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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS SUPERIOR COURT
CIVIL ACTION
NO.: 2013-04165-D
SARAH LERNER, PPA *
CHANA LERNER and *
YSHAYU LERNER, CHANA*
LERNER, Individually and *
YSHAYU LERNER, Individually *
*
Plaintiffs, *
vs. *
* JuL 31 ai?
REGAL WARE, INC. and *
BOSTON SHOWCASE *
COMPANY, INC., * fey,
Defendants. *
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO SEAL EXHIBIT A
ATTACHED TO DEFENDANT’S MOTION TO BIFRUCATE
Plaintiff, Sarah Lerner, (“Plaintiff”) hereby respectfully submits this Opposition to
Defendant Regal Ware, Inc.’s (“Regal”) Motion to Impound the photographs of the Plaintiff
which depict the injuries she sustained after a coffee urn manufactured, designed and distributed
by Regal spilled boiling hot water over the Plaintiff's body. In addition, the Plaintiff respectfully
submits the attached affidavit. Seé Exhibit A. Regal’s motion flies in the face of Massachusetts
public policy favoring common access to case records, and fails to advance a good cause basis
upon which the photographs should ‘be impounded. The Plaintiff respectfully requests that
Regal's motion be denied.
A. Rule
An order of impoundment can enter only upon a written finding of good cause. URIP Rule
1(a); URIP Rule 8(a). See also Com. v. Fujita, 470 Mass. 484, 489-90, 23 N.E.3d 882, 888, 43Media L. Rep. (BNA) 1192 (2015) (in assessing whether “good cause” is established, the court
should bear in mind that “impoundment is always the exception to the rule”), quoting Republican
Co. v. Appeals Court, 442 Mass. 21 8, 222, 812 N.E.2d 887 (2004); New England Internet Cafe.
LLC v. Clerk of Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83, 966
N.E.2d 797 (2012); In.re Globe Newspaper Co., Inc., 461 Mass. 113, 120-121, 958 N.E.2d 822,
829, 40 Media L. Rep. (BNA) 1097 (2011); Com. v. Goncalves, 32 Mass. L, Rptr. 655, 2015 WL
2062232, *3 (Mass. Super. Ct. 2015) (Chin, J.); ‘Tourtellotte Solutions, Inc. v. Tradestone
Software, Inc., 20 Mass. L. Rptr. 269, 2005 WL 3670944, *2 (Mass. Super. Ct. 2005) (van
Gestel, J.).
URIP Rule 7(b) provides that in determining good cause, the court “shall consider all
relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii)
the type of information and the privacy interests involved, (iii) the extent of community interest,
(iv) constitutional rights, and (v) the reason(s) for the request.” URIP Rule 7(b). Amended URIP
Rule 7 thus encompasses Massachusetts case law developed under prior Rule 7, which contained
a similar balancing standard but did not list all the factors listed in amended Rule 7. See URIP
Rule 7—Committee Notes; URIP Rule 8—Committee Notes.
“To determine whether good cause is shown, a judge must balance the rights of the parties
based on the particular facts of each case.” Com... Fujita, 470 Mass. 484, 489-90, 23 N.E.3d
$82, 888, 43 Media L. Rep. (BNA) 1192 (2015) (in assessing whether “good cause” is
established, the court should bear in mind that “impoundment is always the exception to the
rule”)
As noted by the Supreme Judicial Court, impoundment proceedings by their nature,depend
on “the facts at hand,” and must respond to “the unique needs of the parties.” New EnglandInternet Cafe, LLC v. Clerk of Superior Court for Criminal Business in Suffolk County, 462
Mass. 76, 85 (2012). This is why judges enjoy flexibility in crafting appropriate remedies that
balance the legitimate interests of the parties in investigative secrecy, privacy, property, and a
fair trial. New England Internet Cafe. LLC v. Clerkcof Superior Court for Criminal Business in
Suffolk County, 462 Mass. 76, 86 (2012).
