Garlock Plaintiffs Motion To Seal

1112046
UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Charlotte Division
__________________________________________
)
In Re: ) Chapter 11
)
GARLOCK SEALING TECHNOLOGIES ) Case No. 10-31607
LLC, et al.
1
)
)
Debtors. ) J ointly Administered
__________________________________________)

MOTION TO SEAL OF THE OFFICIAL COMMITTEE
OF ASBESTOS PERSONAL INJURY CLAIMANTS

Pursuant to this Courts Order Establishing Protocols for Public Access to Sealed
Materials in Record of Estimation Proceeding, dated August 1, 2014 [Dkt. No. 3925] (the
Protocol Order), the Official Committee of Asbestos Personal Injury Claimants (the
Committee), by and through undersigned counsel, hereby files this motion for an order sealing
or redacting the documents and information to the extent necessary to protect the privacy
interests of asbestos victims. The Committee also sets forth herein its general position on the
appropriate scope of public access to the record of the estimation proceeding and steps that
should be taken to ensure the fair application of the Protocol Order. In support thereof, the
Committee respectfully states as follows:
BACKGROUND
The proceeding for aggregate estimation of pending and future mesothelioma claims
against Garlock has entailed the collection of a vast amount of information and documents from
many and varied sources. Despite the aggregate nature of the estimation, much of this material

1
Debtors consist of Garlock Sealing Technologies LLC, Garrison Litigation Management
Group, Ltd., and The Anchor Packing Company. As used herein, the term Garlock refers to
Garlock Sealing Technologies LLC and Garrison Litigation Management Group, Ltd.

Case 10-31607 Doc 4042 Filed 09/11/14 Entered 09/11/14 14:39:21 Desc Main
Document Page 1 of 18
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contains details of individual asbestos claims and resolutions involving many different
defendants (solvent defendants and bankrupts alike), with productions from or concerning
thousands of persons who have taken no active role in the bankruptcy, including asbestos
claimants past and present, their lawyers, certain settlement trusts, and others. And while the
proper goal of the exercise has always been approximating the overall value of tort and wrongful
death claims for mesothelioma, the scope of the fact-gathering has far exceeded the discovery
that asbestos defendants typically are allowed in tort litigation. Indeed, in its Estimation Order,
this Court itself characterizes the questionnaires it permitted Debtors to serve on current
claimants as in the nature of social science surveys. In re Garlock Sealing Techs., LLC, 504
B.R. 71, 74 (Bankr. W.D.N.C. 2014). Debtors themselves also rendered considerable discovery
concerning past and pending claims.
Much, and perhaps most, of the fruits of discovery and investigation have been submitted
to the Court in connection with the estimation hearing. At the hearing, this Court received a
limited number of evidentiary and demonstrative exhibits. These included, however, the so-
called Garlock Analytical Databaseessentially a compilation assembled by Debtors experts
encompassing Garrisons entire cache of historical claims data and most of the documents and
information about claims and claimants that Debtors have obtained by discovery or informal
means in the estimation proceeding. Debtors offered this massive database as an exhibit at the
hearing in the form of an external computer hard-drive, rather than relying, as the rules of
evidence contemplate, on summaries more accessible to the Court and the other parties. Also,
over a period of weeks following the conclusion of testimony, the parties supplemented the
record by offering a large number of additional exhibits and transcripts, along with many written
objections to one anothers evidentiary submissions. The Court never ruled on the objections.
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In any event, the materials submitted included personally identifying information,
financial information, and medical information of and pertaining to thousands of asbestos
victims. To a large extent, the materials were designated as confidential by the entities that
produced them, under one or more of seven different protective orders that this Court entered in
the fact-gathering stage to prohibit the disclosure and restrict the uses of these materials.
2
Those
protections were undoubtedly appropriate during preparation for the hearing, given the unusual
nature and scope of the inquiries and the limited purposes of the estimation proceeding.
The Court scheduled the estimation hearing to begin in J uly 2013. On the eve of that
hearing, Debtors moved for wholesale removal of confidentiality designations from materials it
had obtained from certain law firms under subpoena. See Motion of Debtors to Remove
Confidentiality Designations from Certain Evidence for Purposes of Trial, filed J uly 3, 2013
[Dkt. No. 2979]. Rather than postponing the hearing or depriving affected claimants and law
firms a meaningful hearing on confidentiality issues, the Court denied that motion and entered an
order providing that any materials that constitute, or incorporate, Confidential Information
admitted into evidence or otherwise retained by the Court shall be maintained under seal in the

