Fiorella v. Paxton Media Grp., LLC

• Decision Date: 21 February 2014
• Docket Number: No. 2012–CA–001093–MR.,2012–CA–001093–MR.
• Citation: 424 S.W.3d 433
• Parties: Cindy FIORELLA, Appellant v. PAXTON MEDIA GROUP, LLC, d/b/a The Owensboro Messenger–Inquirer, Appellee.
• Court: Kentucky Court of Appeals

424 S.W.3d 433

Cindy FIORELLA, Appellant

v.PAXTON MEDIA GROUP, LLC, d/b/a The Owensboro Messenger–Inquirer, Appellee.

No. 2012–CA–001093–MR.

Court of Appeals of Kentucky.

Feb. 21, 2014.

Stephen G. Amato, W. Chapman Hopkins, Lexington, KY, for appellant.

Jeremy S. Rogers Louisville, KY, for appellee.

Before ACREE, Chief Judge; LAMBERT and STUMBO, Judges.

OPINION

ACREE, Chief Judge:

Cindy Fiorella appeals a May 21, 2012 order of the Woodford Circuit Court which determined that portions of Fiorella's deposition testimony and accompanying exhibits should not be concealed from public inspection. Following careful consideration, we affirm.

FACTS AND PROCEDURE

In August of 2009, Paula Gastenveld, former President of the Owensboro Community and Technical College (OCTC), filed suit against the Kentucky Community and Technical College System (KCTCS), Fiorella, and a number of other individuals. Gastenveld's complaint set forth claims of defamation, intentional interference with contract, retaliation against a whistleblower, outrageous conduct, and civil conspiracy.

Fiorella, OCTC's Vice President for Workforce and Economic Development, allegedly made defamatory statements about Gastenveld after Gastenveld gave Fiorella a negative performance evaluation and reported to the KCTCS chancellor and an OCTC official that she suspected Fiorella had improperly expended certain college funds. Gastenveld claimed Fiorella's defamatory statements formed the basis of her reassignment, and this she characterized both as retaliatory and as constituting interference with her employment contract.

The parties conducted discovery which included a February 2011 deposition of Fiorella. Fiorella feared that some of the discovery she supplied in her deposition would “be taken out of context by the viewing public, would portray an inaccurate image of Fiorella to the public, and would leave Fiorella with no ability to refute the information.” (Appellant's brief, p. 8). According to Fiorella, portions of this discovery “were sealed by agreement of the parties [, Fiorella and Gastenveld].” To effectuate this agreement, the attorneys for the parties encased the subject materials in envelopes, taped the envelopes shut, and stamped “CONFIDENTIAL” in numerous, conspicuous locations on the envelope, before filing the deposition. The trial court did not enter an order approving the “sealing” of this discovery.

Despite the lack of court sanction, the “sealing” was honored.¹ In May of 2011, deprived of access to the sealed discovery, the Owensboro Messenger–Inquirer filed a motion to intervene for the limited purpose of acquiring that access. The Messenger–Inquirer based its motion on the public's right of access as derived from the First Amendment to the United States Constitution and the common law. Following an evidentiary hearing, the circuit court determined the Messenger–Inquirer had a common law right to access the documents, and the motion was granted over Fiorella's objection.

Before the Messenger–Inquirer actually accessed the records, the circuit court dispensed with all of Gastenveld's claims. The May 21, 2012 order from which the instant appeal is taken states that “on October 13, 2011, the Plaintiff [Gastenveld] and Ms. Fiorella entered into an agreed order dismissing the claims against her.” However, the record does not include any agreed order dismissing. The record reflectsthat, on October 13, 2011, the circuit court entered two orders granting summary judgment in favor of two separately represented, groups of defendants Gastenveld had sued, including Fiorella. ² Those orders dismissed the claims against the original defendants explicitly on CR 56 grounds, not by an agreed order of dismissal.

Still, the Messenger–Inquirer's intervening complaint against Fiorella remained. The circuit court, therefore, instructed the remaining parties to present arguments addressing whether the newspaper's request for access to the records was now moot because the matter had settled. The circuit court ultimately determined that it was not moot and that the records should be accessible to the public. In part, the court was persuaded by the fact that public funds had been expended in settling the case.

This appeal followed. The appellant asks us to reverse the circuit court's decision that the Messenger–Inquirer has a common law right to access certain discovery materials which Fiorella wishes to shield from public inspection.

