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
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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
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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.
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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.
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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.
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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
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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
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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
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