2
The protective orders are: Stipulated Protective Order, dated March 22, 2011 [Dkt. No.
1225], as amended by Amendment to Stipulated Protective Order, dated December 20, 2012
[Dkt. No. 2704]; Order Authorizing the Debtors to Issue Questionnaire to Holders of Pending
Mesothelioma Claims and Governing the Confidentiality of Information Provided in Responses,
dated J une 21, 2011 [Dkt. No. 1390]; Order Concerning Ballot Materials, dated J anuary 25, 2012
[Dkt. No. 1829]; Order Authorizing Debtors to Issue Supplemental Exposure Questionnaire and
Governing Confidentiality of Information Provided in Responses, dated J une 29, 2012 [Dkt. No.
2337]; Order Authorizing Debtors to Issue Supplemental Settlement Payment Questionnaire and
Governing the Confidentiality of Information Provided in Responses, dated J une 29, 2012 [Dkt.
No. 2338]; Order Granting in Part and Overruling in Part Objections to Subpoena by Delaware
Claims Processing Facility, LLC and Associated Trusts, Establishing Claimant Objection
Procedures, and Governing the Confidentiality of Information Provided in Response to the
Subpoena, dated August 7, 2012 [Dkt. No. 2430]; Order Governing Use and Confidentiality of
Certain Exhibits to Rule 2019 Statements from Other Bankruptcy Cases, dated March 28, 2013
[Dkt. No. 2807].
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same manner as filings under seal, that the courtroom was to be closed when testimony or
argument might disclose Confidential information, and that such portions of the transcript
[were to be marked] as confidential and access . . . restricted to those entitled to access under the
applicable protective order(s). Order Regarding Use of Confidential Material at the Estimation
Hearing at 2-3, dated J uly 23, 2013 [Dkt. No. 3060]. Consistent with that Order, certain portions
of the hearing were closed and portions of transcripts, certain briefs, and many exhibits
submitted to the Court were sealed (the Sealed Materials). The Court and the parties
contemplated that any issues concerning whether or not evidence should be maintained under
seal would be addressed under procedures to be devised after the closing of the record. See Hrg
Tr. at 266:13-267:12, J uly 23, 2013. The Court denied a subsequent motion made during the
hearing by Legal Newsline, a non-party, which demanded open access to all evidence and
testimony being received in the hearing and appealed the denial of its request.
The Court handed down its Estimation Order in J anuary 2014. Unwilling to abide the
event of the post-hearing process envisaged by the Court and the parties, or to await the outcome
of Legal Newslines appeal, various non-parties, including Legal Newsline, filed new motions to
open up the evidence germane to the Courts acceptance of Debtors theory that Garlocks
settlements and adverse verdicts had been inflated over the course of the 2000s by the conduct of
certain claimants and plaintiffs lawyers in the tort system. The Committee objected on
jurisdictional grounds, pointing out that granting the requested relief would have rendered moot
Legal Newslines pending appeal and thus would have trenched upon the appellate jurisdiction
of the District Court. But the Committee supported the Debtors March 25, 2014 request for the
establishment of a protocol for adjudicating public access issues in an organized way under the
applicable legal standards, so that the Court and the parties would be spared the burdens of an
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open-ended series of access demands. Debtors ultimately withdrew that request without
prejudice, preferring to cooperate with the non-party access proponents who filed new appeals.
The Committee, by contrast, urged the Court and the parties to go forward at once to design such
a protocol so that it could be implemented promptly upon resolution of the appeals.
3

Ultimately, the District Court provided guidance by reversing the J uly 23, 2013 order and
remanding the access issues for further proceedings to determine what materials should remain
sealed. Memorandum of Decision and Order, Legal Newsline v. Garlock Sealing Techs. LLC,
No. 13-00464 (W.D.N.C. J uly 23, 2014) [Dkt. No. 90] (the District Court Order). The
District Court Order requires the Bankruptcy Court to determine in the first instance the source
of the right of access with respect to each document or the testimony of any witness as to which
any party proposes or has proposed be sealed, give the public notice of any such request to seal
and a reasonable opportunity to challenge it, [c]onsider any reasonable alternatives to sealing, all
in accordance with In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984) and then, if such
materials are sealed, provide sufficient information supporting that decision for meaningful
appellate review. District Court Order at 8-9.
In response, this Court entered the Protocol Order, much along the lines supported by the
Committee last spring, and Debtors issued notice of that order to many entities. Under the
Protocol Order, Sealed Materials will be placed on the public record except to the extent that
relief is granted pursuant to motions to seal or redact, made after notice and hearing. The Court
has scheduled a hearing on such motions for October 16, 2014.

