The Unintended Consequences of Filing a Lawsuit

Defamation law affords remedies to plaintiffs whose reputations have been tarnished by the false and damaging statements of others. But defamation plaintiffs face a particular dilemma: because legal proceedings are generally open to the public, filing a lawsuit over the libel or slander usually results in further publicity of the very statements the plaintiff wants to suppress. This has become known as the Streisand Effect, and is the same dilemma faced by plaintiffs seeking to enforce contracts containing non-disparagement provisions.

A vivid example is provided by the case of Dr. Steven A. Guttenberg v. Dr. Robert W. Emery, currently pending in District of Columbia federal court. Doctors Guttenberg and Emery were joint shareholders of an oral surgery practice for roughly 20 years, but their relationship soured and litigation ensured in 2008. The doctors settled that case with a settlement agreement containing a non-disparagement provision that restricted each of them from making statements concerning the other that might be harmful to reputation.

In November 2013, Dr. Guttenberg filed another lawsuit against Dr. Emery, this time alleging that Dr. Emery violated the non-disparagement provision. Dr. Guttenberg’s amended complaint claims that Dr. Emery’s wife, while in the waiting room of a veterinary office, told a dental hygienest “that Dr. Guttenberg was a sexual deviant, received oral sex under the table at his office and cheated on his wife. She also stated that he had other affairs, including sexual intercourse at the office.” Dr. Guttenberg moved to seal the case, arguing that the public had no legitimate interest in hearing the salacious details of “a private dispute between private individuals.” The court disagreed and unsealed the complaint, ensuring that the allegedly disparaging statements would be shared with an audience far greater than would have been the case had the lawsuit never been filed.

Public access to judicial proceedings is central to our system of justice and helps ensure the integrity of judicial proceedings. In determining whether to seal records, courts start with a strong presumption in favor of public access and then consider six factors: (1) the need for public access to the documents; (2) the extent of previous streisand.jpgpublic access to the documents; (3) the fact that someone has objected to disclosure and the identity of that person; (4) the strength of any property or privacy interest asserted; (5) the possibility of prejudice to those opposing disclosure and (6) the purposes for which the documents were introduced during the judicial proceeding.

Although Dr. Guttenberg was certainly correct that the case is a “private dispute,” the court noted that the vast majority of civil cases are private disputes but that does not diminish the importance of the public’s right to access. The public’s access to court proceedings serves as an important check on the judiciary, regardless of whether the case concerns matters of public concern. “Because judicial proceedings are by default public,” the court explained, “litigants can be confident that they will be treated fairly and justly.”

The more relevant a pleading is to the central claims of the litigation, the less likely a court will agree to keep it a secret. In this case, the statements at issue were central to the case: Dr. Guttenberg could not prove that Dr. Emery and his wife violated the non-disparagement provision without identifying the statements claimed to be disparaging. The specifics of the statements would play a central role during every stage of the litigation, from motions to dismiss to summary judgment to trial.

Upon consideration of the six factors, the court found that the only one weighing in favor of sealing the case was the fact that Dr. Guttenberg himself objected to making the information public. All other factors favored unsealing the allegations, so the court denied the motion to seal.

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