From Trump Media & Tech. Group Corp. v. WP Co. LLC , decided today by Judge Tom Barber (M.D. Fla.); seems correct to me (and note that the court leaves room for some "targeted redaction of very limited and specifically identified information"):
Plaintiff Trump Media Technology Group, Inc. ("TMTG") brought this lawsuit for defamation against WP Company LLC (the "Post") arising from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.
According to the article, in late 2021, Patrick Orlando, CEO of DWAC, arranged for $8 million in loans to TMTG from an entity known as "ES Family Trust" as part of a deal in which ES Family Trust would acquire an equity interest in the public entity to be formed from the merger. The article reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry.
The article also reported that TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director. The article stated that neither the loan-for-stock deal nor the payment of the finder's fee had been disclosed to shareholders of DWAC or the SEC, and presented the opinion of New York University law professor Michael Ohlrogge that these matters could affect the value of the shares and should have been disclosed.
TMTG filed suit against the Post for defamation and conspiracy …. [T]he case has been narrowed to address only two of the statements in the article: (1) "The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust;" and (2) "The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO." …
Because there is a presumption in favor of public access to court proceedings, Local Rule 1.11(a) expressly limits a party's ability to file information under seal to "compelling" circumstances:
Sealing a docketed item … used in the adjudication or other resolution of a claim or defense requires a reason sufficiently compelling to overcome the presumption of public access. Sealing is not authorized by a confidentiality agreement, a protective order, a designation of confidentiality, or a stipulation.
As stated in the Local Rule, the fact that documents have been designated as confidential under a confidentiality order or protective order is insufficient to support filing documents under seal when they are submitted in connection with substantive motions (including summary judgment and Daubert motions).
Instead, the presumption of public access may only be overcome by a showing of good cause. In determining whether good cause exists, courts balance, among other factors, the potential for impairing court functions or harming legitimate privacy interests, the degree of and likelihood of injury if the information is made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.
"The burden to demonstrate that sealing is warranted rests with the proponent, requiring that it 'describe the alleged harm it will suffer from any disclosure with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'" …
TMTG seeks to file under seal the entirety of its motion for partial summary judgment, its reply memorandum in support of summary judgment, its response to the Post's motion for summary judgment, and various exhibits to these filings. In support, TMTG offers only a conclusory assertion that the material it seeks to seal has been designated as confidential under a confidentiality order:
Sealing is necessary because public disclosure of the unredacted material would reveal allegedly confidential and privileged information, including deposition testimony, internal business information, and non-party communications, the parties have designated as such under the Stipulated Protective Order. Public filing would undermine the confidentiality interests preserved by the Stipulated Protective Order and could disclose information the parties and affected non-parties have treated as confidential during discovery.
The Post, for its part, seeks to file its response to TMTG's motion for partial summary judgment under seal. The Post, however, states that it does so only because the response includes or references information that TMTG or non-party Patrick Orlando designated as confidential under the confidentiality order….
In short…
Read the full article at Reason →
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