3
Response and Limited Objection of the Official Committee of Asbestos Personal Injury
Claimants to Debtors Motion to Establish Protocol for Considering Requests for Public Access
to Estimation Trial Record, Etc. 2, 4-5, dated April 11, 2014 [Dkt. No. 3532]. The
Committees limited objection emphasized the importance of ensuring adequate notice to
potentially affected persons. See id. 5.
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JURISDICTION
J urisdiction over this motion is present pursuant to 28 U.S.C. 1334(b), and the motion
falls within the adjudicatory authority of the Bankruptcy Court pursuant to 28 U.S.C. 157(b).
Venue lies in this district pursuant to 28 U.S.C. 1409(a).
REQUEST FOR RELIEF AND LEGAL BASIS THEREFOR
By this motion, the Committee requests an order sealing or redacting, from all materials
of record in the estimation proceeding, any information the disclosure of which would invade the
legitimate privacy interests of asbestos victims. The relevant materials include, but may not be
limited to, evidentiary exhibits, demonstrative exhibits, summaries, expert reports, transcripts,
briefs, and proposed findings and conclusions. It appears that the Debtors and the Committee
agree on the need to protect certain personally identifying information and medical information
of such individuals. Delineating the full scope of appropriate privacy protections, however, is a
task that must await any motions and responses of affected individuals under the Protocol Order.
The legal bases for such relief are found in section 107 of the Bankruptcy Code,
Bankruptcy Rule 9037(a), and the common law. See 11 U.S.C. 105(a) & 107(c)(1); Fed. R.
Bankr. P. 9037(a); In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283,
293 (4th Cir. 2013) (recognizing that the common law presumption of public access to court
records is not insurmountable, and access may be denied if certain substantive and procedural
preconditions are satisfied); Collins v. Chem. Coatings, Inc., 2008 WL 5105277 (W.D.N.C.
Dec. 1, 2008) (approving the sealing of health information and personally identifying details).
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STATEMENT OF POSITION
Subject to the protection of asbestos victims legitimate privacy interests, and without
prejudice to any other issues asbestos victims and their counsel may raise, the Committee has no
objection to unsealing the record of the estimation proceeding. Furthermore, the Committee will
oppose, and the Court should prevent, any effort by Debtors or others to skew the public record,
or the facts surrounding Garlocks historical verdicts and settlements in asbestos cases, by
cherry-picking for continued sealing those documents of record that Debtors find unhelpful to
their position in the estimation proceeding.
In delineating what information and materials properly call for protection on grounds of
privacy, the Court should consider any particular interests asserted and arguments advanced by
claimants. It merits emphasis that, in contemporary life, privacy is not just a matter of
maintaining the secrecy of personal matters; it also includes ensuring individuals control over
the dissemination of sensitive informationeven information that is already public to some
limited extent.
4
The Court should also take into account what information was actually used in
the estimation proceeding, in light of the aggregate nature of the estimation, as distinguished
from information of attenuated relevance swept up in the parties broad fact-gathering. Medical,
financial, and other personal information of claimants and former claimants against Garlock has

4
As the Supreme Court has observed, An individuals interest in controlling the
dissemination of information regarding personal matters does not dissolve simply because that
information may be available to the public in some form. U.S. Dept of Def. v. Fed. Labor
Relations Auth., 510 U.S. 487, 500 (1994). Rather, the common law and the literal
understandings of privacy encompass the individuals control of information concerning his or
her person. In an organized society, there are few facts that are not at one time or another
divulged to another. U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 763 (1989). Thus, legitimate privacy concerns may weigh against the expansive
disclosure of sensitive matters ordinarily made public only in narrow ways and through more
limited vehicles. See id. at 764. See also Ostergren v. Cuccinelli, 615 F.3d 263, 283-84 (4th Cir.
2010).
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virtually nothing to do with the estimation proceeding; in general, those details were not used,
but were merely accumulated as a byproduct of other inquiries permitted by the Court.
The many protective orders entered by the Court fostered legitimate reliance interests on
the part of individuals who provided, or are the subject of, so much of the information amassed
in this unusual proceeding. Now that the question is one of public access to an evidentiary
record, the factors that led the Court to impose those protections in the first place do not dictate
the outcome, but they remain significant in balancing competing interests.
5

