its Article III powers to determine a case or controversy without ever convening a settlement conference. Thus, it cannot be said that discussions of compromise among parties to a lawsuit, even with a judge in attendance, play a large role in the exercise of Article III judicial power. The presumption of public access in the case of settlement conferences is therefore very low indeed, if not nonexistent. Amodeo II, 71 F.3d at 1050.
(ii). Settlement Proposals Circulated Among the Parties
"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 presumption's reach." Id. Settlement proposals circulated among the parties are arguably even more distant from the court's Article III function. They do not constitute evidence and are also generally not admissible at trial for any purpose. See Fed.R.Evid. 408; Fed.R.Civ.P. 68. Their contents are also uniquely a matter of a party's discretion. Finally, these documents are directed to the opposing parties as an offer of settlement or as a solicitation for such an offer. This is quite apart from papers filed with the court as a predicate for a judicial determination. These documents can thus in no way be said to invoke the power or affect the decisions of the court. Id. Quite simply, these documents are not judicial records. See Enprotech v. Renda, 983 F.2d 17, 20 (3d Cir. 1993). Thus, they do not enjoy any presumption of public access.
(iii). Settlement Conference Statements Provided to the Court
Although settlement conference statements are provided to the court prior to settlement conferences they are not filed with the Clerk and do not become part of the public court record. N.D.N.Y.L.R. 5.7. In the Rule 5.7 statement forms provided to the parties by the Clerk, the parties are asked, inter alia, to disclose any legal issues that, if resolved, would lead to the settlement of the action. In this way it can be said that these statements seek to invoke the judicial power of the court although they are not formal motions and are not treated as such. At most, after discussing the matter with the parties, the court might invite a formal motion on an issue presented in a settlement conference statement. It would seem then that these documents "play a negligible role in the performance of Article III duties," Amodeo II, 74 F.3d at 1050, and thus the presumption of public access is at most, low.
b. Countervailing Interests Militating Against Access
"Once the weight of the presumption is determined, a court must balance competing considerations against it." Id. In this case, the competing consideration is the strong public interest in seeing litigation resolved without resort to the full machinery of justice. See Bank of America Nat. Trust v. Hotel Rittenhouse, 800 F.2d 339, 344 (3d Cir. 1986).
(i). Settlement Conferences
It is well settled that "a federal judge has the power to prevent access to settlement negotiations when necessary to encourage the amicable resolution of disputes." City of Hartford v. Chase, 942 F.2d 130, 135 (2d Cir. 1991). From a practical perspective, few cases would ever reach a nonlitigated end if the press was in attendance at a settlement conference or privy to settlement proposals.
A settlement conference is an opportunity for the parties and the court, acting as an impartial mediator, to have a frank discussion about the value of avoiding a trial. During these colloquies, the parties are often called upon to evaluate both the strengths and weaknesses of their respective cases. At a minimum, the parties would be reticent to make any concessions at a settlement conference if they could expect that their statements would be published to the public at large. This is especially true when the litigation engenders press coverage, the instant case being one such example. In a matter that was of significant concern to the public, it is doubtful that a public settlement conference would ever permit the type of give and take that would lead to an agreed resolution of the dispute. Settlement positions are often extreme and should they be made public a litigant would reasonably fear being judged in the court of public opinion based upon what are nothing more than bargaining positions. These concerns would hardly encourage negotiations. The present case, of interest to the public and the press, clearly presents the need for a private forum in which to explore settlement.
To agree with the proposed intervenors' argument to permit access because of the "vital public interest at issue," would be the death knell of settlement negotiations in cases of this sort. Dkt. No. 136 at 7. As stated by Judge Grady of the Northern District of Illinois:
To say, then, that the public and the press have a right to be present at all conferences in cases involving issues of great public interest is simply to say that traditional settlement conferences could not occur in those cases. The indispensable attitude for settlement--the willingness to concede that the other side has a point--would be absent ...
B.H. v. Ryder, 856 F. Supp. 1285, 1290 (N.D. Ill. 1994). (ii) & (iii). Settlement Proposals Circulated Among the Parties & Settlement Conference Statements Provided to the Court
The exchange of written settlement proposals and the opportunity to review an adversary's settlement conference statement serves a purpose similar to a face-to-face settlement conference. These devices give a litigant an occasion to sound out an opponent's position in an effort to determine if a middle ground exists for compromise. Just as privacy encourages candor and frank disclosure in a settlement conference, assuring the confidentiality of a party's written settlement position has a similar effect and, likewise, encourages the resolution of the dispute. These devices have also played a constructive role in moving the instant case toward a settlement.
c. The Balance
As noted above, the Court finds that the presumption of public access to settlement conferences, settlement proposals, and settlement conference statements is very low or nonexistent under either constitutional or common law principles. Weighed against this presumption is the strong public policy which encourages the settlement of cases through a negotiated compromise. The instant litigation is quite complex and has been pending for nine years. It is a case which has a dire need of the opportunity to reach a negotiated end. Fortunately, it appears that the long negotiations that have preceded this order have begun to yield fruit. The parties should be encouraged in that pursuit. The proposed intervenors object to private negotiations on the ground that this will leave the public with a settlement to review that is a fait accompli. In a perfect world, the public would be kept abreast of all developments in the settlement discussions of lawsuits of public interest. In our world, such disclosure would, as discussed above, result in no settlement discussions and no settlements. The argument is thus well-meaning but misplaced.
