Another ruling against sealing records in defamation cases


Of Reich v. Fairleigh Dickinson Univ.Magistrate Judge Jessica S. Allen (DNJ) decided on Friday:

This lawsuit arises out of Plaintiff’s enrollment in the Yeshiva program at FDU’s Petrocelli College of Continuing Studies and a dispute over FDU’s tuition for a class and Plaintiff’s failing grade as a result of the false accusations of plagiarism from a professor…. [O]On December 15, 2021, FDU requested leave to file the instant motion to assert counterclaims, stating that it had recently become aware of plaintiff’s allegedly defamatory online communications and postings about FDU and certain of his employees.

The court (among other things) allows FDU to assert its defamation counterclaims, as “plaintiff’s online statements constitute defamatory communications beyond mere statements of opinion given the context of those statements”; the statements are:

[a.] “Leon Kurland is a liar and collects money for lessons but does not show up. Kurland is also involved in discrimination and retaliation against students who do not follow and support all of his ideas.

[b.] The FDU “participate in discrimination based on age, color and religion”.

[c.] FDU is a ‘[h]orbible college with corrupt administrators and hateful educators.

[d.] The FDU has “corrupt university administrators” who engage in “fraud and deception”.

[e.] The FDU is a “fraudulent university with a history of defrauding students and enduring corruption”. …

[g.] Former FDU General Counsel John Codd “scammed” “Vip Level’s” father (aka Reich) “out of over $5,000 through a wire and wire transfer scam…”.

But the court refuses to allow the FDU to seal the defamatory remarks:

There is a presumptive right of access to procedural documents, as well as requests for non-communication and supporting documents. Equally important, a review of FDU’s proposed redactions demonstrates that the defamatory statements are not of a confidential nature and that the parties have not previously treated them as such.

First, on their face, these statements, while potentially embarrassing, do not reveal sensitive personal information about individuals. Indeed, in the context of its counterclaim for defamation, FDU argues that the statements are false.

Second, FDU asserts that Plaintiff posted and published these defamatory statements online. As such, these defamatory statements have already been made public.

Finally, the parties did not treat the defamatory statements as confidential in the documents filed with the courts. In its original and amended complaint, plaintiff refers to many of the same defamatory statements accusing FDU of discriminatory and unlawful behavior in support of its legal claims. Similarly, FDU referenced some of these defamatory statements in its publicly filed briefs in court.

In any event, the Court finds that FDU has not identified any legitimate private interest justifying the sealing of the declarations, and the Court finds that such an interest does not exist. Moreover, the potentially embarrassing nature of the defamatory statements alone does not rise to the level of a clearly defined injury, which warrants sealing.

FDU is essentially asking this Court to litigate its proposed counterclaims in secrecy to avoid any potential embarrassment to those who were the subject of Plaintiff’s allegedly defamatory statements. Such a remedy directly contradicts the presumed right of public access to pleadings and judicial proceedings. See Holmes versus Grambling (ND Ga. 17 Oct. 2014) (stating that “[t]The logical conclusion of plaintiff’s argument is that whenever someone sues for defamation based on potentially embarrassing comments, the plaintiff should be allowed to sue anonymously and with the record under seal”).

I think this result is quite correct, as I have already said (both on the blog and in court, see, for example, Parson v. Farley and Manhattan Telecommunications Corp. against Granite Telecommunications, LLC): When judges are asked to restrict the liberty of parties, confiscate their property and (in defamation cases) punish their speech, the public must be able to monitor what the judges do and the arguments presented to them.

Indeed, libel law has long recognized this principle: while citing someone’s defamatory accusations is itself often defamatory, the “fair comment” privilege provides an exception for citing accusations made in a legal proceeding:

[T]he privilege acts as a watchdog function that recognizes both the public’s duty to control official conduct and the security that publicity lends to the proper administration of justice.

Free access to court records performs the same functions; in the oft-repeated words of Justice Holmes,

It is desirable that the trial of cases should take place in the public eye, not because disputes between citizens are of public interest, but because it is of the utmost importance that those who administer justice always act in the sense of public responsibility, and that each citizen must be able to ascertain by his own eyes the manner in which a public duty is accomplished.

And a yeshiva at “Fairleigh Dickinson University”? Who knew?


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