5
When it authorized Debtors to issue their Mesothelioma Claim Questionnaires, and two
supplemental questionnaires, this Court not only imposed detailed and comprehensive
confidentiality protections and use restrictions concerning responses to the same, it also framed
considerations to be weighed, along with any other relevant factors and legitimate interests,
when facing requests to lift those protections. The specific considerations it recognized are
these:

(i) the Debtors have based their request for the Questionnaire on
asserted discovery needs for the purposes of the Estimation
Proceeding; (ii) the Questionnaire constitutes a hybrid form of
discovery not contemplated by the usual rules of discovery under
the Federal Rules of Civil Procedure and therefore not available in
ordinary civil litigation; (iii) the Court has authorized the
Questionnaire on the basis that it may be helpful and efficient for
purposes of the Estimation Proceeding; (iv) Mesothelioma
Claimants have a legitimate reliance interest in the provisions of
this Order, including those provisions pertaining to the
confidentiality and restricted uses of Questionnaire Responses; (v)
the Bankruptcy Court and the Estimation Parties have legitimate
interests in the efficient, fair, and expeditious conduct of the
Estimation Proceeding; (vi) among the intended benefits of
estimating the Debtors asbestos-related liability in the aggregate
for purposes of formulating a plan of reorganization is the
avoidance of disputes that would implicate the due process rights
of absent asbestos personal injury and wrongful death claimants.

Order Authorizing the Debtors to Issue Questionnaire to Holders of Pending Mesothelioma
Claims and Governing the Confidentiality of Information Provided in Response 18 (emphasis
added). The two orders authorizing supplemental questionnaires contained the same provision.
See Order Authorizing Debtors to Issue Supplemental Exposure Questionnaire and Governing
(Footnote continued on next page.)
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ARGUMENT
I. The Court Has Ample Authority to Seal Materials
The Court has the authority and discretion to seal materials submitted to it in the
estimation proceeding, or to order their redaction. While public access is an important principle,
it is not absolute and gives way in certain limited circumstances to other considerations. The
Bankruptcy Court, like other courts, has supervisory power over its own records and files and
can make final decisions regarding access thereto. Nixon v. Warner Commcns, Inc., 435 U.S.
589, 598 (1978). Section 107(a), codifying the common law, embodies a presumption of public
access to papers filed with bankruptcy courts, but also expressly authorizes those courts to
restrict public access so as to safeguard other legally protectable interests, including the
confidentiality of sensitive business information,
6
reputational interests, and freedom from undue
risk of identity theft. Thus, [o]n request of a party in interest, the bankruptcy court shall . . . (1)
protect an entity with respect to a trade secret or confidential research, development, or
commercial information; or (2) protect a person with respect to scandalous or defamatory matter
contained in a paper filed in a case under this title. 11 U.S.C. 107(b). And, [t]he bankruptcy
court, for cause, may protect an individual, with respect to . . . information 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). The kinds
of information to which the Courts protective power extends include [a]ny means of

