ZEIL ROSENBERG v. BECTON, DICKINSON AND COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4158-08T14158-08T1

ZEIL ROSENBERG,

Plaintiff-Appellant,

v.

BECTON, DICKINSON AND

COMPANY,

Defendant-Respondent.

__________________________________________

 

Argued November 9, 2009 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8180-05.

Theresa A. Vitello argued the cause for appellant (Levy Phillips & Konigsberg, attorneys; Alan J. Konigsberg, of counsel; Ms. Vitello, of counsel and on the briefs).

James P. Flynn argued the cause for respondent (Epstein Becker & Green, attorneys (Mr. Flynn, of counsel and on the brief; Lauren D. Daloisio, on the brief).

PER CURIAM

Appellant Dr. Zeil Rosenberg appeals from an April 9, 2009 order sealing portions of the record of a civil trial. We affirm.

Rosenberg sued his former employer, Becton, Dickinson and Company (Becton), claiming he was wrongfully terminated in violation of Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, after he raised awareness about an internal audit that revealed several Food and Drug Administration (FDA) regulatory violations. Rosenberg also claimed breach of employment contract and breach of implied covenant of good faith and fair dealing. Becton countersued, claiming breach of employment contract, among other counts. Ultimately, a jury found neither party liable to the other on any of the claims.

Becton manufactures a broad range of medical devices. Rosenberg was Becton's Worldwide Business Leader and Medical Director of Immunizations. Rosenberg alleged that his termination stemmed from his "whistle-blowing" about FDA violations detailed in a report by META Solutions, Inc. (META Report). This report contains the findings of an independent audit of Becton's clinical trial practices.

The basis of this appeal stems from an order sealing portions of the record that included the META Report and related documents (META Documents). Becton voluntarily commissioned META Solutions to perform a "regulatory compliance assessment" of the processes and procedures utilized in a variety of Becton's clinical trials. The report is thirty-two pages long and begins with a disclaimer that reads:

The information contained in this document is considered to be proprietary and confidential and may not be reproduced or used in any manner without the expressed written permission of META Solutions, Inc. or the audited company. Any distribution of this document in whole or in part, or the divulgence of any of its contents to anyone outside of the company to which it has been submitted is prohibited.

The report provides detailed information about Becton's clinical trials, chemical makeup of solutions, procedures for clinical trials, and methods of data management. The additional META Documents are preliminary progress reports and PowerPoint presentations that summarize the META Report's findings.

Prior to trial, Becton moved for a protective order of the META Report and Documents. Judge Sybil R. Moses ruled that "good cause" existed to deem the META Report and Documents confidential pursuant to Rule 4:10-3(g), which protects "trade secret or other confidential research, development, or commercial information."

The case was tried by a different judge and a jury. The original order provided that the META Documents could be used for litigation purposes only. The trial judge subsequently modified the order so that the META Documents could be used during the trial as evidence. The judge reserved judgment on how to treat the META Documents after trial.

During pre-trial exchange, Becton listed the META Report on its exhibit list. Though Becton filed four in limine motions, none sought to preclude or limit the use of the META Report. During trial, the META Documents were entered into evidence and were frequently used as exhibits. The courtroom was open to the public. The Meta Documents were displayed on a five-by-eight-foot projection screen throughout the trial.

After the trial concluded, Becton filed a motion to seal portions of the record and to maintain the protective order over the META Documents. The portion of the record containing the META Documents was sealed by an April 9, 2009 order. The trial judge found that the META Documents were "highly confidential and proprietary information that [would] provide competitors with information that [would] injure [Becton]." Most significantly, the judge found that a "chilling effect" would be placed on the company's ability to engage in future self-critical analysis if it knew the results would be made publicly available. Thus, the judge found it was in the public interest for the META Documents to be sealed, because the public does not benefit by having a medical device company refrain from internal audits.

The judge also found that "[Rosenberg] failed to cite any authority which changes the disclosure standard in a post-trial setting" and that he "failed to demonstrate that the policy of public access to disclosure is outweighed by the confidentiality concerns of [Becton]." Finally, the judge concluded that "the presumption of protecting the privacy of the META Documents and outweighing public access has been overcome by [Becton]" and that "[Becton] has met its burden pursuant to the doctrine of self-critical analysis privilege."

On appeal, Rosenberg argues that the judge incorrectly placed the burden of proof upon him when deciding the motion to seal the record. He maintains that the strong presumption of public access outweighs any of Becton's privacy concerns. We disagree.

The decision to seal or unseal portions of the court record is left to the discretion of the trial judge. Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995). As such, the trial judge's determinations will be upheld unless an abuse of discretion occurred. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997). In any case, however, a "trial court's interpretation of the law and the consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In New Jersey, when a proceeding is "required to be conducted in open court, no record of any portion thereof shall be sealed by order of the court except for good cause shown." R. 1:2-1. Good cause is measured by a standard of "reasonableness." Hammock, supra, 142 N.J. at 386. In Hammock, the Supreme Court explained the good cause standard:

[T]here is a presumption of public access to documents and materials filed with a court in connection with civil litigation. That right exists as to the litigants and the public . . . [but it] is not absolute. Under both the common law and the First Amendment, a court may craft a protective order. "[T]he strong commonlaw presumption of access must be balanced against the factors militating against access. The burden is on the person who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption."

[Hammock, supra, 142 N.J. at 375-76 (final alteration in original) (citation omitted) (emphasis added).]

There are several factors to determine whether a party has shown good cause to seal a record. Good cause can be determined by: 1) the nature of the lawsuit; 2) the substantive law likely to be applied in resolving the issues in the pleadings; 3) the kind of evidence to be introduced at trial and the likelihood it may be obtained through discovery; 4) whether trade secrets, research or other confidential material is sought; 5) whether confidential information about non-parties is sought; 6) whether the material is privileged; 7) whether the material relates to matters not in dispute; 8) whether the party seeking the material already possesses it; and 9) the burden and expense to the parties seeking the protective order. Catalpa Inv. Group, Inc. v. Franklin Twp. Zoning Bd. of Adjust., 254 N.J. Super. 270, 274 (Law Div. 1991).

The party seeking to overcome the strong presumption in favor of public access must demonstrate the need for secrecy with specificity, as "[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, are insufficient." Hammock, supra, 142 N.J. at 381-82. The party must prove that a current need to seal the documents exists rather than relying on the fact that a protective order was entered earlier. Id. at 382. Similarly, the trial court must also examine each document individually and state on the record why the presumption of public access has been overcome. Ibid. Where secrecy is sought relating to trade secrets or proprietary information, "the trial court must nonetheless state with particularity the facts, without disclosing the secrets, . . . that currently persuade the court to seal the document." Ibid.

Rosenberg's argument that the trial judge applied the burden of proof incorrectly has merit. In the April 9, 2009 oral decision, the judge incorrectly states the burden of proof, writing "[Rosenberg] has failed to demonstrate that the policy of public access to disclosure is outweighed by the confidentiality concerns of [Becton]." However, the judge then acknowledged that the burden was upon the Becton by stating that "there is a persuasive showing of need to enter such an order and . . . [Becton] has met its burden pursuant to the doctrine of self-critical analysis."

Also troublesome is that the presumption was incorrectly placed in favor of non-disclosure when the judge stated, "The presumption of protecting the privacy of the META [D]ocuments and outweighing public access has been overcome by [Becton] by the preponderance of the evidence standard." While the court's statement correctly indicates the burden is on the moving party to show good cause to seal a public record, it suggests that there is a presumption in favoring privacy and that the right of public access must outweigh that presumption. The correct standard begins with a "strong presumption" of public access and then requires the movant to demonstrate that "the interest in secrecy outweighs the presumption." Hammock, supra, 142 N.J. at 375-76.

For these reasons, it appears that the judge misstated both the burden of proof and the balancing test. Thus, the decision is not entitled to deference by this court. Manalapan, supra, 140 N.J. at 378. However, upon a de novo review, we come to the same ultimate conclusion and affirm the April 9, 2009 order sealing portions of the record.

Applying the Catalpa factors, a review of the record and the judge's decision supports a finding that Becton has shown "good cause" to seal the record. The nature of the underlying lawsuit did not relate to the actual contents of the report, as this was not a products liability case. See Catalpa, supra, 254 N.J. Super. at 274 (factor one). The material was already available to Rosenberg through discovery and Rosenberg possessed it long before the suit was even established. Ibid. (factor eight). The META Documents contained "research and other confidential materials" that were not "in dispute," although they had some relevance to the issue of wrongful termination. Ibid. (factor seven). And, finally, we agree with the judge that the burden and expense to Becton by not sealing the record would amount to "corporate sabotage." Ibid. (factor nine).

Rosenberg argues that the judge incorrectly applied the self-critical analysis doctrine as an absolute privilege that outweighed public access to the documents. Again, we disagree.

The New Jersey Supreme Court has expressly rejected the self-critical analysis privilege "in favor of a case-by-case balancing approach." Payton, supra, 148 N.J. at 549. However, the trial courts should still "accord significant weight" to self-critical analysis when performing the balancing test to determine whether the presumption of public access is outweighed by a private party's interest in non-disclosure. Payton, supra, 148 N.J. at 548. Thus, while New Jersey does not recognize self-critical analysis as a privilege per se, "substantial consideration" of it can be a heavy factor in tipping the balance in favor of privacy over public access. Id. at 546.

Here, the self-critical analysis doctrine was correctly applied as a factor in the balancing test, not as an absolute privilege that automatically outweighed the right to public access. While Rosenberg argued that the public would be benefited by knowing the results of Becton's FDA violations, the judge questioned whether society would benefit by having a "medical device company who deals with lives . . . every day to say I'm not going to [voluntarily] audit myself anymore because I'm only going to subject myself to public scrutiny." Finally, the judge found that denying the motion to seal the META Documents "would place a chilling effect on future internal audits by [Becton]." The self-critical analysis was thus given "significant weight" in the judge's balancing test, as is allowed by Payton, supra, 148 N.J. at 548.

Though the judge may have misstated the burden of proof and balancing test in the oral decision, ultimately as matter of law we agree with the judge's conclusion that Becton's interest in confidentiality outweighed the presumption of public access. In fact, we agree with the judge that the public interest is actually advanced by maintaining Becton's confidentiality.

 
Affirmed.

Becton argues that the META Documents were never "filed" with the court and therefore are not part of the public record pursuant to Rule 1:38-2(b). However, as they were admitted into evidence during an open court, they are part of the public record pursuant to Rule 1:2-1 and Rule 1:38-2(a)(1).

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A-4158-08T1

June 2, 2010