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Berliner Corcoran & Rowe LLP v. Orian

October 13, 2009

BERLINER CORCORAN & ROWE LLP, PLAINTIFF,
v.
MORDECHAI ORIAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

On August 17, 2009, the Court issued a Memorandum Opinion resolving this case and allowing the parties to confer and propose placing portions of the opinion under seal pursuant to United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). Plaintiffs did not propose any redactions, but Defendants proposed several redactions on the basis of attorney-client privilege. On August 27, 2009, the Court issued an order giving Defendants an opportunity to file a brief supporting their proposed redactions, which they did on September 3, 2009. The Court, having considered Defendants' brief and the applicable legal authorities, concludes that there is a public need for the redacted information and that the attorney-client privilege is either inapplicable to or has been waived with respect to their proposed redactions. Therefore, the Court shall release an unsealed, unredacted version of the Memorandum Opinion on the public docket.

BACKGROUND

This case involved a dispute over attorneys' fees.*fn1 Plaintiff Berliner Corcoran & Rowe LLP ("BCR") represented Defendants Global Horizons, Inc. ("Global") and Mordechai Orian ("Orian") as legal counsel in two administrative proceedings before the Department of Labor ("DOL") for which Defendants did not pay a portion of BCR's attorneys' fees. BCR's Complaint asserted three claims for relief: (1) breach of contract; (2) failure to pay accounts stated; and (3) quantum meruit. Defendants filed an Answer with Counterclaims, which was later amended, with seven counterclaims: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) promissory estoppel; (4) fraud and misrepresentation; (5) unjust enrichment; (6) legal malpractice; and (7) breach of fiduciary duty. After extensive discovery and one round of summary judgment briefing, the parties filed a second round of motions for summary judgment.

Defendants moved for summary judgment on all counts of Plaintiff's Complaint. In support of this motion, Defendants filed a brief and several supporting exhibits under seal, including a declaration from Defendant Orian and correspondence between BCR and Defendants regarding fees. See Def.'s Mot. for Summ. J. BCR filed a motion for summary judgment under seal with dozens of supporting exhibits, including correspondence between BCR and Defendants regarding BCR's representation and payment for its services. See Pl.'s Mot. for Reconsideration & Summ. J. BCR also filed under seal a motion for summary judgment on Defendants' counterclaims. The parties filed oppositions and reply briefs under seal. On August 17, 2009, the Court issued a Memorandum Opinion and Order granting BCR's motions for summary judgment and denying Defendants' motions for summary judgment. The Court's Memorandum Opinion was filed under seal and cited several exhibits that had been filed under seal by the parties. The Court permitted the parties to propose redactions to the unsealed opinion, and only Defendants proposed redactions, invoking the attorney-client privilege.

LEGAL ANALYSIS AND DISCUSSION

When determining whether to unseal court records, courts in this Circuit must begin with a "strong presumption in favor of access to judicial proceedings." Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). In United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the D.C. Circuit identified six factors that might act to overcome this presumption: (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents at issue; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

EEOC v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650 F.2d at 317-22). The Court shall address each of these factors in turn.

1. The Need for Public Access

Public access to judicial records is "fundamental to a democratic state" and "serves the important functions of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally." Hubbard, 650 F.2d at 315 & n.79; see also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978) (recognizing a common law right to view court documents). The generalized need for public access reaches its apex when a matter has reached the adjudication stage. United States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 172 (D.D.C. 2008) (citing Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) ("An adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny.")). "[T]here is a 'need for public access' in those instances where 'the documents at issue [are]... specifically referred to in the trial judge's public decision.'" Nat'l Children's Ctr., 98 F.3d at 1409 (quoting Hubbard, 650 F.2d at 318). Because the Court specifically relies in its Memorandum Opinion on the evidence that Defendants propose to redact, there is a generalized public need to access that information. Therefore, the Court finds this factor weighs in favor of unsealing.

2. Previous Public Access to the Documents At Issue

The citations that Defendants seek to redact from the Memorandum Opinion were filed under seal, and there is no indication in the record that there has ever been public access to those documents. "Determining whether, when and under what conditions the public has already had access to court records in a given case cannot of course guide decision concerning whether, when and under what conditions the public should have access as an original matter." Hubbard, 650 F.2d at 318 (emphasis added). Accordingly, there is no previous public access to weigh in favor of unsealing. Id. at 318-19.

3. Objections to Unsealing

Defendants are the only parties who object to unsealing the full Memorandum Opinion.*fn2 Defendants object on the basis of the attorney-client privilege, which they claim will be vitiated by the publication of certain communications between them and Plaintiff, their former counsel. While the fact that a party objects may be a significant factor for the court to consider when deciding whether to unseal a record, see Hubbard, 650 F.2d at 319, a party's objection is only cognizable if the attorney-client privilege actually applies to the contested documents and the privilege has not been waived. United States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 174 (D.D.C. 2008). Accordingly, the Court must determine whether Defendants' proposed redactions cover materials protected by the attorney-client privilege and, if so, if that privilege has been waived. Because this a diversity case in which state law ...


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