The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAYMOND LAMAR BROWN, JOHN No. 20-cv-7907-NLH-AMD
CLARK, DESMOND ROGERS, TODD
FORD, JR. and CARLOS SOLER, OPINION AND ORDER
individually, and on 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
WHEREAS, presently before the Court is the Parties’ joint
Motion to Seal (ECF 584); and
WHEREAS, 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); and
WHEREAS, “the strong common law presumption of access must
be balanced against the factors militating against access.” Id.
at 165; and
WHEREAS, 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); and
WHEREAS, 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)); and
WHEREAS, 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); and
WHEREAS, Local Civil Rule 5.3 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); and
WHEREAS, during the course of this extensive litigation
there have been a significant number of documents filed under
temporary seal; and
WHEREAS, this Court has undertaken, with the cooperation of
the Parties, to resolve which documents should be unsealed and
which should be converted to permanent seal; and
WHEREAS, as part of this process, the Honorable Ann Marie
Donio, United States Magistrate Judge, issued an Order on
October 26, 2023 resolving a Motion to Seal. (ECF 592); and
WHEREAS, this Court subsequently issued an Opinion and
Order on November 31, 2023 resolving two additional Motions to
Seal (ECF 601 and 602); and
WHEREAS, at a hearing held on January 16, 2024 on the
Parties’ Motion for Preliminary Approval of Settlement, this
Court asked to Parties to review the docket and confirm that all
of the sealing questions were resolved (ECF 618); and
WHEREAS, upon conducting this review, the Parties filed a
Joint Motion to Seal pursuant to Local Rule 5.3 (ECF 619); and
WHEREAS, this Court commends the Parties for their
compliance with the local rule; and
WHEREAS, the Parties identified four filings that remain
under temporary seal and unaddressed by the prior sealing
Orders, which include ECF 306-1, 405, 560, and 581; and
WHEREAS, the Parties agreed that two of these documents
should be released to the public record, ECF 306-1 and ECF 581;
and
WHEREAS, accordingly ECF 306-1 and 581 will be unsealed;
and
WHEREAS, the Parties seek continued seal of ECF 405, which
is an August 19, 2022, Letter from Susana Cruz Hodge, Esq. to
the Honorable Ann Marie Donio, U.S.M.J., as the Parties explain
that it “was filed in error and ordered disregarded” (ECF 619-1
at ¶ 5); and
WHEREAS, because this document was to be disregarded by the
Court, it was therefore not relied on during the progress of
this case or the resolution of any issue before the Court, and
accordingly, there is no public interest in the document. In
addition, inclusion on the public docket of a document filed in
error may cause confusion which balances against providing
access; and
WHEREAS, accordingly, this Court will grant a permanent
seal for ECF 405; and
WHEREAS, the Parties seek continued seal of ECF 560, which
includes Exhibits B–Q to Plaintiffs’ Motion for Finding County
Defendants in Civil Contempt, explaining that it “contain[s]
certain materials that include non-public and confidential
information related to settlement negotiation and draft Jail
policies” (ECF 619-1 at ¶ 6); and
WHEREAS, upon review of this document, the Court confirms
the nature of the materials, that is, that it contains emails
between counsel and draft policies written in the process of
resolving this case; and
WHEREAS, in considering the private interest factor under
Local Civil Rule 5.3(c), the Parties have expressed a private
interest in maintaining the confidentiality of their settlement
discussions and corresponding draft policies written in their
efforts to settle this matter and have expressed their interest
in maintaining the confidentiality of information that the
parties have taken substantial efforts to keep confidential (ECF
619-2 at ¶ 6); and
WHEREAS, the private interest factor therefore weighs in
favor of sealing; and
WHEREAS, in considering the public interest factor under
Local Civil Rule 5.3(c), this Court notes that while public has
an interest in reviewing documents submitted in support of a
party’s motion, here the Motion that these exhibits relate to
was not ultimately decided by the Court, but instead resolved as
part of the Parties’ global settlement. As such, the ability to
review the details of these draft jail policies would not assist
the public with understanding the Court’s analysis in this case;
and
WHEREAS, the public interest factor is therefore neutral;
and
WHEREAS, 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); and
WHEREAS, the Parties argue that “because the exhibits are
and/or concern draft Jail policies, disclosure 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” (ECF 619-1 at ¶ 10); and
WHEREAS, this Court notes that the Parties have undergone
significant efforts to resolve this case and agree to a policy
within Cumberland County Jail that addresses Plaintiffs’
constitutional claims and concerns in this case. Now that the
Parties have done so and agreed, the potential confusion of
disclosure of the numerous draft policies filed at ECF 560 would
undermine the clarity of the agreed upon policy that is in place
thanks to the Parties’ painstaking efforts to resolve this
matter; and
WHEREAS, the injury interest factor therefore weighs in
favor of sealing; and
WHEREAS, finally, the Court considers under Local Civil
Rule 5.3(c) whether less restrictive alternatives are available;
and
WHEREAS, the Court finds that there are no less restrictive
alternatives given that the documents the Parties have requested
to remain sealed consist entirely of draft policies or
communications about drafts. This factor, therefore, supports
sealing; and
WHEREAS, this Court finds that balancing the factors under
Local Civil Rule 5.3(c), the Parties have met their burden of
demonstrating that the proposed documents remain sealed; and
WHEREAS, for these reasons, and for the reasons set out in
this Court’s November 21, 2023 Opinion addressing similar
documents (ECF 601) the Court will grant a permanent seal for
ECF 560;
THEREFORE, it is on this 1st day of February, 2024,
ORDERED that the Motion to Seal be, and the same hereby is,
GRANTED; and
IT IS FURTHER ORDERED that the Clerk of the Court shall
maintain under seal the materials located at ECF 405 and ECF
560; and
IT IS FURTHER ORDERED that the Clerk of the Court shall
unseal ECF 306-1, and ECF 581.
s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.