STANDARD OF REVIEW

A decision regarding public access to its records is a matter within the trial court's sound discretion. Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 325 (Ky.App.2010). Absent an abuse of that discretion, we must affirm.

ANALYSIS

We begin our analysis by noting that both Fiorella and the Messenger–Inquirer cite, among others, the same case in support of their respective positions—Courier–Journal, Inc. v. McDonald–Burkman, 298 S.W.3d 846 (Ky.2009).

Fiorella cites the case for the Supreme Court's statement that “[w]e disagree” with the contention that “because the discovery documents are filed with the court, as required under local rule, they become court records and immediately open to the public.” Id. at 849. On the other hand, the Messenger–Inquirer asserts this passage does not mean “that discovery documents in a trial court's record should automatically be sealed.” (Appellee's brief, p. 14). On the contrary, says the appellee, in McDonald–Burkman “sealing the discovery material [was] necessary to ensure ‘inflammatory, graphic, and possibly irrelevant material [is kept] out of public view until a jury is seated.’ ” McDonald–Burkman, 298 S.W.3d at 850. No such circumstances, argues the Messenger–Inquirer, are present in this case.

At the outset, we dispense with some analysis that typically occurs in cases such as this. The parties agree, and we concur, that, unlike McDonald–Burkman, there is no First Amendment claim at issue in this case. Their briefs focus on the other analysis most typical in such cases—the right of access by press and public to court records based on the common law. However, both parties give short shrift to an elemental and practical step in the analysis, a step typically presumed by the courts—a consideration of the rules of procedure.³

The Supreme Court in McDonald–Burkman barely made mention of the rules of procedure, but it is clear to this Court that consideration of those rules was integral to the analysis, even if only implicitly so. Support for our conclusion can be found by examining the string-cite of federal cases appearing on page 850 of the opinion. Id. When read in the context of those cases, McDonald–Burkman provides all the analysis needed in the case now before us. We will start with a more explicit consideration of the role of our own civil rules.

Impact of rules of procedure on public access to court records

CR 26.03(1) empowers the trial court, upon a showing of good cause, to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” by issuing a protective order denying public access to discovery filed with the court. CR 26.03(1). Logic necessarily leads us to conclude that the reverse also is true—if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.⁴Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984) (approving trial court's finding, under Washington state's procedural rule ⁵ which is virtually identical to CR 26.03(1), that good cause justified a protective order prohibiting public access to discovery filed with the trial court, thereby implicitly finding that such discovery would have been available to public inspection absent demonstration of good cause). In other words, if Fiorella were correct that the public did not have access to any discovery materials even when filed with the trial court, there would be no need whatsoever for CR 26.03(1). We must be quick to say, however, that “[t]his presumption of openness for discovery materials not used at trial is grounded only in the [Civil] Rules and does not derive either from a common law or first amendment right of access.” Hawley v. Hall, 131 F.R.D. 578, 581 (D.Nev.1990) (cited in McDonald–Burkman, 298 S.W.3d at 850).

But, Fiorella argues, what are we to make of the fact that McDonald–Burkman disagreed with the assertion that “because the discovery documents are filed with the court, as required under local rule, they become court records and immediately open to the public”? McDonald–Burkman, 298 S.W.3d at 848–849. On the contrary, said our Supreme Court, “Discovery, whether civil or criminal, is essentially a private process ... to assist trial preparation [and t]he fact that the documents are in the custody of the court does not change their character.” Id. The clear answer is that the Supreme Court made these statements in the context of its analysis of the media's First Amendment argument, not in the context of a civil-rules or common-law argument. In making these statements, our Supreme Court cited United States v. Noriega, 752 F.Supp. 1037 (S.D.Fla.1990), which held that “[a]lthough the press and public have a First Amendment right of access to criminal [and civil] trials, the right of access to judicial records is not of constitutional dimension....” Id. at 1040 (emphasis added). The Court agreed with this statement in Noriega, wrapping up its First Amendment analysis in McDonald–Burkman by stating “we do not believe that there is a constitutional right of access to discovery material, and the Courier–Journal's position in this regard must fail.” McDonald–Burkman, 298 S.W.3d at 849 (emphasis added). As the parties have acknowledged all along, this case, unlike McDonald–Burkman, does not involve the First Amendment constitutional right of access to discovery material. These statements are not...