“{f there is good cause to impound documents, a judge is required to tailor the scope of the
impoundment order so that it does not exceed the need for impoundment.” URIP Rule 8(c) (“The
court shall tailor the scope of the impoundment order so that it does not exceed the need for
impoundment.”); see also URIP Rule 8 Committee Notes (“Impoundment should be no more
extensive than necessary.”). This amendment was added specifically to address standards
determined by the Supreme Judicial Court under the prior Rule 8. See, e.g., Adamis v. Adams,
459 Mass. 361 (2011) (noting that order of impoundment entered by Probate Court did not
comply with Rules 7 and 8 where the court made no written findings of good cause and failed to
specify duration of order); Republican Co. v. Appeals-Court, 442 Mass. 21 8, 223 (“the public's
right of access to judicial records, including transcripts, evidence, memoranda, and-court orders,
may be restricted, but only upon a showing of ‘good cause’.”); Boston Herald. Inc. v. Sharpe,
432 Mass. 593, 605 (2000); McCormack v. Zimmerman, 18 Mass. L. Rptr. 589, 2005 WL
127036 (Mass. Super. Ct. 2005) (van Gestel, J.).
The meaning of “good cause” to impound must be understood in light of this compelling
interest and narrowly tailored standard. It is important to remember that Rule 7 of the Uniform
Rules permits an order of impoundment “for good cause shown and in accordance with
applicable law.” Uniform Rules, Rule 7 (emphasis added). In adding this second clause, the
Supreme Judicial Court acknowledged that the meaning of “good cause” must be consistent withthe common law and constitutional presumption of openness in judicial proceedings.
Consequently, the meaning of “good cause” must reflect the constitutional rights at stake in
closing court records to the public, and the strict standard that must be met to override those
constitutional rights.
B. ARGUMENT
a. There Is No Good Cause For Impounding Exhibit A To Defendant’s Motion
to Bifureate
Regal’s motion articulates only one ground in their motion for impounding Exhibit A.
Regal states: “The photos, however, are exceedingly revealing and not a matter appropriate for
public consumption or in the public interest.” However, in the attached affidavit, Regal states
that Exhibit A “depict Sarah Lerner’s burn injuries in graphic occasionally bloody detail.” In
addition, Regal states that “the plaintiff is nude or nearly nude in some of the photos.”
Regal’s motion simply does not meet the factors to demonstrate good cause. First, to
address the nature of the parties and controversy, as this is a products liability case it is essential
for the jury to see the pictures of the injuries sustained by the Plaintiff. A contested issue among
the parties throughout the litigation has been the extent of her injuries. The pictures clearly
depict how serious the injuries sustained were and for that reason they should not be impounded.
Second, the pictures do not reveal the name of the Plaintiff or her face and therefore her
privacy interests are maintained. Furthermore, her parents who are entitled to make decisions
regarding her privacy interests would like to have the photos introduced as evidence. The type
of information simply depicts the damages which is an essential element of the case that the
Plaintiff must prove to prevail.b. Fundamental Fairness requires that the Defendant’s Motion is denied
Regal’s motion asks the Court to impound materials that support the Plaintiff's case by
demonstrating the extent of the injuries the Plaintiff sustained. If the photographs are
impounded, the Plaintiff is unable to prove an essential element of her case: the damages she
suffered. If this Court determines that the photos must be impounded, the Plaintiff respectfully
requests that the order be narrowly tailored to exclude only the photographs that the Court
determines should be subject to impoundment as URIP Rule 8(c) dictates.
ec. Conclusion
WHEREFORE, for all of the foregoing reasons, the Plaintiff respectfully request that the
Court deny Defendant’s Motion to Impound Exhibits A to their motion to bifurcate.
Respectfully Submitted.
The Plaintiffs,
bye ] CD
FON LYONS
James Swartz, Esq. (BBO #556920)
Swartz & Swartz
10 Marshall Street
Boston, MA 02108
617-742-1900
jswartz@swartzlaw.com
Date:*) } I llCERTIFICATE OF SERVICE
1, James Swartz, do hereby certify that on this day I have served a copy of Plaintiff's
Opposition to Defendant’ s Motion to Seal upon the defendant:
BY EMAIL
Christopher J. Sullivan, Esq.
Peter Ghattas, Esq.
Sullivan & Associates, LLC
500 West Cummings Park, Suite 4700
Woburn, MA 01801
csullivan@sullivanlitigation.com
pghattas@sullivaanlitigation.com
12/17
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Ha COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS SUPERIOR COURT CIVIL ACTION NO.: 2013-04165-D SARAH LERNER, PPA * CHANA LERNER and * YSHAYU LERNER, CHANA* LERNER, Individually and * YSHAYU LERNER, Individually * * Plaintiffs, * vs. * * JuL 31 ai? REGAL WARE, INC. and * BOSTON SHOWCASE * COMPANY, INC., * fey, Defendants. * PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO SEAL EXHIBIT A ATTACHED TO DEFENDANT’S MOTION TO BIFRUCATE Plaintiff, Sarah Lerner, (“Plaintiff”) hereby respectfully submits this Opposition to Defendant Regal Ware, Inc.’s (“Regal”) Motion to Impound the photographs of the Plaintiff which depict the injuries she sustained after a coffee urn manufactured, designed and distributed by Regal spilled boiling hot water over the Plaintiff's body. In addition, the Plaintiff respectfully submits the attached affidavit. Seé Exhibit A. Regal’s motion flies in the face of Massachusetts public policy favoring common access to case records, and fails to advance a good cause basis upon which the photographs should ‘be impounded. The Plaintiff respectfully requests that Regal's motion be denied. A. Rule An order of impoundment can enter only upon a written finding of good cause. URIP Rule 1(a); URIP Rule 8(a). See also Com. v. Fujita, 470 Mass. 484, 489-90, 23 N.E.3d 882, 888, 43Media L. Rep. (BNA) 1192 (2015) (in assessing whether “good cause” is established, the court should bear in mind that “impoundment is always the exception to the rule”), quoting Republican Co. v. Appeals Court, 442 Mass. 21 8, 222, 812 N.E.2d 887 (2004); New England Internet Cafe. LLC v. Clerk of Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83, 966 N.E.2d 797 (2012); In.re Globe Newspaper Co., Inc., 461 Mass. 113, 120-121, 958 N.E.2d 822, 829, 40 Media L. Rep. (BNA) 1097 (2011); Com. v. Goncalves, 32 Mass. L, Rptr. 655, 2015 WL 2062232, *3 (Mass. Super. Ct. 2015) (Chin, J.); ‘Tourtellotte Solutions, Inc. v. Tradestone Software, Inc., 20 Mass. L. Rptr. 269, 2005 WL 3670944, *2 (Mass. Super. Ct. 2005) (van Gestel, J.). URIP Rule 7(b) provides that in determining good cause, the court “shall consider all relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request.” URIP Rule 7(b). Amended URIP Rule 7 thus encompasses Massachusetts case law developed under prior Rule 7, which contained a similar balancing standard but did not list all the factors listed in amended Rule 7. See URIP Rule 7—Committee Notes; URIP Rule 8—Committee Notes. “To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case.” Com... Fujita, 470 Mass. 484, 489-90, 23 N.E.3d $82, 888, 43 Media L. Rep. (BNA) 1192 (2015) (in assessing whether “good cause” is established, the court should bear in mind that “impoundment is always the exception to the rule”) As noted by the Supreme Judicial Court, impoundment proceedings by their nature,depend on “the facts at hand,” and must respond to “the unique needs of the parties.” New EnglandInternet Cafe, LLC v. Clerk of Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 85 (2012). This is why judges enjoy flexibility in crafting appropriate remedies that balance the legitimate interests of the parties in investigative secrecy, privacy, property, and a fair trial. New England Internet Cafe. LLC v. Clerkcof Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 86 (2012). “{f there is good cause to impound documents, a judge is required to tailor the scope of the impoundment order so that it does not exceed the need for impoundment.” URIP Rule 8(c) (“The court shall tailor the scope of the impoundment order so that it does not exceed the need for impoundment.”); see also URIP Rule 8 Committee Notes (“Impoundment should be no more extensive than necessary.”). This amendment was added specifically to address standards determined by the Supreme Judicial Court under the prior Rule 8. See, e.g., Adamis v. Adams, 459 Mass. 361 (2011) (noting that order of impoundment entered by Probate Court did not comply with Rules 7 and 8 where the court made no written findings of good cause and failed to specify duration of order); Republican Co. v. Appeals-Court, 442 Mass. 21 8, 223 (“the public's right of access to judicial records, including transcripts, evidence, memoranda, and-court orders, may be restricted, but only upon a showing of ‘good cause’.”); Boston Herald. Inc. v. Sharpe, 432 Mass. 593, 605 (2000); McCormack v. Zimmerman, 18 Mass. L. Rptr. 589, 2005 WL 127036 (Mass. Super. Ct. 2005) (van Gestel, J.). The meaning of “good cause” to impound must be understood in light of this compelling interest and narrowly tailored standard. It is important to remember that Rule 7 of the Uniform Rules permits an order of impoundment “for good cause shown and in accordance with applicable law.” Uniform Rules, Rule 7 (emphasis added). In adding this second clause, the Supreme Judicial Court acknowledged that the meaning of “good cause” must be consistent withthe common law and constitutional presumption of openness in judicial proceedings. Consequently, the meaning of “good cause” must reflect the constitutional rights at stake in closing court records to the public, and the strict standard that must be met to override those constitutional rights. B. ARGUMENT a. There Is No Good Cause For Impounding Exhibit A To Defendant’s Motion to Bifureate Regal’s motion articulates only one ground in their motion for impounding Exhibit A. Regal states: “The photos, however, are exceedingly revealing and not a matter appropriate for public consumption or in the public interest.” However, in the attached affidavit, Regal states that Exhibit A “depict Sarah Lerner’s burn injuries in graphic occasionally bloody detail.” In addition, Regal states that “the plaintiff is nude or nearly nude in some of the photos.” Regal’s motion simply does not meet the factors to demonstrate good cause. First, to address the nature of the parties and controversy, as this is a products liability case it is essential for the jury to see the pictures of the injuries sustained by the Plaintiff. A contested issue among the parties throughout the litigation has been the extent of her injuries. The pictures clearly depict how serious the injuries sustained were and for that reason they should not be impounded. Second, the pictures do not reveal the name of the Plaintiff or her face and therefore her privacy interests are maintained. Furthermore, her parents who are entitled to make decisions regarding her privacy interests would like to have the photos introduced as evidence. The type of information simply depicts the damages which is an essential element of the case that the Plaintiff must prove to prevail.b. Fundamental Fairness requires that the Defendant’s Motion is denied Regal’s motion asks the Court to impound materials that support the Plaintiff's case by demonstrating the extent of the injuries the Plaintiff sustained. If the photographs are impounded, the Plaintiff is unable to prove an essential element of her case: the damages she suffered. If this Court determines that the photos must be impounded, the Plaintiff respectfully requests that the order be narrowly tailored to exclude only the photographs that the Court determines should be subject to impoundment as URIP Rule 8(c) dictates. ec. Conclusion WHEREFORE, for all of the foregoing reasons, the Plaintiff respectfully request that the Court deny Defendant’s Motion to Impound Exhibits A to their motion to bifurcate. Respectfully Submitted. The Plaintiffs, bye ] CD FON LYONS James Swartz, Esq. (BBO #556920) Swartz & Swartz 10 Marshall Street Boston, MA 02108 617-742-1900 jswartz@swartzlaw.com Date:*) } I llCERTIFICATE OF SERVICE 1, James Swartz, do hereby certify that on this day I have served a copy of Plaintiff's Opposition to Defendant’ s Motion to Seal upon the defendant: BY EMAIL Christopher J. Sullivan, Esq. Peter Ghattas, Esq. Sullivan & Associates, LLC 500 West Cummings Park, Suite 4700 Woburn, MA 01801 csullivan@sullivanlitigation.com pghattas@sullivaanlitigation.com 12/17