mental health care

for a serious mental condition, and failing to provide

incarcerated persons with sufficient mental health care.”) and

Consent Decree, ECF 18.

Further, in reaching the comprehensive settlement and

consent decree in that matter the parties disclosed an enormous

amount of information about particular suicides within

Cumberland County Jail and the conditions at the Jail, while

maintaining the privacy rights of the inmates by assigning

pseudonyms. The fact that the documents at issue in this matter

involve a matter of public concern that has already been largely

disclosed to the public in a related matter, weighs in favor of

unsealing. As noted above, there are inmate names and

identification numbers within the documents here. Thus, the

Parties will be instructed to file redacted versions of these

documents removing the identifying information of the witnesses.

The documents will otherwise be unsealed.

The parties seek to keep sealed a document that the parties

aver set outs jail procedures. This is Appendix H to the

Forensic Report (ECF 468-1). The Parties define the materials

sought to be sealed, and explain that “Appendix H contains

confidential jail procedures for Fire Evacuations.” (ECF 571-1

at 31). The Parties assert that the injury from unsealing this

document is “a threat to the security of the Jail through

disclosure of information related to policies and procedures

within the Jail.” (ECF 571-2 at 3). The parties have presented

a private interest in maintaining safety within the jail,

weighing in favor of sealing. As this case is not about fire

evacuation, and the document is not crucial to the understanding

of any issues in the case, the public interest in this document

is limited. This factor is neutral.

Further, the parties defined the injury from disclosure as

a risk to safety within the Jail. The presented injury weighs

in favor of sealing. The Parties advised that redaction is not

feasible. In this instance, the entirety of the document

presents the sensitive information, and as such there is no less

restrictive alternative. Weighing the factors, the Court will

permit this document to be sealed. Because this Appendix is

part of a filing on the docket that includes additional

documents that are not subject to sealing, the parties will be

instructed to file a version of ECF 468-1 with Appendix H

redacted.

The parties seek to keep sealed an exhibit to Plaintiff’s

first Motion for Contempt that includes attorney fee

information. This document, filed at ECF 493 and marked as

Exhibit 24 to ECF 491, is a record of costs and fees from

Plaintiffs’ counsel related to this case (ECF 493). The Parties

advise that “[t]he information was submitted only for the

Court’s review at the Court’s direction and not for public

review. Plaintiffs would suffer serious injury if this

information were to become public information.” (ECF 571-1 at

41). They further advise that there is no less restrictive

alternative. (Id.).

The question of whether there is good cause to seal

attorneys’ invoices depends on the substance of the invoices,

and whether the invoices include confidential, privileged, or

sensitive material. Courts have limited what portions of

invoices should be redacted, finding that the hours, costs, and

fees do not constitute privileged information, while the

descriptions of each line item may include information

appropriately subject to redaction. Argenbright Holdings IV,

LLC v. Gateway Security, Inc. et al., No. 22-00093, 2022 WL

20755426, at *3 (D.N.J. June 28, 2022). The Parties further

aver that the work descriptions include information related to

settlement discussions, which are on-going. The injuries

presented weigh in favor of sealing. In addition, the Parties

have a private interest in maintaining the confidentiality of

their litigation approach and their internal processes. The

public interest is limited where the use of this document is not

related to the substance of litigation, but rather to a question

of attorney’s fees. Overall, the factors weigh in favor of

sealing. This Court will permit this document to remain sealed

subject to further review by the Court as appropriate.

The largest group of documents involved in this Motion to

Seal are documents that the parties agree can be available on

the docket in redacted form, redacting personal information.

Specifically, the personal information at issue in this set of

documents are personal phone numbers. Specifically, for the

following documents the parties seek to file redacted versions,

redacting phone numbers: Exhibit A to Brief on Behalf of

Defendant Shane Zanes, in Opposition to the Charge of Contempt

of Court, Forensics Report (ECF 462-1); Plaintiffs’ Response in

Support of the Court’s Order to Show Cause (ECF 464); Exhibit A

to Roberto Ortiz’ Response to Order to Show Cause, Forensic

Report (ECF 465-1); Forensic Report (ECF 468); Appendix L to

Forensic Report (ECF 468-2); Appendix S to Forensic Report (468-

3)2; Exhibit B to Defendant Loren Joynes’ Response to Order to

Show Cause (ECF 469-1); Statement of Material Facts in Support

of Motion for Contempt (ECF 492); Exhibit A to Defendant Shane

Zanes’ Brief in Opposition to Motion for Contempt, Forensic

Report (ECF 514-3); Exhibit A to Defendant Roberto Ortiz’s Brief

in Opposition to Motion for Contempt, Forensic Report (ECF 515-

1); Exhibit A to Defendant Loren Joynes’ Brief in Opposition to

Motion for Contempt (ECF 517-1).

The individuals have a private interest in the privacy of

their phone numbers. L. CIV. R. 5.2(17) (“[W]hen making any

electronic or Paper Filing with the Court that contains an

individual’s Social Security number, taxpayer-identification

number, or birth date, the name of an individual known to be a

minor, or a financial account number, a party or nonparty making

the filing may include only: (1) the last four digits of the

Social Security number and tax-identification number; (2) the

last four digits of the financial account numbers; (3) the

minor’s initials; [or] (4) the year of the individual’s

birth[.]”); Bah v. Apple Inc., No. 20-15018, 2021 WL 4272829, at

*3 (D.N.J. Sept. 21, 2021); Platt v. Freedom Mortg. Corp., No.

2 This document was already addressed in the section about inmate

information but is included here as well because there is also a

phone number the Parties seek to redact.

10-968, 2013 WL 6499252, at *10 (D.N.J. Dec. 11, 2013). This

rule mirrors Federal Rule of Civil Procedure 5.2.

There is no countervailing public interest. See Bah v.

Apple Inc., No. 20-15018, 2021 WL 4272829, at *3 (D.N.J. Sept.

21, 2021). Thus, both the private and public interest support

sealing. As for the injury factor, injury to an individual

based on disclosure of their personal information is well

established. Accordingly, this factor also weighs in favor of

sealing. There is good cause to redact these phone numbers in

order to protect personal information, and the redaction

proposed is specifically targeted to this purpose and

accordingly is the least restrictive means of accomplishing this

goal. As all the factors weigh in favor of redaction, redaction

will be permitted as proposed for these documents.

There is one document amongst those the parties seek to

redact that is currently filed on the public docket, without

redaction. (ECF 463-1). This document is Exhibit A to

Defendant Warren’s Response to Order to Show Cause and is a

Certification of Defendant Charles Warren. It includes his

phone number.

In general, the Court will not seal information or

documents that have already been filed on the public docket;

however, because there is no public interest in this phone

number and the redaction is so narrowly tailored to the privacy

interest implicated, the Court will permit this document to be

filed in its redacted form and will allow the current version to

be sealed.

As for the documents currently filed under temporary seal,

but exempted from the parties’ request for permanent seal, such

documents will be unsealed.

IV. CONCLUSION

For the reasons expressed above, the Motions to Seal will

be granted in part and denied in part.

An appropriate Order will be entered.

Dated: November 31, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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