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Mirlis v. Greer

United States District Court, D. Connecticut

January 26, 2018

ELIYAHU MIRLIS, Plaintiff,
v.
DANIEL GREER, et al. Defendants

          RULING ON LAWRENCE DRESSLER'S REQUEST FOR ACCESS TO POST-JUDGMENT FINANCIAL DOCUMENTS AND TO VIDEO DEPOSITION PLAYED AT TRIAL

          Michael P. Shea, U.S.D.J.

         I. Introduction

         Plaintiff Eliyahu Mirlis brought this lawsuit against his former high school principal, Rabbi Daniel Greer, along with his former high school, Yeshiva of New Haven, Inc. (“Yeshiva”). Mirlis claimed that he was repeatedly sexually assaulted as a student at Yeshiva by Greer, and that the school failed to respond appropriately. On May 18, 2017, after a five-day trial, a jury agreed, awarding Mirlis $15, 000, 000 in damages. I earlier denied the defendants' post-verdict motions challenging the verdict, and the defendants have appealed the judgment. (See ECF No. 243 and 248). Before me now is non-party Lawrence Dressler's request for public access to “financial documents, deposition(s) and related financial information obtained during post-judgment discovery” from Daniel Greer and the Yeshiva of New Haven. (ECF No. 276 at 1; ECF No. 255 at 2). Dressler, who has created a blog on which he has posted information about this case, also requests the public release of the video deposition of fact witness Aviad Hack, which was played for the jury at trial. (ECF No. 276 at 1; ECF No. 255 at 5). Also before me is Aviad Hack's motion for a protective order prohibiting the release of the video of his deposition. (ECF No. 256). For the reasons stated below, Dressler's request is GRANTED IN PART AND DENIED IN PART, and Hack's motion for a protective order is DENIED.

         II. Background

         A jury concluded that Mirlis proved each of his claims against Greer at trial and awarded him $15, 000, 000 in compensatory damages. (See ECF No. 157). The jury also concluded that punitive damages were warranted. (Id.). As a result, the Court issued a judgment awarding Mirlis $15, 000, 000 in compensatory damages, along with $5, 000, 000 in common law punitive damages, and offer-of-compromise interest in the amount of $1, 749, 041.10. (ECF No. 163). After the jury issued its verdict, Mirlis filed motions for an order directing the clerk to issue writs of execution (ECF No. 186) and to take Daniel Greer's deposition (ECF No. 187) in order to facilitate post-judgment discovery. Shortly thereafter, in response to an order I issued, the defendants filed their responses to Mirlis' post-judgment interrogatories-which concerned Greer's financial assets-on the docket under seal. (ECF No. 193 and 199).

         On November 24, 2017, the court received a letter from Dressler requesting that the Court make publicly available any “financial documents, deposition(s) and related financial information obtained during post judgment discovery” from Daniel Greer[1] and the Yeshiva of New Haven. He also requested that the Court make publicly available the video of the deposition of fact witness Aviad Hack-which had been played in part for the jury at trial (see ECF No. 230 at 137). (Dressler Letter at 1).[2] Hack testified, among other things, that Greer had sexually abused him while he was a minor and a student at the Yeshiva a few years before Mirlis attended, and also that Hack later learned-while he was a teacher at the Yeshiva-that Greer was abusing Mirlis. (ECF No. 111-6 at 8, 11-12) Neither the video of Hack's deposition itself nor a transcript of the deposition was marked as an exhibit or admitted in evidence during the trial. The transcript of the entire deposition, however, has been publicly available since the parties filed it on the docket before trial as an exhibit to their joint trial memorandum to facilitate the Court's ruling on the admissibility of the specific testimony they had designated. (See ECF No. 111-6).

         In response to Dressler's letter, the Court issued a notice on the docket stating the gist of Dressler's letter and noting that there would be a hearing on the issue in the near future. (ECF No. 235). Hack later filed an opposition to Dressler's request, which he styled as a motion for a protective order prohibiting the release of the video of his deposition. (ECF No. 256). The defendants also filed an opposition (ECF No. 257), and Hack and the defendants filed supplemental briefs after the Court heard oral argument. (ECF No. 272 and 273).