(Footnote continued from previous page.)
the Confidentiality of Information Provided in Responses 18 [Dkt. No. 2337]; Order
Authorizing Debtors to Issue Supplemental Payment Questionnaire and Governing the
Confidentiality of Information Provided in Responses, entered on J une 29, 2012 [Dkt. No. 2338].
6
See also Fed. R. Bankr. P. 9018 (On motion or on its own initiative, with or without notice,
the court may make any order which justice requires (1) to protect the estate or any entity in
respect of . . . confidential . . . commercial information).
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identification . . . contained in a paper filed, or to be filed, in a case under this title as well as
any [o]ther information contained in such a paper. Id.
Thus, although the public has a presumed right to access court filings and proceedings,
that presumption is not insurmountable, and access may be denied if certain substantive and
procedural preconditions are satisfied. In re U.S., 707 F.3d at 293; accord Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (The mere existence of a . . . right of
access to a particular kind of document does not entitle[] the press and the public to access in
every case.); see also In re Kaiser Aluminum Corp., 327 B.R. 554, 560 (D. Del. 2005)
(Although [11 U.S.C. 107(a)] evidences a strong desire by Congress to preserve the publics
right to access judicial records, that right is not absolute.). Precisely what those preconditions
are may depend on the source of a potential right of access: the First Amendment, the common
law, or 11 U.S.C. 107(a).
Here, no First Amendment right of access applies. [T]he First Amendment secures a
right of access only to particular judicial records and documents. Doe v. Public Citizen, 749
F.3d 246, 266 (4th Cir. 2014) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180
(4th Cir. 1988)). Neither the Supreme Court nor the Fourth Circuit has extended the First
Amendment right of access to non-dispositive civil proceedings such as the estimation hearing.
See Va. Dept of State Police v. Washington Post, 386 F.3d 567, 580 (4th Cir. 2004) (The Fourth
Circuit has never held that the public has a First Amendment right of access to a pretrial hearing
on a non-dispositive civil motion or to the transcript of such a hearing.).
This Court itself has stated that the estimation proceeding is not a dispositive
proceeding. While it is an important one, it is merely a preliminary step in the process of
formulating a reorganization plan. Order Denying Motion of Legal Newsline to Open
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Proceedings to the Public at 3, dated J uly 31, 2013 [Dkt. No. 3069]. The estimation proceeding
cannot be dispositive because it does not fully decide anyones rights. See In re Dow Corning
Corp., 211 B.R. 545, 564 (Bankr. E.D. Mich. 1997) ([A]n estimate of the value of all of the tort
claims . . . does not fully decide the rights of any party.). Indeed, the Bankruptcy Court does
not have jurisdiction to resolve the personal injury and wrongful death claims that are the subject
of its aggregate estimate. 28 U.S.C. 157(b)(2)(B); In re G-I Holdings, Inc., 323 B.R. 583, 611
(Bankr. D.N.J . 2005) (noting that an estimation proceeding with the intended goal of liquidating
contingent or unliquidated personal injury tort or wrongful death claims could not result in a
final order from the bankruptcy court); In re Johns-Manville Corp., 45 B.R. 823, 826 (S.D.N.Y.
1984) ([S]ection 157(b)(2)(B) ensures that only district judges enter final orders and judgments
regarding the estimation or liquidation of personal injury or wrongful death claims for purposes
of distribution.). As such, no First Amendment right of access to the record of the estimation
proceeding exists.
7

Instead, any right of public access to the Sealed Materials must be found in the common
law or section 107(a). The common law presumption of access can be rebutted if the publics
right of access is outweighed by competing interests. In re U.S., 707 F.3d at 290 (quoting In re
Knight Publg Co., 743 F.2d 231, 235 (4th Cir. 1984)). Section 107, moreover, is merely a
codification of the common law general right to inspect judicial records and documents. In re
Nunn, 49 B.R. 963, 964 (Bankr. E.D. Va. 1985) (emphasis added). As such, the statute not only

7
Compare Kinetic Concepts, Inc. v. Convatec Inc., 2010 WL 1418312, at *9-10 (M.D.N.C.
Apr. 2, 2010) (finding no right of access where substantive rights were not affected), with
Rushford, 846 F.2d at 252-53 (finding a First Amendment right of access to summary judgment
because summary judgment adjudicates substantive rights and serves as a substitute for a trial).
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protects certain categories of information described therein, but also admits of similar exceptions
to public access when the information in question would be so excepted under the common law.
II. To Protect Reasonable Privacy Interests, Personally Identifying Information and
Medical Information Should Be Redacted Wherever They Appear in the Record
To safeguard individuals privacy, federal law contains strong protections applying to
personally identifying information and medical information, including protections applicable to
court records. Section 107(c) of the Bankruptcy Code specifically excepts from the public right
of access any means of identification (as defined in [18 U.S.C. 1028(d)]), if disclosure
would create undue risk of identity theft or other unlawful injury to the individual or the
individuals property. Such means of identification include a persons name, social security
number, date of birth, official State or government issued drivers license or identification
number, alien registration number, government passport number, employer or taxpayer
identification number . . .; unique electronic identification number, address, or routing code . . .
. 18 U.S.C. 1028(d). Indeed, certain types of personally identifying information must be
redacted absent an affirmative order to the contrary. See Fed. R. Bankr. P. 9037(a); see also
Federal Rule of Civil Procedure 5.2; Administrative Procedures Governing Filing and Service by
Electronic Means (W.D.N.C. J an. 1, 2012).
Content-based exceptions to the right of access have been developed to protect competing
interests. [T]hese interests include certain privacy rights of participants or third parties.
Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983) (citing Nixon,
435 U.S. at 598). Courts have routinely found privacy interests in personal health information
and have accordingly sealed or redacted such information. See, e.g., Fulmore v. United Parcel
Serv., Inc., 2012 WL 6016731, at *1 (E.D.N.C. Dec. 3, 2012) (finding the public right of access
overcome where plaintiff has demonstrated that the documents in question contain personal and
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confidential information, including information relating to his medical records and medical
condition, information which is of utmost importance to him but not generally available to the
public or bearing importance to any public matters); Wolfe v. Green, 2010 WL 5175165, at *3
(S.D. W.Va. Dec. 15, 2010) (holding even the First Amendment right of access overridden with
respect to proposed redactions that included information about plaintiffs medical history and
finances); Collins, 2008 WL 5105277, at *2 (finding sealing necessary to protect sensitive
personal health information and [personal] identifiers from becoming public records).
The District Courts recent decision in Gentry v. Maggie Valley Resort Management,
LLC, 2014 WL 1384451 (W.D.N.C. Apr. 9, 2014), provides instruction. In that employment
discrimination case, the plaintiff moved with the defendants consent to seal certain exhibits she
wished to attach to her opposition to a motion for summary judgment. The proposed exhibits
had been designated confidential by one party or the other under a protective order entered in
discovery. The materials in question included:
(1) Plaintiffs medical records, documents relating to her
physical health and treatment, and her workers compensation
injury and claim; (2) documents relating to Plaintiffs
termination . . . and the termination of other employees . . . ;
(3) documents relating to the medical condition and/or
workers compensation injuries sustained by non-party
employees . . . ; (4) documents relating to personnel records of
the Plaintiff, Defendant J ay Manner, and other individuals . . .
; (5) documents relating to [actions of Defendants
management]; (6) documents submitted to [federal and state
agencies] by Defendants in response to Plaintiffs
administrative charges of discrimination; and (7) documents
relating to the Defendants business practices, financial or
accounting date, and other sensitive business data.

Id. at *1.

