Access Cardiosystems, Inc. et al v. Fincke

OCR transcription for search; preserved printed pages are authoritative

Case 05-04076 Doc93_ Filed 10/18/05 Entered 10/18/05 17:00:14 Desc Main
Document Page 1of4

Anited States Bankruptey Court
Bistrict of Massachusetts

Chapter 11
In re: Case No. 05-40809-HJB
ACCESS CARDIOSYSTEMS, INC.

Debtor

ACCESS CARDIOSYSTEMS, INC.,
JAMES A. RADLEY, JOHN J.
MORIARTY, RICHARD F.
CONNOLLY, JR. AND JOSEPH R.
ZIMMELL,

Adversary Proceeding
No. 05-04076-HJB

Plaintiffs
OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF
ACCESS CARDIOSYSTEMS, INC.,

Plaintiff-Intervenor
V.

RANDALL FINCKE,

Defendant

Nee ee ee ee ee ee ee ee ee eee eS

ORDER DENYING DEFENDANT RANDALL FINCKE’S AMENDED MOTION TO FILE
PAPERS UNDER SEAL

Before the Court is “ Defendant Randall Fincke’s Amended Motion to File Papers
Under Seal” (the “Amended Motion to Impound”). The instant adversary proceeding,

removed to this Court from the Massachusetts Superior Court Department of the Trial

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 05-04076 Doc93_ Filed 10/18/05 Entered 10/18/05 17:00:14 Desc Main
Document Page 2 of 4

Court, relates to an intellectual property dispute. It has been vigorously litigated. Before
the Court are also cross-motions by the Plaintiffs and Defendant for full or partial
summary judgment.

In or about August of 2005, the parties were able to resolve an outstanding
discovery dispute with respect to the confidentiality of their respective records. On
August 4, 2005, they presented to this Court a proposed Stipulated Protective Order,
which order the Court executed on August 8, 2005 (the “Protective Order’). In addition
to various and (overly) complex provisions designed to govern the parties’ behavior
towards one another with respect to the confidentiality of certain documents, the
Protective Order also deals with the filing of documents with the Court believed by the
filer to be confidential. With respect to the latter, Paragraph 12 of the Protective Order
provides: “If a party wishes to file Confidential or Highly Confidential Information [ a
designation made by the parties with an opportunity for objection] with the Court, such

filing shall be accomplished in accordance with [Massachusetts Local Bankruptcy Rule]

9018-1.”

Massachusetts Local Bankruptcy Rule 9018-1 (Rule 9018-1") provides:

(a) For cause reflecting a genuine risk of substantial harm to any party in
interest, the court may order that some or all of the papers in the case be
impounded by the clerk. Such impounded papers shall be maintained
under clerk custody separate and apart from files to which the public has
access; no computer or other images thereof shall be made for public
viewing.

(b) A request for impoundment shall be made by motion. The papers sought
to be impounded shail be placed in a sealed envelope or container
conspicuously marked “filed subject to pending impoundment motion,” and
shall be filed simultaneously with the motion. The motion shall contain (i)
a statement under oath setting forth the grounds for impoundment, (ii) a

2

Case 05-04076 Doc93_ Filed 10/18/05 Entered 10/18/05 17:00:14 Desc Main
Document Page 3 of 4

statement of the earliest date on which the impounding order may be
lifted, or a statement, supported by good cause, that the material should
be impounded until further order of the court, and (iii) suggested custody
arrangements for the post-impoundment period, if any.

(c) The court shall review the papers sought to be impounded in camera. If
the motion for impoundment is denied, the papers shall be returned to the
party requesting impoundment and, if refiled, shall be filed with other
pleadings in the case to which public access is allowed. If the motion for
impoundment is granted, the order of impoundment shall be filed with the
pleadings in the case. The impounded papers shall be transferred to the
custody of the clerk for special storage. The clerk shall attach a copy of
the order of impoundment to the envelope or other container holding the
impounded material. Thereafter, access to the impounded papers shall be
limited to the court, the clerk, the party for whose benefit the impoundment
order was granted, and any party who, upon motion, notice to the party for
whose benefit the impoundment order was granted and an opportunity to
be heard, receives relief from the impoundment order in whole or in part.

(d) If the impoundment order expires by its terms but provides no
arrangements for post-impoundment custody of the impounded papers, or
if the impoundment order provides for post-impoundment custody of the
impounded papers, but the impounded papers are nol limely retrieved,
the clerk shall provide notice of no less than thirty (30) days to the party
for whose benefit the impoundment order was granted, or his, her or its
attorney, that the said papers shall, in the absence of timely objection
made prior to the expiration of the notice period, be placed in the public
file.

(e) For good cause shown by affidavit attesting to a risk of irreparable harm if
advance notice is given to any other party, the motion for impoundment
may be heard ex-parte.

On October 7, 2005, in conjunction with his motion for summary judgment,
defendant Randall Fincke filed a “Motion to File Papers Under Seal” (the “First Motion to
Impound”), citing Paragraph 12 of the Protective Order and Rule 9018-1. But,
notwithstanding section (b) of Rule 9018-1, the First Motion to Impound failed to set
forth, under oath, the grounds for impoundment, the date by which impoundment would
expire and the post-impoundment custody arrangements. Accordingly, on October 12,

2005, the Court entered the following order: “DENIED WITHOUT PREJUDICE. THE

Case 05-04076 Doc93_ Filed 10/18/05 Entered 10/18/05 17:00:14 Desc Main
Document Page 4 of 4

MOTION FAILS TO COMPLY WITH MLBR 9018-1(b). MOVANT SHOULD EITHER
AMEND AND REFILE THE MOTION OR MAKE ARRANGEMENTS TO RETRIEVE ITS
MATERIALS HELD BY THE COURT.”

The instant Amended Motion to Impound was filed shortly thereafter. It sets forth
the date by which impoundment may expire and the post-impoundment custody
arrangements. But, with respect to the grounds for impoundment, the movant says only,
albeit under oath, that the documents have been marked “Confidential” or “Highly
Confidential.” That is not what the Court had in mind in its October 12, 2005 Order.
Rule 9018-1 is designed not only to protect parties from the improper disclosure
of sensitive information, but also to protect the Clerk’s Office from the burden of
impounding information which need not be impounded. In the Amended Motion to
Impound, the movant says only that the material is confidential because the movant
says it is so. That is not enough. Rule 9018-1(b) requires that the movant provide
grounds that have substance.

The Amended Motion to Impound is DENIED WITHOUT PREJUDICE. The Court
reserves the right to strike the pleadings sought to be protected and act accordingly in
their absence, if a second amended motion to impound -- in full compliance with Rule

9018-1 -- is not filed, together with a motion for expedited determination, by October 21,

LZ
United States Bankruptcy Judge

2005.

DATED: October 18, 2005