         III. Discussion

         The public's right to access documents related to the judicial process is protected by the common law and the First Amendment to the United States Constitution. The common law right of public access stems from “the need for federal courts, although independent-indeed, particularly because they are independent-to have a measure of accountability and for the public to have confidence in the administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). “Before any such common law right can attach, however, a court must first conclude that the documents at issue are . . . ‘judicial documents.'” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). A document is a judicial document if it is “relevant to the performance of the judicial function and useful in the judicial process.” Id. at 119 (internal quotation marks omitted). “Documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the [common law presumption of access's] reach. . . .” Amodeo, 71 F.3d at 1050.

         Should a court conclude that “a document is a judicial document and therefore that at least a common law presumption of access applies, [the court] must determine the weight of the presumption of access.” United States v. Erie Cty., N.Y., 763 F.3d 235, 239 (2d Cir. 2014) (internal quotation marks omitted). This weight is in turn “governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Amodeo, 71 F.3d at 1049. After calculating the “weight of the presumption of access, the court must balance competing considerations against disclosure. Only when competing interests outweigh the presumption may access be denied.” Erie Cty, 763 F.3d at 239, quoting Lugosch, 435 F.3d at 120. Such competing interests include adverse effects upon “law enforcement interests or judicial performance, ” along with “the privacy interest of the person resisting disclosure.” Amodeo, 71 F.3d at 1050.

         In addition to this common law right of access, “the public and the press have a ‘qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.'” Lugosch, 435 F.3d at 120, quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004). The Second Circuit employs two approaches in defining the scope of this right. The first is the “so-called experience and logic approach, ” which “requires the court to consider both whether the documents [at issue] have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question.” Lugosch, 435 F.3d at 120 (internal quotation marks omitted). “The courts that have undertaken this type of inquiry have generally invoked the common law right of access to judicial documents in support of finding a history of openness.” Hartford Courant, 380 F.3d at 92. The second approach “considers the extent to which the judicial documents are ‘derived from or [are] a necessary corollary of the capacity to attend the relevant proceedings.'” Lugosch, 435 F.3d at 120, quoting Hartford Courant Co., 380 F.3d at 93. This approach “derives from the public nature of particular tribunals.” Hartford Courant Co., 390 F.3d at 93. If a court concludes that a First Amendment right of access to certain judicial documents exists, it must still determine whether the documents should be sealed. A document may only be “sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987).

         a. Financial Documents, Deposition(s) and Related Information Obtained During Post-Judgment Discovery

         I begin with Dressler's request to make publicly available the financial documents, deposition(s) and related information obtained from Greer and the Yeshiva during post-judgment discovery. For the following reasons, I deny Dressler's request for this information. First, the information at issue is mainly comprised of discovery materials passed between the parties beyond the Court's reach, thereby rendering them non-judicial documents. Amodeo, 71 F.3d at 1050; S.E.C. v. TheStreet.Com, 273 F.3d 222, 233 (2d Cir. 2001) (noting that “deposition discovery material” did not constitute a judicial document because it did not “play [any] role in the performance of Article III functions” (internal quotation marks omitted)). The only portion of these documents even posted on the docket are the defendants' responses to post-judgment interrogatories, which were filed under seal in response to an order I issued to ensure that the parties proceeded promptly with any necessary post-judgment discovery. (ECF No. 199). As such, even these interrogatories do not constitute a judicial document as they were not “relevant to the performance of the judicial function and useful in the judicial process.” TheStreet.Com, 273 F.3d at 231. Rather, like other discovery material passed between the parties, they were merely useful to facilitate the post-judgment process; they were never considered by the Court in performing its Article III functions.

         Even assuming that the financial information Dressler sought was contained in judicial documents, I would still deny his request to make it publicly available. As an initial matter, Dressler does not enjoy a First Amendment right of access to such documents. Financial documents produced in discovery have not “historically been open to the press and general public” nor has their public access “play[ed] a significant positive role in the functioning of the particular process in question” in this case-to wit, the Court's overseeing, as necessary, the plaintiff's efforts to collect his judgment. Indeed, financial information has historically “not been subject to public access in the United States” because “[c]ourts have recognized that banking customers have a ‘justifiable expectation of privacy that their names and financial records not be revealed to the public.'” Strauss v. Credit Lyonnais, S.A., No. 06-CV-702 DLI MDG, 2011 WL 4736359, at *4 (E.D.N.Y. Oct. 6, 2011) (quoting In re Knowville News-Sentinel Company, Inc., 723 F.2d 470, 477 (6th Cir. 1983)). I also do not discern any way in which ...


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