Treating the common law as the relevant source of a presumptive right of public access,
the court noted that the presumption was not irrebutable. The Fourth Circuit, it observed, has
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recognized that a district court has supervisory power over its own records and may, in its
discretion, seal documents if the publics right of access is outweighed by competing interests.
Id. (quoting In re Knight Publg Co., 743 F.2d at 235). As to plaintiffs medical records, the
medical and personnel records of non-parties, and certain sensitive business data of the
Defendants, the court went on to rule that the publics right of access . . . is substantially
outweighed by the competing interest in protecting the details of such information. Gentry,
2014 WL 1384451, at *1. Accordingly, the decision permitted the filing under seal of exhibits
containing information of those kinds. On the other hand, the court found that other categories
of documents, such as those related to plaintiffs termination and the defendants conduct, should
not be sealed because those documents go to the very heart of the Plaintiffs claims and the
plaintiff had not shown that any interests in protecting those matters could overcome the
common law right of access. Id. at *2. Even as to the documents that would not be sealed,
however, the decision recognized that it would be appropriate to redact personal identifiers like
Social Security numbers so as to adequately protect the parties privacy interests. Id.
In the Notice approved by this Court for the Protocol Order, Debtors undertook to move
to redact the following information from all Sealed Materials:
a. An individuals social-security number or taxpayer-
identification number (except for the last four digits);
b. An individuals birth date (except for the year);
c. The name of an individual known to be and identified as a
minor (except for the minors initials);
d. A financial-account number (except for the last four digits);
and
e. Medical information except for claimed disease (i.e.
mesothelioma, asbestosis, etc.).
Protocol Order at Ex. A p. 3. The Committee supports the sealing or redaction of such
personally identifying details and medical documents throughout the record. None of that is
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material to the estimation proceeding, nor does the Courts Estimation Order depend on any such
information. Release of that information would serve neither of the two dimensions that shape
the public right of access: it would not advance the publics ability to oversee and monitor the
workings of the J udicial Branch, nor would it promote[] the institutional integrity of the
J udicial Branch, Public Citizen, 749 F.3d at 263 (internal citations omitted). No theory of
public access requires that such personally identifying information or medical information be
made public in the context of the aggregate estimation proceeding. Wherever found in the record
of the estimation proceeding, therefore, information of the above-listed kinds must be redacted
before materials containing such information are released to the public.
As noted, however, those items are not necessarily the only information implicating the
legitimate privacy interests of asbestos claimants and former claimants. Therefore, while the
Committee requests protection for the particular categories of information already mentioned, its
position and this motion are without prejudice to any individuals request for broader protections
grounded on legitimate privacy interests.
III. Sealing and Redaction Must Be Applied Consistently Throughout the Record
The Notice of the Protocol Order issued to potentially affected entities and individuals
did not describe the record materials document-by-document or indeed in any detail. It would
have been impracticable to do so, given the large extent of the record, so the Notice merely
called attention to broad categories of documents. Furthermore, much of the record described in
the Notice, including transcripts, exhibits, expert reports, summaries, and databases, is
provisionally sealed even as to those persons who are now required to file motions to seal if the
information is to remain protected. Although referenced generally in the Notice, those record
materials are presently unavailable to anyone other than the estate parties and Coltec Industries
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Inc., that is, the actual parties to the estimation proceeding. Remote claimants are largely in the
dark, except as to materials they produced for the estimation.
This unusual situation must be taken into account so that the Protocol Order can be
implemented in a fair and reasonable way. Information touching privacy rights is not limited to
documents or testimony provided directly by the persons who have the right to file such motions.
Information contained in primary materials provided by individual claimants or their counsel
during the estimation proceeding, such as questionnaire responses, documents, deposition
testimony, settlement information, and trust claim forms, has been incorporated into derivative
materials generated by the estimation parties. Examples of such derivative materials are expert
reports, charts and summaries, demonstrative exhibits, briefs, appendices, databases, and
transcripts of testimony and argument. These derivative materials are themselves sealed, so their
contents cannot be known, personally or by counsel, to individual claimants who may be
subjects thereof.
These complications will require some accommodations when evaluating and
implementing motions to seal. For example, while non-parties can formulate motions to seal
based on their knowledge of what documents they produced, it is impossible for them to know
how, or to what extent, information they supplied is replicated in the record in other forms.
Inevitably, then, motions to seal or redact will need to frame requests for relief in terms of
categories of information and documents. Furthermore, where such requests for relief are well
taken, it will not suffice to redact or seal the original source documents; instead, all copies and
derivative materials setting forth protected information should be sealed or redacted as well. By
way of example, if the Court determines that certain details in questionnaire responses should be
redacted pursuant to a claimants motion to seal, those details should also be redacted wherever
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else they happen to appear in the record. Common sense and fairness mandate this approach. It
would mean little to redact information from a source document if that information would be
made public in the form of a derivative summary, testimony, or expert work product if the
document disclosed was not accessible to the movant in the process carried out under the
Protocol Order.
That process, then, should involve an important step after the Court grants any motions to
seal and before any information and materials potentially falling within the protected categories
are released to the public. Specifically, the record now sealed provisionally will need to be
reviewed by the Debtors or other entities charged with ensuring the consistent and complete
application of any protections granted.

- 18 -

CONCLUSION
For all the reasons set forth above, the Court should grant the Committees Motion to
Seal and such other relief as may be just and proper.
Dated: September 11, 2014 CAPLIN & DRYSDALE, CHARTERED

By:Trevor W. Swett III
Trevor W. Swett III
(tswett@capdale.com)
J ames P. Wehner
(jwehner@capdale.com)
One Thomas Circle, N.W., Suite 1100
Washington, DC 20005
Telephone: (202) 862-5000

Elihu Inselbuch
(einselbuch@capdale.com)
600 Lexington Avenue, 21
st
Floor
New York, NY 10022
Telephone: (212) 379-6000

Co-Counsel for the Official Committee of
Asbestos Personal Injury Claimants

MOON WRIGHT & HOUSTON, PLLC

Travis W. Moon
(tmoon@mwhattorneys.com)
227 West Trade Street, Suite 1800
Charlotte, NC 28202
Telephone: (704) 944-6560

Co-Counsel for the Official Committee of
Asbestos Personal Injury Claimants

Garlock Plaintiffs Motion To Seal

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Garlock Plaintiffs Motion To Seal

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1112046

UNITED STATES BANKRUPTCY COURT

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