Zapp v. Gon

• Court: District Court, District of Columbia
• Decided: October 28, 2010
• Docket: Civil Action No. 2008-1955
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID S. ZAPP,

Plaintiff/Counter-Defendant,

v. Civil Action No. 08–1955 (CKK) ZHENLI YE GON,

Defendant/Counter-Plaintiff.

MEMORANDUM OPINION (October 28, 2010)

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

2 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

3 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.1

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 contrast, “documents filed with the court or introduced

into evidence . . . often have a private character, diluting their role as public business.” Id.

Zapp contends that the purposes of public access are “only modestly served” by the

Documents’ continued disclosure and “there is no specific or particularized need for public

access.” Motion at 5. In support, Zapp cites to how the Documents were not admitted in trial,

were not relied upon by the Court in a decision, and how they do not reference a public figure or

agency. Id. Although the Court agrees with Zapp’s characterization of the Documents’ limited

role in this case, given that the public’s access to judicial records is “fundamental to a democratic

state,” the Court finds that this factor still weighs in favor of the Documents remaining unsealed.

The Documents’ relatively “private character” may dilute, but does not destroy, the public’s need

1 When doing so, the Court notes that because the Motion often does not distinguish among the Documents’ various components, neither will the Court unless stated otherwise. 4 to access them.

B. Previous Public Access to the Documents

“Previous [public] access is a factor which may weigh in favor of subsequent [public]

access.” Hubbard, 650 F.2d at 318. In this case, when the Motion was filed, Zapp’s Amended

Motion for Summary Judgment and Ye Gon’s Counterclaim had been available on the public

docket for 140 and 560 days, respectively. Zapp acknowledges that the Documents’ previous

public availability weighs in favor of their continued public availability, but he insists that this

factor is not dispositive. See Motion at 6. The Court finds that the Documents’ previous public

availability weighs in favor of the Documents remaining unsealed. See In re Application of New

York Times Co., 585 F. Supp. 2d 83, 93 (D.D.C. 2008) (finding that when “much of the critical

information is already in the public forum . . . this factor weighs in favor of unsealing the . . .

materials.”). In addition, the Court finds that the fact that Zapp himself did not seek to file his

Amended Motion for Summary Judgment under seal weighs in favor of the continued public

availability of his Amended Motion for Summary Judgment.2

C. The Fact That Someone Has Objected to the Disclosure and the Identity of That Person

Under the third Hubbard factor, the fact that a party moves to seal the record weighs in

favor of the party’s motion. See Nat’l Children’s Ctr., 98 F.3d at 1410 (finding that “only one

Hubbard factor counsels in favor of sealing the consent decree––the fact that the [movant] has

objected to the disclosure.”). Thus, as Zapp objects to the continuing disclosure of the

2 As noted above, the information redacted from Zapp’s amended motion for summary judgment related to Ye Gon’s criminal case and was kept under seal for the benefit of Ye Gon, not Zapp. 5 Documents, the Court finds that this factor weighs in favor of Zapp’s Motion.3

D. The Strength of Any Property and Privacy Interests Asserted

For the fourth Hubbard factor, Zapp argues that the Documents “have a profound effect

upon his reputation and property interests as a practicing attorney” and that “these interests are

substantial and strong.” Motion at 7. The Court disagrees and finds that Zapp’s alleged interests

are not substantial, especially when compared to the interests the Hubbard court found

substantial.

First, the Court notes the cursory manner in which Zapp asserts and describes his

purported interest in sealing the Documents. Zapp’s entire discussion of the fourth

Hubbard factor is contained in a single paragraph, in which Zapp does not quantify, provide

evidence for, or otherwise support his characterization of his interests as “substantial.” See id.

Such a cursory argument hardly warrants serious attention. See, e.g., Wash. Legal Clinic for the

Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997) (“Because the District raises this issue in a

cursory fashion, we decline to resolve it”) (internal quotation marks omitted); Ry. Labor Execs.’

Ass’n v. U.S. R.R. Ret. Bd., 740 F.2d 856, 859 n.6 (D.C. Cir. 1984) (refusing to address an issue

when a party’s briefing “consisted of only three sentences . . . and no discussion of the relevant

statutory text, legislative history, or relevant case law.”).

Second, even when the Court considers the merits of Zapp’s purported interests, the

Court finds that they are not substantial. In Hubbard, the D.C. Circuit found a religious

organization’s interests in sealing allegedly illegally seized records “direct and substantial”

3 In the Motion’s discussion of the third Hubbard factor, Zapp argues that the Documents’ “allegations of malpractice and misconduct create substantial property and reputation issues for [Zapp], a party in the case.” Motion at 6. The Court shall address this argument under the fourth Hubbard factor. 6 because the organization, which was a third-party to the litigation, had a property interest in

possessing the records and a Fourth Amendment privacy interest in preventing them from

becoming public. See Hubbard, 650 F.2d at 303-07, 426, 426 n.104. In comparison, Zapp

asserts an amorphous claim that the Documents damage “his reputation and interests as a

practicing attorney” and concludes, without explanation, that these interest are “substantial.” See

Motion at 7. Zapp fails to explain how allegations in Ye Gon’s Counterclaim and Zapp’s efforts

to discredit them through his motion for summary judgment substantially injure his reputation.