After a careful consideration of the history of these proceedings, it is the Court's opinion that granting the relief sought by the intervenors, which would open all of the settlement negotiation processes to the public, would delay if not altogether prevent a negotiated settlement of this action. This finding alone warrants the denial of the motion. For this reason, the Court also cannot find that the sealing order was improvidently entered in this case.
Contrary to their contentions, the Court finds that the proposed intervenors' interest in ascertaining the facts surrounding the settlement of this action is adequately protected. Important in this finding is the distinction between what has been sealed and what has not been sealed. The parties have represented, and it is the understanding of the Court, that the ultimate settlement agreement reached, if any, will be a subject of public record and will be put before the public for comment before being ratified by the Town Board of the Town of Moreau. Presently, the sealing order only permits the parties to negotiate in private, nothing more. An entirely different question would be presented if the parties sought an order sealing the final consent decree and its related settlement documents. See City of Hartford, 942 F.2d at 135-36.
Similarly, since the Court's record and the proposed settlement agreement will be available to the public, the Court also finds that the proposed intervenors have not demonstrated either extraordinary circumstances or a compelling need for the order to be modified or vacated. Lastly, the Court notes that the public is not without a champion in these settlement negotiations. The State of New York remains a party to these proceedings and has represented that it bears the interests of the public in mind, including the public's interest in having an opportunity to comment on any proposed settlement agreement. Trans. Oral Arg. at 23.
Accordingly, the portion of the proposed intervenors' application which requests an order permitting them to "obtain information concerning the proposed actions of elected officials in connection with making commitments to other parties with respect to Town resources and with respect to positions of the Town regarding settlement of claims involving significant pollution and the water supply of the Town," Dkt. No. 137, must be DENIED. This application is, however, denied without prejudice to contesting any order that would seal any settlement agreement reached in this action.
D. Mr. Gleason's Possession of the Town's Rule 5.7 Statement
The proposed intervenors do not cite any authority which supports their request for an order that would permit Mr. Gleason to turn over the errantly sent Rule 5.7 statement to his client. In opposition, the Town notes that Formal Opinion 92-368 of the American Bar Association provides that
A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstance where it is clear they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them.
ABA/BNA Lawyer's Manual on Professional Conduct, ABA Formal Op. 92-368 at 1001-155 (1993). The dispute between Messrs. Oliver and Gleason would seem to fit precisely within the scope of this opinion. However, neither party has demonstrated how this matter constitutes a justiciable controversy so as to warrant the issuance of the declaration sought by Mr. Gleason or the injunction sought by Mr. Oliver. Of course, the Court will, if necessary, enforce the Code of Professional Responsibility of the American Bar Association (the "Code") among the members of the bar. See N.D.N.Y.L.R. 83.4 (j). But here no violation of the Code's provisions have been identified. Nor is Mr. Gleason a party to this action. The mere fact that a party has erroneously disclosed a document which that party would rather keep confidential does not automatically bring the recipient within the Court's jurisdiction. Furthermore, the terms of the sealing order plainly do not bind Mr. Gleason. The Court is not in the business of lending a judicial imprimatur to conduct that while legal, may raise ethical issues. Mr. Gleason is free to do as his intelligence and sense of professional ethics direct him. Mr. Oliver has the same prerogative. The Court does note however, that "the credibility and professionalism inherent in doing the right thing can, in some significant ways, enhance the strength of one's case, one's standing with opposing counsel, and one's stature before the court." ABA/BNA Lawyer's Manual on Professional Conduct, ABA Formal Op. 92-368 at 1001-161 (1993).
For the foregoing reasons, it is hereby
ORDERED that the relief sought in the Order to Show Cause filed on April 28, 1997 by the proposed intervenors Glens Falls Newspapers, Inc. d/b/a The Post Star and Brendan Lyons is DENIED in all respects; and it is
FURTHER ORDERED that the Clerk serve a copy of this order on all parties by regular mail.
IT IS SO ORDERED.
September 18, 1997
Albany, New York
LAWRENCE E. KAHN
UNITED STATES DISTRICT JUDGE
The Court's Memorandum-Decision and Order entered on
September 18, 1997 contains a typographical error. The first clause of the last sentence on page 3 of the order continuing on to page 4 is amended to read as follows:
Following a settlement conference held on March 17, 1997, all parties to the litigation consented to the entry of the following order (the "sealing order"):