move this court to prohibit HRG from using or disseminating the information contained in Table 1 since such information was inadvertently released by the FDA to HRG. Second, Defendant-Intervenors move this court to seal certain portions of the record in this case which contain Table 1; namely, Exhibit C to Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's and Defendant-Intervenors' Motion for a Protective Order (addressing plaintiff's interrogatories) and Exhibit 1 to the Supplemental Declaration of Darrell R. Abernethy, M.D. in Support of Plaintiff's Cross-Motion for Summary Judgment.
HRG counters that this court lacks the power to enter a protective order with regards to the information inadvertently released by the FDA. First, HRG claims that this court is powerless to order it not to disseminate or use the information contained in Table 1 since such an order would violate the First Amendment. Second, HRG claims that this court is powerless to seal the portions of the court record containing Table 1 because such an order would violate the First Amendment and the public's common law right of access to civil proceedings. Lastly, HRG posits that Defendant-Intervenors' inaction, after Defendant-Intervenors should have known Table 1 had been released, acts as a waiver in regards to any confidentiality interest Defendant-Intervenors may have had in the information contained in Table 1. The court disagrees and will enter a protective order.
As an initial matter, the court notes that this protective order is not entered pursuant to Fed.R.Civ.P. 26. The power to grant a protective order under this rule must be exercised in conjunction with information gained or sought through discovery. See Fed.R.Civ.P. 26(c). The court, however, has powers vested upon it that are not derived from any statute or rule. Eash v. Riggins Trucking. Inc., 757 F.2d 557, 561 (3d Cir. 1985). Courts have the "inherent authority to control and preserve the integrity" their judicial proceedings. In re Shell Oil Refinery v. Shell Oil Co., 143 F.R.D. 105, 109 (E.D. La. 1992). In exercising such power, the court is concerned only with "balancing the scales" and protecting its judicial proceedings. Id. at 108-09. The entering of this protective order will further this objective. The court will control the information at issue until it determines whether it qualifies for non-disclosure pursuant to exemption four of FOIA. If the information is not subject to disclosure under exemption four, it should not be publicly available. If, however, the court determines that the information is not covered by exemption four, then the court will order it disclosed. Prior to the court making this determination, however, Table 1 shall not be disseminated.
HRG argues that First Amendment concerns counsel against such an order being issued by this court. HRG relies on the proposition that once the government has put information into the public domain, a court is powerless to stop publication of such information. The cases cited by HRG for this proposition are, however, distinguishable from the circumstances in this case.
All of the cases cited by HRG involve the party that disclosed the information seeking to prevent its dissemination. In contrast, Defendant-Intervenors in the case currently before the court did not disclose Table 1 to HRG; the government did. Moreover, the escape of the information into the public domain in these cases was due to a conscious choice by the party seeking to have the information's dissemination halted. That is qualitatively different than the situation in this case where the government inadvertently inserted Defendant-Intervenors' information into the public domain. Lastly, a protective order prohibiting HRG from disseminating or using the information contained in Table 1 will not infringe on any First Amendment concern, as this order is only temporary in nature and as such, is "not the kind of classic prior restraint that requires exacting First Amendment scrutiny." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 26, 81 L. Ed. 2d 17, 104 S. Ct. 2199 (1984).
HRG also objects to this court sealing the two relevant portions of the pleadings filed thus far which contain Table 1 as an attachment. HRG claims that since Table 1 has already been filed in unsealed court pleadings, this court cannot now seal the relevant portions of these documents because to do so would violate the First Amendment as well as the public's common law right of access to civil proceedings. The court recognizes that there is a presumption of openness with respect to court proceedings. United States v. Hubbard, 208 U.S. App. D.C. 399, 650 F.2d 293, 317 (D.C. Cir. 1980). This presumption must, however, be balanced with the court's power to regulate the use of information or documents, obtained through means other than discovery, in a proceeding before the court. See Gumbel v. Pitkin, 124 U.S. 131, 146, 31 L. Ed. 374, 8 S. Ct. 379 (1888) (the court has the power "over its own process to prevent abuse, oppression and injustice."); see also Smith v. Armour Pharmaceutical Co., 838 F. Supp. 1573, 1578 (S.D. Fla. 1993) (court has the power to control the proceedings before it and the manner in which information is used in those proceedings). Moreover, it is well settled that "the decision as to access [to judicial records] is one best left to the sound discretion of the trial court." Hubbard, 650 F.2d at 316-17.
In Hubbard, the Court of Appeals set forth a test to determine whether portions of a court record should be sealed. Id. at 317-22; see also Johnson v. Greater Southeast Community Hospital Corp., 293 U.S. App. D.C. 1, 951 F.2d 1268, 1277 n. 14 (D.C. Cir. 1991). The six factors to be considered when applying this test are: (1) the need for public access to the judicial proceeding; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to the disclosure and the identity of that party; (4) the strength of the property and privacy interests; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Hubbard at 317-22. The court finds that these factors weigh in favor of the court sealing the relevant portions of the record in this case.
First, the public's access to these proceedings is not hampered by this protective order as the trial in this matter will be open to the public. Second, while the public did have full access to the documents in question prior to the entry of this order, HRG has presented no evidence that anyone has in fact taken advantage of this access. Third, HRG is the party objecting to the sealing of this record. No outside party, not a participant in this litigation, has objected to a partial sealing of the record. Fourth, Defendant-Intervenors have demonstrated sufficiently strong property and privacy interests in the information. Fifth, the possibility of prejudice to HRG by the sealing of these two attachments is minor as the court will still consider this information when arriving at a decision on the merits. Sixth, since plaintiff introduced the document into the record to bolster its view with respect to the applicability of exemption four and since the court has stated that it will still consider Table 1 when arriving at its decision, sealing the relevant portions of the record will not eviscerate the purpose for which the information was submitted. After carefully analyzing the six factors, the court concludes that temporarily sealing a small portion of the record in this case is appropriate.
Lastly, HRG claims that because Defendant-Intervenors did not act immediately to request a protective order, they have waived their right to do so. While Defendant-Intervenors did not move with all dispatch in requesting a protective order, their inaction does not constitute a waiver of any confidentiality interests they may have had in the information. There is no evidence that the confidential character of Table 1 has been breached by another party because of its inclusion in these court records. Consequently, sealing the two attachments in the record which contain Table 1 is appropriate.
Accordingly, it is this 17th day of October 1996,
ORDERED that the parties' cross-motions for summary be and are hereby DENIED and this matter be set for a bench trial on February 3, 1997 at 10:00 a.m.; and it is
FURTHER ORDERED that Defendant-Intervenors' Motion for a Protective Order be and is hereby GRANTED. Public Citizen Health Research Group will not use or disseminate any of the information contained in the table entitled Table 1. Dose Variables nor will it assist others in using or disseminating this information during the pendency of this case; and it is
ORDERED that the following portions of the court record in this case be sealed:
Exhibit C to Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's and Defendant-Intervenors' Motion for a Protective Order filed with this court on April 20, 1994; and Exhibit 1 to the Supplemental Declaration of Darrell R. Abernethy, M.D. in Support of Plaintiff's Reply to Defendant's and Defendant-Intervenors' Opposition to Plaintiff's Cross-Motion for Summary Judgment filed with this court on August 19, 1994; and it is