U.S. Judge Harvey Bartle III of the Eastern District of Pennsylvania on March 23 agreed with the trust that the question is controlled by Pansy v. Borough of Stroudsburg (23 F.3d 772 [3d Cir. 1994]) but said the trust had not met the "balancing test" the Third Circuit set forth in Pansy. In addition, the judge said, Pansy discussed the right of the public to information, whereas the trust's motion implicates the rights of parties.

Very Much Parties

"Here, we are dealing with the effort of the Trust to prevent class members, who are very much parties to the Settlement Agreement, from access to a motion seeking to persuade the court to take certain action which could ultimately affect their right to obtain benefits from the Trust," the judge said. "Thus, the outcome here will affect not merely the public's right of access to judicial records but also the right of those persons who have a direct interest in the litigation and its settlement benefits.

"We are unpersuaded that Rule 23(g) allows the Trust's proposed sealed filing in this instance," the judge said. "Rule 23(g) suggests that the court, when selecting class counsel, may review confidentially certain attorney preparation which would be inappropriate to disclose to opposing counsel. Selection of class counsel does not in any direct sense affect the merits and is more in the nature of administrative action. See In re School Asbestos Litig., 977 F.2d 764, 789 (3d Cir. 1992). In the motion before us, the Trust is not seeking to submit confidential information for the court to consider in appointing class counsel. Instead, the Trust is asking the court to deny class members access and, consequently, an opportunity to respond in a timely manner to a discovery motion that could potentially affect their eligibility for benefits under the Settlement.

"In the instant case, the Trust has failed to establish 'good cause' for its sealed filing and has not met its heavy burden of demonstrating with specificity the harm it will suffer if class members are permitted to access the information contained therein. See Pansy, 23 F.3d at 786. The class members, as noted above, are parties to the Settlement Agreement and have a compelling interest in the Trust's efforts to obtain discovery from various companies who performed echocardiograms, the readings of which could ultimately affect whether or not they are entitled to monetary benefits from the Trust. Further, under the present circumstances, it would be inappropriate for the court to review an ex parte memorandum which seeks to advocate a position before the court."

The trust is represented by Richard L. Scheff of Montgomery, McCracken, Walker & Rhoads in Philadelphia and Andrew A. Chirls of Wolf, Block, Schorr & Solis-Cohen in Philadelphia. Class counsel is represented by Arnold Levin, Fishbein and Laurence S. Berman of Levin, Fishbein, Sedran & Berman in Philadelphia. Certain class members are represented by Russell W. Budd, Presby, Steve B. Jensen and S. Ann Saucer of Baron & Budd in Dallas.