Bernstein v. Bernstein Litowitz Berger & Grossmann LLP
814 F.3d 132
| 2d Cir. | 2016Background
- Bruce Bernstein, a former partner at BLB&G, filed a sealed complaint alleging the firm engaged in a kickback scheme with the Mississippi AG’s Office and that he was forced out in retaliation for raising ethical concerns.
- Judge Kevin Castel granted a precautionary 14‑day sealing order for the complaint; the parties settled on confidential terms 13 days after filing and jointly sought permanent sealing and file closure.
- Judge Valerie Caproni denied the parties’ joint request to keep the complaint sealed, finding the complaint a judicial document and that public access presumptions applied under both the First Amendment and the common law.
- The district court concluded the complaint did not disclose privileged or confidential client information and that public interests outweighed the weak privacy interests favoring secrecy.
- Defendants appealed the denial of continued sealing; the Second Circuit reviewed de novo legal questions and for abuse of discretion the ultimate sealing determination.
- The Second Circuit affirmed, holding (1) complaints are judicial records subject to presumptive public access, (2) the First Amendment and common‑law presumptions applied here, and (3) protection of “confidential client information” did not justify continued sealing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a complaint is a "judicial document" subject to public‑access presumptions | Bernstein: pleadings may be sealed when ethics/confidentiality concerns exist, but he sought sealing only out of caution | BLB&G: complaint implicates confidential client information and thus may be sealed | Complaint is a judicial document; pleadings (even in settled cases) are presumptively public |
| Whether the First Amendment right of access applies to the complaint | Bernstein: did not contest access strongly; supported sealing to preserve settlement | BLB&G: First Amendment presumption does not apply because complaint contains confidential material and is unreliable | First Amendment presumption applies under "experience and logic"; public access serves judicial accountability |
| Weight of the common‑law presumption and whether countervailing interests overcome it | Bernstein: little need to show secrecy; supported settlement confidentiality | BLB&G: privacy and confidentiality interests (including protection of client information) outweigh public interest | Common‑law presumption is strong for pleadings; public interest in disclosure outweighs weak privacy interests |
| Whether alleged "confidential client information" (ethical duties) justifies sealing | Bernstein: facts are not privileged/confidential and disclosure is permissible | BLB&G: Rule 1.6 confidentiality and broader ethical duties require sealing; expert ethics opinions support confidentiality | Allegations do not amount to privileged or confidential client information; ethical duty does not equal privilege and does not justify sealing |
Key Cases Cited
- Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (framework for determining whether a document is a judicial record and weighing common‑law access)
- United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) (Amodeo I) (discusses limited weight of access to documents that play little role in Article III functions)
- United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) (Amodeo II) (establishes factors for weighing common‑law right of access)
- Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir. 2013) (describes relevance test for judicial documents and rigor required to overcome presumption of access)
- In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) (First Amendment requires specific, on‑the‑record findings before closure)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (U.S. 1978) (recognizes common‑law public right to inspect judicial records)
- Joy v. North, 692 F.2d 880 (2d Cir. 1982) (documents forming basis for adjudication merit strong presumption of access)
- IDT Corp. v. eBay, 709 F.3d 1220 (8th Cir. 2013) (notes modern trend treating pleadings as judicial records)