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Zapp v. Gon

October 28, 2010

DAVID S. ZAPP, PLAINTIFF/COUNTER-DEFENDANT,
v.
ZHENLI YE GON, DEFENDANT/COUNTER-PLAINTIFF.



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

MEMORANDUM OPINION

Plaintiff/Counter-Defendant David Zapp ("Zapp") filed the above-captioned action against Defendant/Counter-Plaintiff Zhenli Ye Gon ("Ye Gon") seeking to recover unpaid legal fees. Currently before the Court is Zapp's [46] Consent Motion to Seal Portions of Record. Specifically, Zapp moves to seal the portion of the record containing Zapp's [40] Amended Motion for Summary Judgment, the exhibits attached thereto, and the vast majority of the allegations in Ye Gon's [4] Answer and Counterclaim. The Court, having considered the pending motion and applicable case law, finds, inter alia, that Zapp has failed to articulate a substantial interest in sealing portions of the record so as to overcome the strong presumption in favor of public access to judicial records. Consequently, the Court shall DENY Zapp's Consent Motion to Seal Portions of Record.

I. BACKGROUND

For approximately five months in 2008, Zapp represented Ye Gon as legal counsel in Ye Gon's then-pending criminal trial. Am. Compl., Docket No. [2], ¶¶ 3, 6, 7. According to the parties' retainer agreement, Ye Gon was to pay Zapp a fixed-fee of $4,500,000 "irrespective of the total number of hours which [Zapp's] firm works on [Ye Gon's] behalf; irrespective of the results in [Ye Gon's] case or the manner in which the case is concluded." Id. Ex. A, at 1 (Retainer Letter). In the event Ye Gon terminated the attorney-client relationship before the resolution of his criminal case, the retainer agreement provided that Zapp would be entitled to reimbursement based on the following billing rates: Zapp at $1000 per hour; associates at $500 per hour; and paralegals at $200 per hour. Id. Ex A, at 1 n.1.

In his Amended Complaint, Zapp alleged that Ye Gon breached the parties' retainer agreement by refusing to pay $204,866.44 in legal fees that Zapp allegedly incurred while representing Ye Gon. See id. ¶¶ 7, 12. In his Answer and Counterclaim (hereinafter "Counterclaim"), Ye Gon generally denied Zapp's allegations and asserted six counterclaims against Zapp, including breach of contract, slander, malpractice, and two counts of fraud. See generally Counterclaim.

After the parties conducted limited discovery, Zapp filed a [31] Motion for Summary Judgment, in response to which Ye Gon filed an [34] Emergency Motion to Seal. The basis for Ye Gon's emergency motion was that Zapp had included information in his motion for summary judgment relating to sealed proceedings in Ye Gon's then-pending criminal case, which has now been resolved. The Court granted Ye Gon's Emergency Motion to Seal and accordingly directed Zapp to file a redacted version of his Motion for Summary Judgment. See Min. Order (Mar. 16, 2010). Zapp complied by filing an [40] Amended Motion for Summary Judgment and attaching as exhibits thereto Ye Gon's responses to Zapp's interrogatories, request for admissions, and request for production of documents.

On June 10, 2010, counsel for both parties advised the Court by telephone that they had reached a settlement agreement and that the case may be dismissed after the Court rules on a motion to seal that Zapp intends to file and Ye Gon will not oppose. See Min. Order (June 15, 2010). On July 21, 2010, Zapp filed his [46] Consent Motion to Seal Portions of Record ("Motion") seeking to seal the following portions of the record (hereinafter collectively referred to as "the Documents"): (1) the Counterclaim's ad damnum clause and paragraphs 8-16, 18-24, 26-31, 33-35, 37-42, 45-46, 48-51, 54-58; and (2) Zapp's Amended Motion for Summary Judgment and all exhibits attached thereto. Motion at 3, 3 n.1.

II. LEGAL STANDARD

"[T]he decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." United States v. Hubbard,650 F.2d 292, 316-17 (D.C. Cir. 1980) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978)) (alterations in the original). "[T]he starting point in considering a motion to seal court records is a 'strong presumption in favor of public access to judicial proceedings.'" EEOC v. Nat'l Children's Ctr. Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). In Hubbard, 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.

Nat'l Children's Ctr., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317-22).

III. DISCUSSION

Zapp has moved to seal the Documents, arguing that they contain unsubstantiated and damaging allegations that "have a profound effect upon his reputation and property interest as a practicing attorney." See Motion at 7; see also id. at 4. The Documents contain essentially all of the Record's references to Ye Gon's counterclaims. The Court shall analyze the Documents under each of the six Hubbard factors.*fn1

A. The Need for Public Access to the Documents

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, 435 U.S. at 597 (recognizing a common law right to view court documents). The presumption in favor of public access to judicial records is strongest when "the documents at issue [are] . . . specifically referred to in a trial judge's public decision." Nat'l Children's Ctr., 98 F.3d at 1409 (quoting Hubbard, 650 F.2d at 318). In ...


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