UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Charlotte Division

In Re: GARLOCK SEALING TECHNOLOGIES LLC, et al. Debtors.1

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Chapter 11 Case No. 10-31607 Jointly Administered

OPPOSITION OF THE OFFICIAL COMMITTEE OF ASBESTOS PERSONAL INJURY CLAIMANTS TO MOTION BY LEGAL NEWSLINE TO OPEN PROCEEDINGS TO THE PUBLIC The Official Committee of Asbestos Personal Injury Claimants (the Committee), hereby responds to the Motion by Legal Newsline to Open Proceedings to the Public (the Motion) filed by Legal Newsline on July 30, 2013 [Dkt. No. 3065].

I.

The Motion is Procedurally Flawed. 1. Legal NewsLines Motion ignores that Garlock earlier this month filed a motion

to the same purpose and effect to open the courtroom and strip confidentiality from documents provided pursuant to protective orders and did so on the public docket. Motion of Debtors to Remove Confidentiality Designations from Certain Evidence for Purposes of Trial, dated July 3, 2013 [Dkt. No. 2979] (Garlocks Confidentiality Motion). Legal Newsline chose not to intervene or be heard as to that motion. Numerous interested parties showed up at the publicly-announced hearing to decide the motion, and were heard. Legal Newsline did not.

The Debtors in these jointly administered cases are Garlock Sealing Technologies LLC (Garlock) Garrison Litigation Management Group, Ltd., and The Anchor Packing Company.

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2.

After reviewing all briefs that were submitted and hearing argument from all

parties that wished to be heard, including from counsel for plaintiffs firms that had provided confidential information in discovery pursuant to protective orders (Confidential

Information), this Court issued its ruling and entered an Order regarding use of confidential information at the Estimation Hearing that provides for closure of the Courtroom as needed. Order Regarding Use of Confidential Material at the Estimation Hearing, dated July 23, 2013 [Dkt. No. 3060] (the Confidentiality Order). That Order recognizes the seven protective orders regarding confidentiality that have been entered in this case, and appropriately balances the presumption of public access against the justified expectations of the party and non-party discovery respondents who had produced Confidential Information in reliance on those protective orders and confidential treatment. The Confidentiality Order provides that The Court may alter the procedures set forth in this order in the interests of efficiency or justice, but will not remove or reduce any confidentiality protection from any Confidential Information except after notice and hearing, and in accordance with the relevant confidentiality or protective order. Confidentiality Order 6. 3. No party, including Legal Newsline, has sought reconsideration or appellate For Legal Newsline to now file its Motion while

review of that Confidentiality Order.

concurrently ignoring the existence of the Confidentiality Order is disingenuous. The procedure that this Court followed meets all Constitutional and common-law requirements, and having failed to participate in this Courts resolution of these matters, Legal Newsline should not now be heard to argue to the contrary. Adequate notice was provided, all parties who expressed an interest in being heard were heard, and this Court both stated its reasons for closing the courtroom during the introduction of Confidential Information and adopted less restrictive

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alternatives to closure when appropriate. Indeed, since the Confidentiality Order, the Estimation Proceedings have largely been open to the public. 4. Legal Newslines arguments are also made in the absence of the affected entities

and individuals, who have not received adequate notice of the Motion (indeed, the Motion notes that for many of those being served, Legal Newsline chose to serve them via First-Class mail today, which means that they will not be served or have adequate notice of the Motion by tomorrow, July 31). 5. Finally, Legal Newslines arguments going forward are purely hypothetical, as it

is not clear to what extent if any the parties intend to proffer confidential information requiring protection going forward: so far, the Court has been open for nearly the entirety of the Estimation Hearing, and Legal Newsline provides no basis to suggest that this is likely to be significantly different going forward. 6. Legal Newsline provides no appropriate basis for relief.

II.

Legal Newsline Does Not Have A First Amendment Right to Attend the Estimation Hearing. 7. The Supreme Court has held that there is a First Amendment right of access to

criminal trials and certain criminal proceedings. See, e.g., Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 10-14 (1986). The Fourth Circuit has extended that right to civil trials and some civil filings. ACLU v. Holder, 673 F.3d 245, 252 (2011). The Fourth Circuit, however, has not extended the First Amendment right of access to non-dispositive civil proceedings. [W]e have never held that the public has a First Amendment right of access to a pretrial hearing on a nondispositive civil motion or to the transcript of such a hearing. Va. Dept of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004). The Estimation Proceeding is not a dispositive civil -3-

proceeding: even after it results in an opinion from this court estimating Garlocks liability for mesothelioma claims, that opinion will not itself resolve any claims, will not direct any payment to any entity, and additional litigation will be necessary for it to have any effect, including the ultimate confirmation of a plan of reorganization. 8. As the Estimation Hearing is not a dispositive civil trial, there is no First

Amendment right of access to it in the first place. Nor does Legal Newsline cite any case to the contrary. 9. Even if there were a First Amendment right of access, under the very test

enunciated by Legal Newsline, this Courts Confidentiality Order is fully appropriate. The Courts Confidentiality Order recognizes that, based on the confidentiality interests and nature of the Confidential Information provided, as laid out in the underlying briefing ignored by Legal Newsline, protection is warranted, which supports the conclusion that limits on access are necessary to serve a compelling government interest. Memorandum of Law in Support of Motion by Legal Newsline to Open Proceedings to the Public (Mem.) at 4, dated July 30, 2013 [Dkt. No. 3066]. As set forth in more detail below, there is ample reason to believe that closing the courtroom is warranted under certain circumstances, as opposed to the blanket preemptive ruling sought by Legal Newsline that no Confidential Information can or will warrant protection other than by having the names of individual asbestos victims redacted. Mem. at 6. III. The Common-Law Presumption of Public Access to Court Proceedings Has Been Appropriately Addressed by the Confidentiality Order 10. Under the common law, the public has a presumptive right of access to attend all

judicial proceedings. See, e.g., Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir. 1988). This presumption of access, however, can be rebutted if countervailing interests heavily outweigh the public interests in access. The trial court may weigh the interests advanced by the -4-

parties in light of the public interests and the duty of the courts. The party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption. Id. at 253 (citations and internal quotations omitted). The trial courts denial of access is reviewed only for abuse of discretion. Id. 11. Here, the respondents to Garlocks Confidentiality Motion showed such

countervailing interests in their briefing and argument, as this Court is well aware. For example, as the Committee pointed out in its publicly-filed Opposition to Garlocks Confidentiality Motion, the Confidential Information includes the circumstances of certain asbestos plaintiffs cases, plaintiffs particular exposures and how the law firms identified and analyzed products to which their clients were exposed, the process by which the law firms were retained by their clients, their referral sources, the extent of their pre-filing investigations, how the law firms responded to discovery, the questions they asked their clients in so responding, and how the law firms approached settlement negotiations.2 Such information fairly fits within the interests recognized by courts as overcoming the presumption of public access. Such interests include trade secrets, confidential business information, and information protected by attorney-client privilege. Longman v. Food Lion, Inc., 186 F.R.D. 331, 335 (M.D.N.C. 1999). They also include certain privacy rights of participants or third parties. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983). 12. Moreover, the Confidential Information was provided pursuant to an

understanding of confidentiality embodied by agreed-upon protective orders that were not challenged by Legal Newsline or anyone else when entered. This Court recognized the

Opposition of the Official Committee of Asbestos Personal Injury Claimants to Motion of Debtors to Remove Confidentiality at 13, dated July 17, 2013 [Dkt. No. 3046]. -5-

importance of such an understanding when it rejected Garlocks Confidentiality Motion. The fact that the discovery respondents relied upon such confidential treatment when providing Confidential Information is another reason the Motion should be denied. See Leap Systems, Inc. v. Moneytrax, Inc., 638 F.3d 216, 222-23 (3d Cir. 2011) (affirming District Courts denial of motion to unseal, because we find [the partys] reliance on the District Courts assurances of confidentiality entirely reasonable and sufficient to outweigh the publics common law right of access). 13. Indeed, with respect to documents, Section 107 of the Bankruptcy Code provides

a statutory presumption of access to documents filed on the public docket, but even under Section 107 exceptions to access include (1) trade secret or confidential research, development, or commercial information [11 U.S.C. 107(b)(1)]; (2) scandalous or defamatory matter [11 U.S.C. 107(b)(2)]; and (3) any means of identification, to the extent the court finds that disclosure of such information would create undue risk of identity theft or other unlawful injury to the individual or the individuals property [11 U.S.C. 107(c)(1)]. 14. Legal Newsline cannot argue that all information that may come up at the

Estimation Hearing is necessarily appropriate for public access. Accordingly, its blanket request for access to the entirety of the proceeding, and its assertion that the entirety of the documents should likewise be publicly available, is void of any legal or factual basis, and inappropriately ignores the various briefs and argument with respect to Garlocks Confidentiality Motion that led to this Courts Confidentiality Order.

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CONCLUSION Legal Newslines Motion should be denied. Dated: July 30, 2013 Respectfully submitted, CAPLIN & DRYSDALE, CHARTERED By: /s/ Trevor W. Swett III Trevor W. Swett III (tswett@capdale.com) Kevin C. Maclay (kmaclay@capdale.com) One Thomas Circle, N.W. Washington, D.C. 20005 Telephone: (202) 862-5000 Elihu Inselbuch (einselbuch@capdale.com) CAPLIN & DRYSDALE, CHARTERED 600 Lexington Avenue New York, NY 10022 Telephone: (212) 319-6001

MOON WRIGHT & HOUSTON, PLLC Travis W. Moon (tmoon@mwhattorneys.com) 227 West Trade Street, Suite 1800 Charlotte, NC 28202 Telephone: (704) 944-6560 Attorneys for the Official Committee of Asbestos Personal Injury Claimants

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