In light of Hubbard, the Court concludes that Zapp’s nondescript property and reputational

interests are not substantial and do not weigh in favor of sealing the Documents. See Johnson,

951 F.2d at 1278 (instructing the district court on remand to “require appellees to come forward

with specific reasons why the record, or any part thereof, should remain under seal.”).

E. The Possibility of Prejudice to Those Opposing Disclosure

In regards to the fifth Hubbard factor, Zapp argues that “no possible prejudice can be

raised” because Ye Gon has consented to the Motion. Motion at 7. Zapp, however, does not

provide any legal authority or rationale for this conclusion. See generally Motion.

In fact, the Court finds that this Circuit’s relevant case law contradicts Zapp’s contention.

As Zapp is opposing the Documents’ continued public availability, the Court properly considers

under this factor the possibility of prejudice to Zapp from the Documents’ continued disclosure.

See, e.g., Cobell v. Norton, 157 F. Supp. 2d 82, 91 (D.D.C. 2001) (analyzing under the fifth

Hubbard factor the prejudice to the party requesting the sealing of documents). Moreover, for

this factor to weigh in Zapp’s favor, Zapp must have identified how the Documents’ continued

disclosure causes him legal prejudice––i.e., harm in future litigation. See Hubbard, 650 F.2d at

7 321 (finding that “the possibility of prejudice to the defendants by sensational disclosure” may

weigh in favor of sealing the documents when the defendants have yet to be tried). But, as Zapp

does not claim that the Documents’ continued disclosure cause him legal prejudice, the Court

finds that this factor does not weigh in favor of sealing the Documents. See Friedman v.

Sebelius, 672 F. Supp. 2d 54, 60 (D.D.C. 2009) (finding that the fifth Hubbard factor did not

weigh in favor of sealing the documents when “plaintiffs have not claimed that unsealing this

matter would affect them in any future litigation; rather, they refer only to generalized

reputational harm.”).

F. The Purposes for Which the Documents Were Introduced

Zapp argues that the final Hubbard factor indicates that the Documents should be sealed

because (1) the allegations in the Counterclaim “were unsubstantiated and were filed as an

attempt to avoid liability . . . in this case” and (2) the Amended Motion for Summary Judgment

and its exhibits “were filed for the sole purpose of refuting the alleged unsubstantiated

allegations in the Counterclaim.” Motion at 7.

The Court, however, disagrees and finds instead that this factor weighs in favor of the

Documents’ continued disclosure. First, assuming, arguendo, that the Counterclaim was

unsubstantiated, Zapp does not provide legal authority or explanation for his claim that

unsubstantiated pleadings may be sealed under the Hubbard framework. In fact, such objections

to pleadings are better addressed by the Federal Rules of Civil Procedure, not the drastic remedy

of sealing portions of the record. See Fed. R. Civ. P. 12(f) (“The court may strike from a

pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”). Second, the Court

finds that the Documents are meaningfully distinguishable from the documents in Hubbard

8 because, most importantly, Zapp does not assert a privacy interest in the Documents. See

Hubbard, 650 F.2d at 321 (finding that sealing the documents at issue may be appropriate in part

because they were introduced to establish the illegality of a search and seizure and “it would be

ironic indeed if one who contests the lawfulness of a search and seizure were always required to

acquiesce in a substantial invasion of those interests simply to vindicate them.”). Finally, by

filing his Amended Motion for Summary Judgment and its exhibits, Zapp indicated that he

intended for the Court to rely on these filings in adjudicating his dispute with Ye Gon. The

Court finds that this purpose weighs in favor of the continued disclosure of these filings. See,

e.g., Berliner Cocoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130, 135 (D.D.C. 2009) (denying

motion to seal when “[t]he parties filed exhibits under seal for the purpose of proving their cases

to the Court at the summary judgment stage. As such, the parties explicitly intended the Court to

rely on these Documents in adjudicating their dispute.”).

IV. CONCLUSION

After weighing the six Hubbard factors, the Court concludes that only the fact that Zapp

filed the Motion weighs in favor of sealing the Documents, while three factors weigh in favor of

the Documents’ continued disclosure––the need for public access, the extent of previous public

access, and the purposes for which the Documents were introduced. Given “the strong

presumption in favor of public access to judicial proceedings,” Johnson, 951 F.2d at 1277, the

Court shall DENY Zapp’s Consent Motion to Seal Portions of Record. An appropriate Order

accompanies this Memorandum Opinion.

Date: October 28, 2010 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge