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10-BK 31607 GARLOCK LLC, et. al., SEALING TECHNOLOGIES Chapter 11 Debtors. Jointly Administered

MEMORANDUM OF LAW IN SUPPORT OF MOTION BY LEGAL NEWSLINE TO OPEN PROCEEDINGS TO THE PUBLIC I. INTRODUCTION Legal Newsline is an online news publication that has been covering the estimation trial in the above-captioned bankruptcy case (the Garlock case). On July 26, 2013, this Court ordered the proceedings to be closed to the news media and the public during portions of the testimony of Professor Lester Brickman. As far as can be discerned from the record, the closure was contrary to procedural safeguards and substantive rights associated with the First Amendments protection of the right of access to the courts. Legal Newsline seeks to intervene and brings this motion to ensure that the remainder of the ongoing trial proceedings will be kept open to Legal Newsline and other members of the news media and the public, and that an appropriate remedy will be provided for the closure of a portion of the proceedings on July 26, 2013. II. BACKGROUND FACTS Legal Newsline is an internet-based newswire owned by the Madison County Record, Inc. Founded in December 2006, Legal Newsline provides news coverage of court proceedings

across the United States that have an impact on the business community. (See accompanying Declaration of Thomas K. Kim, 1-2.) Legal Newsline has reported on key developments in the Garlock case. Recently, it has been covering the trial proceedings being held to determine the debtors estimated liability for current and future asbestos claims. On July 26, 2013, Legal Newsline reporter Thomas K. Kim was present when the courtroom was closed to members of the news media and the public during a portion of the testimony of Professor Lester Brickman. Mr. Kims request to delay closing the proceedings until Legal Newslines attorney could be heard on the issue of keeping the hearing open to the public was denied. (Kim Decl. 4-6.) Legal Newsline is unaware of the precise nature of the concerns that prompted closing the proceedings during Professor Brickmans testimony, as the Court did not state the basis for its decision at the time the courtroom was closed. Nor does the court file appear to include (a) any statement of the basis for the Courts decision to close the proceedings to the public, (b) any specific factual findings regarding its decision to close the proceedings to the public, or (c) any indication that the Court considered and rejected less restrictive alternatives to closing the proceedings to the public. (Kim Decl. 7.) Closure of portions of the estimation trial has prevented Legal Newsline from gathering and disseminating to the public comprehensive news coverage of the proceedings in the Garlock case. (Id., 8.) Legal Newsline has brought this emergency motion due to its concerns about both the closure on July 26 and the risk that additional closures could otherwise occur.




The First Amendment confers a presumptive right of access to judicial proceedings. Safeguarded by procedural requirements that ensure courts are closed in only the rarest of cases and to the least extent necessary, the right of access preserves and promotes the publics confidence in the fairness of court proceedings. Yet as best Legal Newsline has been able to determine, closure of the proceedings during the testimony of Professor Brickman did not comport with either the prescribed procedures or the substantive guarantee. The constitutional underpinning of the presumptive right of access to judicial proceedings is beyond cavil. See, e.g., Virginia Dept of State Police v. Washington Post, 386 F.3d 567, 57578 (4th Cir. 2004), cert. denied, 544 U.S. 949 (2005) (First Amendment right of access required unsealing of documents filed in civil lawsuit); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1067-75 (3d. Cir. 1984) (First Amendment embraces right of access to civil trials). This

presumptive right of access extends to bankruptcy proceedings. E.g., In re Vance, 176 B.R. 772, 778 (Bankr. W.D. Va. 1995) (a member of the public, including a member of the press, should also have the right to attend a creditors meeting); In re Astri Inv. Mgmt. & Sec. Corp., 88 B.R. 730 (D. Md. 1988) (same). The United States Supreme Court has explained that [t]he value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508 (1984) (emphasis in original). In modern times, [i]nstead of


acquiring information about trials by firsthand observation , people now acquire it chiefly through the print and electronic media. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980) (plurality opinion). Thus, members of the news media act as surrogates for the public and are provided courtroom access to enable them to report what people in attendance have seen and heard, furthering public understanding of the rule of law and public acceptance of both the process and its results. Id. at 570, 573. B. Applicable Legal Standard and Prescribed Procedure Governing Requests to Restrict Access to Judicial Proceedings

To overcome the First Amendments presumptive right of access to the courts, those opposing access must demonstrate that limits on access are necessary to serve a compelling government interest. Even when that showing can be made, it must also be demonstrated that the means are narrowly tailored to serve that interestin other words, that there are no less restrictive alternatives. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). In applying this strict scrutiny standard, courts are required to adhere to stringent procedural requirements. 1 They must (1) give adequate notice to the public that the courtroom will be closed; (2) provide the public with an opportunity to object before being excluded;

These procedural requirements also apply to the sealing of any documents or portions of the record from the public. See In re Washington Post Co., 807 F.2d 383, 393 n.9 (4th Cir. 1986) (Because we hold that the First Amendment right of access extends to documents as well as to hearings, requests for the sealing or unsealing of documents must also be evaluated under these constitutional tests). The First Amendment right of access applies to documentseven those otherwise subject to a protective orderthat are introduced at trial. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988) (right of access also applies to documents subject to a protective order that were submitted to the court as attachments to a summary judgment motion). Legal Newsline opposes the sealing of any documents used in the Garlock case absent compliance with the prescribed procedures and satisfaction of the strict scrutiny standard applicable to materials subject to the First Amendment right of access to the courts.


(3) state the reasons for excluding the public on the record, supported by specific findings; and (4) state their reasons for rejecting less restrictive alternatives to closure. In re Knight Publg Co., 743 F.2d 231, 234-35 (4th Cir. 1984); In re Time, Inc., 182 F.3d 270, 271 (4th Cir. 1999). Legal Newsline and other media entities have standing to challenge restrictions on access to judicial proceedings. See, e.g., In re Knight Publg Co., supra, 743 F.2d at 233 (Charlotte Observer filed objection to closure of the courtroom). That standing is usually asserted by intervening. For example, in Stone v. University of Maryland Medical Corp., 855 F.2d 178, 180 (4th Cir. 1988), a newspaper was permitted to intervene for the limited purpose of challenging an order sealing most of the record in the case. The newspaper succeeded in vacating the order due to the district courts failure to give notice of the request to seal, state reasons for the entry of the order, support those reasons with specific findings, and consider alternatives to sealing the record. Id. at 181-82. See also Rushford, supra, 846 F.2d at 252 (granting newspaper leave to intervene for the limited purpose of asserting right of access to summary judgment documents). The following discussion explains that Legal Newsline seeks to intervene in Garlock because the record fails to reveal compliance with the procedural requirements for closing court proceedings, and in any event, the legal standard for closure has not been satisfied. C. The First Amendment Requires That the Proceedings in the Garlock Case Be Kept Open to the Public

The record in the Garlock case appears to indicate that the Court closed portions of the proceedings without undertaking the requisite First Amendment analysis. In particular, there is no indication that the Court identified any compelling governmental interest for restricting the publics access to the proceedings, or made any specific findings in support of its decision. (Kim Decl., 7.) Nor did the Court indicate whether it considered less restrictive alternatives, or why those alternatives were rejected. (Id.) Under analogous circumstances, the Fourth Circuit


vacated a district court ruling because there is no indication on the record why [documents subject to protective order] were sealed or why alternatives to leaving them sealed were rejected. Rosenfeld v. Montgomery County Public Schools, 25 Fed.Appx. 123, 132-33

(4th Cir. 2001) (per curiam). Even if the Court adhered to the foregoing procedural requirements in proceedings that were not made part of the record, the legal standard for closing a hearing to the public is not satisfied here. Although the record does not disclose the putative basis for closing the

proceedings, to the extent it may involve privacy interests associated with protected health information (PHI) of plaintiffs with asbestos claims or confidentiality provisions pertaining to trusts created pursuant to 11 U.S.C. 524(g) regarding asbestos personal injury claims, a less restrictive alternative to closure is readily available. Assuming, arguendo, that any such privacy or confidentiality concerns constitute a compelling governmental interest, those concerns could be addressed, without closing the proceedings, by referring to any individual asbestos plaintiffs by anonymous pseudonyms such as Patient 1, Patient 2, etc. Accordingly, Legal Newsline respectfully requests entry of an order adopting that alternative for addressing privacy or confidentiality concerns pertaining to asbestos plaintiffs or asbestos trusts. There remains that question of how to remedy the closure of portions of the July 26 proceedings. The answer is to provide Legal Newsline and any other requesters with a copy of the transcript of the closed portion of the proceedings. If the transcript contains confidential or protected health information regarding individual asbestos plaintiffs, any references to the names of those individuals can be redacted. This remedy provides an appropriate balance between the interests of asbestos plaintiffs and the constitutionally protected interest of Legal Newsline and the public in access to judicial proceedings.


CONCLUSION For the foregoing reasons, Legal Newsline respectfully requests the Court to (1) refrain from closing any proceedings in the ongoing estimation trial in the Garlock case to Legal Newsline and other members of the news media and the public, (2) order that a copy of the transcript of those portions of the July 26 proceedings from which Legal Newsline and other members of the news media and the public were excluded be made available to Legal Newsline and anyone else who requests a copy, and (3) grant Legal Newsline leave to intervene in these proceedings for the limited purpose of raising the matters addressed in this motion. Respectfully submitted, this the 30th day of July, 2013. /s/ Stephen M. Russell, Jr. Alan W. Duncan N.C. State Bar No. 8736 Stephen M. Russell, Jr. N.C. State Bar No. 35552 Van Laningham Duncan PLLC 300 N. Greene St., Suite 850 Greensboro, NC 27401 Telephone: 336-645-3320 Facsimile: 336-645-3330 Counsel for Legal Newsline Steven F. Pflaum (Of Counsel) Andrew G. May (Of Counsel) NEAL, GERBER & EISENBERG LLP Two North LaSalle Street Suite 1700 Chicago, Illinois 60602-3801 312.269.8000


CERTIFICATE OF SERVICE I, Stephen M. Russell, Jr., hereby certify that I caused a copy of the foregoing MEMORANDUM OF LAW IN SUPPORT OF MOTION BY LEGAL NEWSLINE TO OPEN PROCEEDINGS TO THE PUBLIC to be served on all counsel of record by depositing a copy in the United States Mail, first class postage prepaid, to the parties listed in Attachment A. This the 30th day of July, 2013. /s/ Stephen M. Russell, Jr. Stephen M. Russell, Jr.


Attachment A

Shelley Koon Abel Albert F. Durham Ross Robert Fulton John R. Miller, Jr. Ashley K. Neal William Samuel Smoak, Jr. Rayburn Cooper & Durham 227 W. Trade St., Suite 1200 Charlotte, NC 28202 (704) 334-0891 Fax : (704) 334-0395 Email: Louis Adam Bledsoe, III Garland S. Cassada Jonathan C. Krisko Richard C Worf Robinson, Bradshaw & Hinson, P.A. 101 N. Tryon Street Suite 1900 Charlotte, NC 28246 (704) 377-8314 Fax : (704) 373-3914 Email: Julie Barker Pape Womble,Carlyle,Sandridge & Rice, PLLC Post Office Drawer 84 Winston-Salem, NC 27102 (336) 721-3715 Email:

U.S. Trustee U.S. Bankruptcy Administrator Office 402 W. Trade Street Suite 200 Charlotte, NC 28202-1669 (704)350-7587

Daniel Gray Clodfelter Hillary B. Crabtree Mark A. Nebrig Moore Van Allen PLLC 100 N. Tryon St. 47th Floor 1Charlotte, NC 28202-4003 704 331-1041 Fax : 704 378-2041 Email:


Gary Walker Jackson Sam McGee Jackson & McGee 225 East Worthington Avenue, Suite 200 Charlotte, NC 28203 704-377-6680 Fax : 704-377-6690 Email: Ashley A Edwards Kiah T. Ford, IV William L. Esser, IV Parker Poe Adams Bernstein LLP 401 South Tryon Street Suite 3000 Charlotte, NC 28202 704-372-9000 Fax : 704-334-4706 Email: Kenneth B. Oettinger, Jr. WOMBLE CARLYLE SANDRIDGE & RICE 3300 One Wachovia Center 301 South College Street Charlotte, NC 28202-6025 (704) 331-4900 Email: Michael A. Rosenthal Gibson, Dunn & Crutcher, LLP 200 Park Avenue New York, NY 10166-0193 Aaron G. York Sacks Tierney, P.A. 4250 N. Drinkwater Blvd. Scottsdale, AZ 85251 Barry J. Muller Fox Rothschild LLP 997 Lenox Drive, Building 3 Lawrenceville, NJ 08648-2311

Matthew L Thiel Kazan McClain Lyons Greenwood Harley Jack London Market 55 Harrison Street Suite 400 Oakland, CA 94607 510-465-7728 Fax : 510-835-4913 Email: Peter C. D'Apice Sander L. Esserman Jo E. Hartwick Stutzman Bromberg Esserman Plifka A Professional Corporation 2323 Bryan Street, Suite 2200 Dallas, TX 75201 214-969-4900 Fax : 214-969-4999 Email: Benjamin A. Kahn NEXSEN PRUET, PLLC Post Office Box 3463 Greensboro, NC 27402 (336) 373-1600 Email: Christopher K. Kiplok Hughes Hubbard & Reed, LLP One Battery Park Plaza New York, NY 10004

David Austin Stephen Juris Morvillo, Abramowitz, Grand, Iason, etal 565 Fifth Avenue New York, NY 10017


Sara W. Higgins Higgins & Owens, PLLC 5925 Carnegie Blvd. Suite 530 Charlotte, NC 28209 (704) 366-4607 Fax : (704) 749-9451 Email: G. Martin Hunter 301 S. McDowell St., Suite 1014 Charlotte, NC 28204 (704) 377-8764 Fax : (704) 377-0590 Email: A. Burton Shuford The Bain Group, PLLC 1909 J.N. Pease Place, Suite 101 Charlotte, NC 28262 980-321-7005 Fax : 704-943-1152 Email: John S Buford Jeffrey E. Oleynik Jim W. Phillips, Jr. Brooks Pierce McLendon Humphrey Leonard L.L.P. P.O. Box 26000 Greensboro, NC 27420 336-373-8850 Fax : 336-232-9156 Email: Travis W. Moon Richard S. Wright Andrew T. Houston Moon Wright & Houston, PLLC 227 West Trade Street Suite 1800 Charlotte, NC 28202 704-944-6563 Fax : 704-944-0380 Email:

Jeffrey T. Gaughan Baggett McCall Burgess Watson Gaughan 3006 Country Club Road Lake Charles, LA 70605 337-478-8888 Fax : 337-478-8946 Email:

Casey F Cogburn Bill G. Hall P.C. P.O. Box 19024 Huntsville, AL 35801 256-319-0590 Fax : 256-319-0594 Email: Bryan W. Stone Stone & Witt, P.A. 301 S. McDowell St. Suite 1000 Charlotte, NC 28204 (704) 333-5184 Fax : (704)333-5185 Email:

Deborah L. Fletcher FSB Fisher Broyles LLP 6000 Fairview Rd Suite 1200 Charlotte, NC 28210 (704) 464-6954 Fax : (704) 731-0694 Email:


Elihu Inselbuch, Esq. Leslie M. Kelleher Jeanna Rickards Koski Jeffrey A. Liesemer Kevin C. Maclay Todd E. Phillips Trevor W. Swett James P. Wehner Caplin & Drysdale 600 Lexington Ave 21st Floor New York, NY 10022-6000 Email: