IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIAFAMILY COURT

DOMESTIC RELATIONS BRANCH__________________________________________

)CAMERON KENNEDY, )

)Plaintiff, ) 2006 DRB 2583

) Judge Alfred S. Irving, Jr.v. )

)PETER ORSZAG, )

)Defendant. )

__________________________________________)

ORDER1

On January 17, 2014, Intervenor Bianna Orszag filed a Motion to Seal the Trial

Transcripts. On January 17, 2014, Defendant Peter Orszag filed a motion in limine seeking,

among other things, to have sealed certain portions of the upcoming trial transcript that

specifically pertain to information identified as confidential in a protective order that the

Hon. Danya Dayson issued on May 8, 2013, and to have the courtroom vacated of nonparties

during the trial when such facts are entered into the trial record. The Court appreciates that, on

August 2, 2013, after consideration, Judge Dayson determined to seal, at trial, certain exhibits

containing certain personal financial information of Mr. Orszag and Ms. Orszag.

Judge Dayson will not be presiding over the trial, however, and it is to the undersigned to

preside over a trial that is fair, open, and efficient.

On January 23, 2014, the eve of the second scheduled start date for the trial, the

Reporters Committee for Freedom of the Press, in conjunction with several media outlets

(hereinafter, collectively “Media Intervenors”), filed a motion to intervene and a 1 Given the delay created by the recent motions and the fact that the parties have sufficiently argued their positions, it is in the interests of the parties and the Court to dispose of the motions on the papers, without additional oral argument.

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contemporaneous motion to unseal records, which motion, they suggested, should be received

and considered as an opposition to Mr. Orszag’s request to extend the protections of the

protective order through trial. Mr. Orszag and Ms. Orszag filed oppositions to the Media

Intervenors’ motion on February 14, 2014. Although Ms. Kennedy has argued often to

Judge Dayson for unsealing the records so that the public may have access to certain sealed

documents, Ms. Kennedy elected not to file a responsive pleading. No matter, the Court has

reviewed all of the pleadings before it, in addition to all of the pleadings filed in this case and the

oral presentations before Judge Dayson, and is constrained to conduct a trial that is completely

open to the public. As explained below, the Court will endeavor to ensure that Ms. Orszag’s

personal information is protected through redaction, but sealing all of the designated documents

and closing the trial is both inappropriate and untenable. In short, the law of the case doctrine is

not implicated by Judge Dayson’s interlocutory procedural rulings. The rulings are not

sufficiently final to invoke application of the doctrine, though the Court respects Judge Dayson’s

rulings and does not depart from them lightly.

Factual and Procedural Background

On August 7, 2006, Ms. Kennedy filed her Complaint for a Judgment of Absolute

Divorce, having been mutually and voluntarily separated from Mr. Orszag for six months. At

that time, Ms. Kennedy indicated that, on April 3, 2006, the parties had entered into a Voluntary

Separation, Custody and Property Settlement Agreement (“the Agreement”) that “resolved all

issues incident to the parties’ marriage.” Mr. Orszag filed a consent answer to Ms. Kennedy’s

Complaint the same day, and the parties signed a Joint Waiver of Right to Appeal. On

November 17, 2006, the Hon. Jerry S. Byrd issued Findings of Fact, Conclusions of Law, and

Judgment of Absolute Divorce. Judge Byrd neither incorporated nor merged the Agreement into

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the Judgment and, as such, it is not part of the public case record.

Approximately six years later, on October 2, 2012, Ms. Kennedy filed the subject

Petition to Establish Child Support Order Modifying an Agreement Relating to Child Support.

Ms. Kennedy asserts that there have been multiple substantial and material changes in

circumstances meriting a change in the Agreement. Specifically, Ms. Kennedy contends that Mr.

Orszag has enjoyed a significant increase in his compensation, the children’s expenses have

increased significantly, and the trust established to fund the children’s education and other

expenses is nearing depletion. She contends further that the significant disparity between her

lifestyle and that of Mr. Orszag’s warrants an increase in Mr. Orszag’s child support obligation.

Ms. Kennedy argues that the current child support arrangement, under which neither party makes

direct child support payments to the other, is inadequate and has been subject to Mr. Orszag’s

whims.

On October 19, 2012, Mr. Orszag filed an Emergency Motion for Orders Sealing

Documents, Orders, and Transcripts, explaining that “public exposure of the issues in this case

will have detrimental, damaging, and possibly negative long-lasting effects on the Defendant, his

current wife, and the Children.” As to the Parties’ Agreement, Mr. Orszag noted that the parties

elected not to merge or incorporate the Agreement into the Judgment of Absolute Divorce so as

to protect the Parties’ privacy and that of the minor children. He argued that he and the children

have a constitutional right to privacy, which the Court should recognize and protect. He argued

that Family Court proceedings do not have a tradition of openness, and that the Court has the

discretion to limit the public’s right of access to such proceedings when there is an important

countervailing interest. One such interest is that he and his current wife are in positions of public

interest and have previously experienced unwanted media attention. Thus, he argued, public

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access to the allegations set forth in the Complaint could be damaging to their lives and careers

and, if the children become aware of the allegations through the media, the children’s lives also

could be detrimentally affected. Finally, he asserted that the Parties, at the time they entered into

the Agreement, recognized the importance of keeping their private information private by

including a clause in the Agreement prohibiting each party from publicizing or disseminating

information detrimental to the other’s personal image, employment, or career. Mr. Orszag

therefore asked that the Court enter an Order sealing all papers, pleadings, hearings, orders, and

transcripts of hearings.

By Order dated October 19, 2012, Judge Dayson elected not to hear Mr. Orszag’s motion

on an emergency basis because there was no emergency warranting an ex parte hearing, but she

scheduled the parties for an expedited hearing.

On October 25, 2013, Ms. Kennedy filed her opposition to Mr. Orszag’s motion,

contending that the public has historically had a presumptive right of access to records in civil

cases, and that such access contributes to the proper functioning of the court system. She argued

that the same presumption of access should apply in family cases unless the case involves private

and embarrassing matters of the parties, which she contends is not the case here. She argued that

Mr. Orszag failed to meet his burden of showing a sufficiently strong countervailing interest to

overcome the presumption that the proceeding should be open to the public. She contended that

courts have not generally found concerns about one’s reputation to be a basis for sealing a court

record because any party in a civil dispute could claim such an interest. She further argued that

courts typically seal cases when certain privacy rights are implicated which, again, are not

present here. She asserted that the possibility of the children learning about the court’s

proceedings was an insufficient reason to seal the case, as that would then be true of all family

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court cases. Finally, she argued that the provision of the Agreement requiring the parties to keep

private certain information is inapplicable because she only asserted facts necessary to support

her claim, and did not assert any facts that can be construed to violate the Agreement.

On October 26, 2012, both parties appeared at the hearing, represented by counsel. At

the hearing, Mr. Orszag asserted that the purpose of his motion was not to protect his privacy,

but to protect that of the children. He argued that, because he is a public figure, there is a greater

likelihood than in most other Family Court cases that the proceedings would command media

attention. He drew the Court’s attention to a prior proceeding between him and Ms. Kennedy,

about which the New York Post wrote an ostensibly sensationalized account. He speculated that,

were the media to cover this child support matter, the minor children and their friends could

learn about the case, causing possible damage to the children. Ms. Kennedy argued, on the other

hand, that most family court cases include some information that the parties may not want

revealed to the general public, but that civil proceedings are presumptively public. She further

argued that public access would not be damaging to the children because the issues in this case

are financial and concern the finances of the parents, rather than potentially damaging

information about the children.

By Order dated October 31, 2012, Judge Dayson denied Mr. Orszag’s motion.

Judge Dayson concluded that, while there is no presumption against sealing family court records,

the possibility of media attention negatively affecting the minor children did not overcome the

policy considerations favoring open proceedings. Judge Dayson observed that this case seemed

to involve routine matters about the Agreement, and was not “an indictment or endorsement of

[either] party’s integrity or character.” Finally, she opined that, while there may exist the

possibility that the minor children could learn of the litigation through the media, this proceeding

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did not present the types of concerns, such as allegations of sexual abuse, that arose in cases in

which sealing had been deemed appropriate.

On November 13, 2012, Mr. Orszag filed an opposition to Ms. Kennedy’s petition.

Seemingly, as a preliminary matter, he explained that Ms. Kennedy’s petition referenced

interactions between the parties that occurred prior to the parties’ last agreement, executed in

2008 (the “2008 Agreement”). Mr. Orszag contended that the 2008 Agreement addressed all

outstanding issues then existing, and, from his perspective, the inquiry and facts for purposes of

determining the instant motion should begin with the parties’ circumstances as they existed since

execution of the 2008 Agreement. As to the merits, Mr. Orszag argued that there had not been a

material change in circumstances. He asserted that the children’s lifestyles have not changed

since the 2008 Agreement, as they continue to live in the same homes, attend the same school,

and have all of the same expenses as they did when the parties signed the 2008 Agreement. He

argued that the depletion of the trust was predictable, given the children’s private school

expenses. He represented that he is willing to take on greater responsibility for the tuition

payments after the trust is depleted. He admitted that his income has increased since 2008, but

alleges that Ms. Kennedy’s requested support amount far exceeds the needs of the children.

On February 19, 2013, the parties appeared, with their attorneys, for a Status Hearing. At

the hearing, Ms. Kennedy represented that Mr. Orszag had not responded to her discovery

requests, but had instead given her a draft protective order, though he had not formally requested

such an order. For his part, Mr. Orszag represented that he was unable to produce certain

financial documents without a protective order in place, as doing so would be a breach of an

agreement he has with his employer. By Order dated February 20, 2013, Judge Dayson required

Mr. Orszag to respond to Ms. Kennedy’s outstanding discovery requests by no later than

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March 8, 2013.

On March 8, 2013, Mr. Orszag filed his Motion for Protective Orders and Request for

Enforcement of Settlement Agreement Provision Regarding Confidentiality, reasoning that, since

his divorce from Ms. Kennedy, he had remarried and taken a job at Citigroup, and that his

employment contract with Citigroup specifically prohibits disclosure of “business confidential

and proprietary information” contained in his employment contract. His employment contract

includes information about his income, employment terms, and benefits. He asserted that similar

information contained in his wife’s employment contract should enjoy protection as well,

because it too prohibits disclosure. He argued that disclosure of such information would be a

breach of their contracts, and that they should not be required to violate their employment

contracts by disclosing financial information. He further argued that a protective order is

merited in this case to protect Citigroup’s private financial data and commercial information. He

asserted that a protective order is needed because Ms. Kennedy intends to use information

obtained in discovery to harass him and his wife. He argued that, because he and his wife are

public personalities, the media may pay attention to this case, creating the potential for

embarrassment and threatening judicial efficiency. He contended, as well, that the parties’

settlement agreement prohibits Ms. Kennedy from publicizing any information that would be

detrimental to his image, employment, or career, and that dissemination of his financial

information poses such a detriment. Finally, he alleged that Ms. Kennedy sought to use the

disclosed information to secure unfair leverage in order to obtain an unjustified increase in child

support, and that a protective order should be entered in order to prevent such an abuse of the

legal process.

On March 22, 2013, Ms. Kennedy filed an opposition to Mr. Orszag’s motion, arguing

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that Mr. Orszag had waived his right to move for a protective order because he failed to indicate

in writing a need for such within 30 days of his having been served with her discovery requests.

She argued further that, in denying Mr. Orszag’s motion to seal, Judge Dayson had already ruled

that Mr. Orszag’s financial information was not sufficiently private or sensitive to justify sealing

the case, and that Mr. Orszag’s motion was thus an attempt to re-litigate issues already decided

in that Order. She further contended that she needed access to evidence about his income in

order to show that there has been a substantial and material change in circumstances and to

calculate the proper amount of child support. She argued that Mr. Orszag’s proposed protective

orders are overly broad, placed unreasonable restrictions on her ability to review documents

designated as confidential, and imposed unwarranted restrictions on her ability to use documents

designated as confidential at trial. Finally, Ms. Kennedy argued that Mr. Orszag’s private

employment contract does not provide a sufficient basis for issuing a protective order because

doing so would be contrary to public policy, and because she is not a party to the employment

contract and thus cannot be bound by its terms.

On March 26, 2013, Mr. Orszag filed a reply to Ms. Kennedy’s opposition, arguing that

Ms. Kennedy would not be prejudiced by the entry of a protective order because it would only

prohibit her from sharing information obtained in discovery with the general public. He further

argued that Judge Dayson did not rule on whether a protective order should be entered and that,

indeed, Judge Dayson indicated that the parties could file motions for protective orders. He

asserted that family cases do not have the same presumption of openness as other cases and, in

any event, the public has no right of access to discovery materials. He argued that he is

contractually bound not to reveal information relating to his employment contract. Finally, he

contended that Ms. Kennedy opposed the protective order in bad faith and in contravention of the

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Agreement.

On May 8, 2013, Judge Dayson entered an Order granting, in part, Mr. Orszag’s motion

for a protective order. In response to one of Ms. Kennedy’s contentions, Judge Dayson noted

that she had not ruled whether a protective order was merited, and that Mr. Orszag was therefore

not barred from seeking one. Indeed, she ruled that, under the test set forth in Grant Heilman

Photography v. Pearson Education, 2012 U.S. Dist. LEXIS 59994 at *9, Mr. Orszag had shown

good cause for a protective order because the documents sought were not important to the public

interest, because Mr. Orszag is not a public official, and because Ms. Kennedy would continue to

have access to the necessary evidence. Accordingly, Judge Dayson issued a protective order

preventing disclosure of documents that Mr. Orszag produced and identified as confidential, and

that any such designated documents or information attached to pleadings would be filed under

seal.

On July 22, 2013, a few days before the start of the original trial date (August 2, 2013),

Ms. Orszag filed a motion to intervene for the limited purpose of seeking continued protection of

her confidential material. She argued that the language of the protective order makes clear that

its protections are to continue through trial. She further argued that, even if the Court were to

construe the language of the protective order only to relate to discovery, the Court should modify

the order to protect Ms. Orszag’s information through trial because her credibility as a news

anchor could be damaged if her personal spending habits are disclosed to the public, thereby

possibly hindering as well her future employment opportunities.

Mr. Orszag, on July 22, 2013, filed his Motion In Limine for Court to Rule to Confirm

Protective Order Coverage for Confidential Material During Trial, asserting that he had produced

confidential information during discovery, with the expectation that the material would remain

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confidential, even during and after the trial. He further reasoned that Ms. Kennedy had not

objected to any of his designations of confidential information. He argued that, unless the

protections afforded by the protective order are extended to trial, Ms. Orszag’s personal

information, which he had turned over, unredacted, during discovery, could become public. He

contended that the language of the protective order, which referenced court personnel’s access to

confidential material during trial and return of confidential material after appeal, was further

proof that the protections provided by the protective order were intended to extend through trial.

He argued that exposure of his finances would not only be a violation of the confidentiality

provisions of his employment contract, but could potentially hinder any eventual return to public

office. Finally, in the event that the Court denied his motion, Mr. Orszag requested that the

Court stay the proceedings to allow him an opportunity to file an interlocutory appeal.

On July 24, 2013, Ms. Kennedy filed an opposition to Mr. Orszag’s motion in limine,

arguing that the protective order, by its terms, applied to discovery, not to trial. Indeed, she

asserted that her interpretation is consistent with Supreme Court precedent, which instructs that

more expansive First Amendment rights apply at trial than during discovery. She argued that,

after Judge Dayson’s October 31, 2012 Order, the “law of the case” doctrine prevents

Mr. Orszag from attempting to re-litigate the issue of whether the entire case should be sealed.

Ms. Kennedy contended that, by the terms of Mr. Orszag’s employment agreement, he would not

be in breach of the agreement if the documents were turned over pursuant to a court order, and

thus sealing is unnecessary. Ms. Kennedy argued that the broad allegations of potential harm to

Ms. Orszag flowing from her information being released do not constitute good cause to seal the

proceedings. Finally, Ms. Kennedy argued that the settlement agreement is not properly read to

bar her from bringing a suit to modify child support through a public trial, and that Mr. Orszag

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has not raised this issue in any previous proceeding.

On July 24, 2013, the parties, with their attorneys, appeared for a Pre-Trial Conference;

counsel for Ms. Orszag appeared as well. At the hearing, Judge Dayson expanded the protective

order to allow Ms. Orszag’s attorney to review those confidential documents that included

information about Ms. Orszag’s finances. Regarding Mr. Orszag’s motion to seal, Ms. Kennedy

argued that Judge Dayson’s October 31, 2012 Order had indicated that the trial should be open,

and that Mr. Orszag’s employment contract does not bar the Court from ordering Mr. Orszag to

disclose his financial information. Ms. Kennedy further argued that the information she was

seeking was not the type of information that is generally sealed. Judge Dayson informed the

parties that, in her view, the issue before the Court was determining which discrete exhibits

should be placed under seal, but that the trial would be open, and that some documents would be

marked as confidential.

On July 31, 2013, Ms. Kennedy filed a supplement to her opposition to Mr. Orszag’s

motion, arguing that sealing the most important trial exhibits and all related testimony would

result in de facto sealing of the entire proceeding. She further argued that protective orders

issued under Rule 26 do not provide a basis to deny the public access to documents used as

evidence at trial and to trial testimony, otherwise virtually all such civil cases would have nearly

closed trials. Finally, she contended that this case does not involve the type of issues that are

traditionally required to remain confidential, such as matters involving trade secrets, and that

Mr. Orszag’s alleged possible harms are general and thus insufficient to overcome the public

policy justifications underlying the public’s right of access to court proceedings.

On August 2, 2013, Ms. Kennedy filed an opposition to Ms. Orszag’s motion to

intervene, arguing that there is no Court rule that allows a non-party to enter a child support

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matter for a limited purpose, and that there is no authority supporting intervention for the

purpose of ensuring that financial information is kept confidential. She argued further that

Ms. Orszag’s intervention is untimely because she should have known that her financial

information could be disclosed as part of this proceeding in October 2012, when Mr. Orszag

cited her privacy as a reason to seal the proceeding, and she therefore should have acted then

rather than on the eve of trial. She contended that Ms. Orszag’s concerns about her reputation do

not merit sealing the case beyond discovery because the concerns are speculative and do not

outweigh the presumption of public access to court proceedings. She asserted that, like

Mr. Orszag’s employment contract, Ms. Orszag’s allows her to disclose her financial information

pursuant to a court order. Finally, she argued that intervention is unnecessary because

Mr. Orszag can adequately protect Ms. Orszag’s privacy interests, particularly here, where their

finances and tax filings are intertwined and joint.

On August 2, 2013, the parties appeared, with counsel, for a Motions Hearing;

Ms. Orszag’s counsel was present, as well. At the hearing, Judge Dayson granted, over

objection, Ms. Orszag’s motion to intervene for the limited purpose of being heard with respect

to the confidentiality of her information. Regarding the sealing of exhibits, Mr. Orszag

requested that the protective order’s protections continue through trial, arguing that the Court had

found that there was good cause to issue the protective order and that extending its protections

through trial would be consistent with the protective order’s spirit and purpose. Mr. Orszag

argued that the public does not have a presumptive right of access to family cases, and that the

information divulged in this case could easily be abused. He further argued that his finances

were so intertwined with Ms. Orszag’s as to make her expenses indistinguishable from his—they

share bank accounts and Ms. Orszag frequently uses his American Express card. Ms. Kennedy

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argued that the information Mr. Orszag sought to seal constituted the “core of the case,” and that

Mr. Orszag’s expense information should not be granted protection simply because he chose to

intermingle his funds and expenses with Ms. Orszag’s. Ms. Orszag argued that her information

is not relevant to the proceeding, and that disclosure of such information could potentially

damage her current and future career prospects. Thus, she argued that documents containing her

income and spending habits should be sealed.

Judge Dayson concluded that there is no presumption of openness in family cases, and

that she would need to engage in a balancing of public versus private interests to determine

whether the protective order should extend through trial. After engaging in that balancing, she

determined that certain designated trial exhibits, which contained information that had previously

been marked as confidential, including Ms. Orszag’s spending habits and earnings, would be

introduced at trial under seal. She concluded that, because Ms. Orszag is a third party, her

information was not relevant to the issue before the Court. Judge Dayson indicated that she was

“willing to seal the proceedings” with regard to Ms. Orszag’s information, though she

appreciated that attempting to do so could be logistically difficult. Judge Dayson indicated,

however, that the seal would not extend to all information related to Ms. Orszag. For example,

Judge Dayson specifically declined to seal documents concerning the rent that Mr. and

Ms. Orszag pay for their apartment in New York, as the apartment is part of the children’s actual

family experience. Judge Dayson sealed the transcript of the August 2 hearing.

On January 17, 2014, Ms. Orszag filed her Motion to Seal the Trial Transcripts, arguing

that Judge Dayson’s August 2, 2013 decision to seal exhibits containing Ms. Orszag’s

confidential information, and sealing the proceedings with respect to Ms. Orszag’s confidential

information, constituted the law of the case. Ms. Orszag thus requested that the entire transcript

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be sealed until after the trial, to afford the parties a reasonable opportunity to review the

transcript and designate which parts contain confidential information. The parties would then

present their designations to the Court and the remainder of the transcript would be unsealed.

On January 17, 2014, Mr. Orszag filed his motion in limine2 seeking, among other

things,3 to seal trial testimony that pertains to confidential material or exhibits that Judge Dayson

has determined will be sealed. Mr. Orszag argues that, if testimony relating to confidential

information or sealed exhibits is not, itself, kept confidential, the protective order’s protections

would be rendered meaningless. He further argues that he would be prejudiced if his information

is made public at trial because he has relied upon the protections provided by the protective

order. He contends that he is still entitled to continued protection of his confidential material for

the reasons cited in his motion for a protective order. He believes that the spirit of D.C. Code

§ 16-2344 suggests that the District of Columbia Council intended to give child support and

custody matters greater protection than other civil cases. Finally, he argues that the Agreement

prohibited the parties from publicizing information detrimental to the other’s image,

employment, or career. Thus, he requests that the Court seal the entire transcript, allow the

parties to designate the parts of the transcript that relate to confidential material, then unseal the

parts of the transcript that do not contain confidential material. He further requests that, if third

parties are present in the courtroom during testimony about such confidential material or sealed

2 Although Mr. Orszag’s motion is styled as a motion in limine, the primary focus of his motion concerns the sealing of trial testimony. Thus, the Court will construe his motion as a motion to seal, and a motion in limine solely as to Ms. Kennedy’s supplemental exhibit 98. See Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 46 (D.C. 1978) (“[T]he nature of a motion is determined by the relief sought, not by its label or caption”). 3 Mr. Orszag’s motion also requested striking Ms. Kennedy’s supplemental exhibit 98, which contained deposition testimony from an expert witness that Mr. Orszag retained to rebut the testimony of Dr. Avram Mack. As the Court has excluded Dr. Mack’s testimony, the Court will grant Mr. Orszag’s request.

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exhibits, the Court clear the courtroom of those persons. Finally, in the event that the Court

denies his request, Mr. Orszag requests leave to seek an interlocutory appeal of the decision.

On January 21, 2014, the evening before the trial was to commence, Media Intervenors

filed a motion for leave to intervene in the case “for the limited purpose of being heard in

connection with their contemporaneously filed motion to unseal court records, and to oppose

Defendant’s motion in limine to keep evidence under a protective order even after being

admitted at trial.” By their motion, Media Intervenors argued that the public has a presumptive

right of access to court documents in civil trials, which extends to pleadings and evidence

submitted with those pleadings. Media Intervenors argue that a party seeking to seal a trial must

show specific, substantial harm to overcome the presumption of openness, and that Mr. Orszag’s

justifications—protection of his future professional aspirations and his confidentiality agreement

with Citigroup—are insufficient to overcome the presumption. Media Intervenors argue that,

although the District of Columbia Court of Appeals found in Morgan v. Foretich, 521 A.2d 248,

252 (D.C. 1987), “Family Division proceedings do not have the same tradition of openness as

criminal or non-family civil cases,” the case is distinguishable because, here, the issues are not

related to the welfare or privacy interests of the children. Finally, they argue that D.C. Code

§ 16-2344 is not relevant because it concerns parentage proceedings and, in any event, it predates

all Supreme Court and District of Columbia Court of Appeals precedent regarding the public’s

right of access.

On January 22, 2014, the parties appeared for a trial, both represented by counsel.

Counsel for Ms. Orszag and counsel for Media Intervenors also appeared. As to Ms. Orszag’s

motion to seal, Ms. Orszag asserts that the law of the case applies to the designated exhibits

containing her personal information and the portions of the trial transcript that discuss such

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information. In other words, she maintains that the exhibits and trial transcripts are to be sealed,

pursuant to Judge Dayson’s pre-trial ruling. She argues that her financial information is not

relevant to the proceeding, but is necessarily contained in the trial exhibits because she and

Mr. Orszag have joint accounts and file joint taxes. She contends that redaction would not be a

workable solution because people would be able to calculate her income and expenses by

subtracting Mr. Orszag’s income and expenses from the listed totals. In opposition,

Ms. Kennedy reiterates her position that sealing is improper and that the entire proceeding

should be open. She argues that Ms. Orszag, by asking that the transcript be sealed and the

courtroom be cleared, is, in essence, asking the Court to seal the entire proceeding.

Ms. Kennedy nevertheless agrees that Ms. Orszag’s income and expenses are not relevant to the

issue before the Court, and asserts that she would be willing to redact any of Ms. Orszag’s

information, as well as the totals, which would prevent Ms. Orszag’s information from being

uncovered. Mr. Orszag argues that Judge Dayson previously rejected Ms. Kennedy’s arguments,

and that Judge Dayson’s ruling indeed constituted the law of the case.

After having heard brief oral arguments on January 22, 2014, and having considered the

parties briefs in support of their positions, the Court granted Media Intervenors’ motion for leave

to intervene on February 3, 2014, but left for further briefing whether the “law of the case”

doctrine can be invoked as to Judge Dayson’s rulings.

On February 14, 2014, Mr. Orszag filed an opposition to Media Intervenors’ motion,

arguing that the “law of the case” doctrine bars relitigation of issues decided by Judge Dayson at

the pre-trial hearing because her rulings required a hearing and specific findings of fact regarding

balancing the public’s right of access to court proceedings against the parties’ private interests in

sealing the proceedings. He further argues that Judge Dayson intended for her ruling to apply at

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trial—regardless of whether it was before herself or another judge—and that she refused to

reconsider her decision numerous times during that hearing. He argues that Judge Dayson

already considered the arguments posed by Media Intervenors in ruling on Ms. Kennedy’s

oppositions to previous motions to seal. He further argues that, in making her rulings to seal

exhibits, Judge Dayson employed the proper standard by balancing his private interests and

Ms. Orszag’s against the presumptive public interest in open proceedings.

On February 14, 2014, Ms. Orszag filed an opposition to Media Intervernors’ motion,

arguing that Judge Dayson’s ruling was sufficiently final to constitute the law of the case and

that, indeed, Judge Dayson intended her ruling to be final, by virtue of her permitting

Ms. Kennedy to appeal her decision. Ms. Orszag reasons that Ms. Kennedy’s electing not to do

so is clear evidence that Ms. Kennedy inferred that Judge Dayson’s decision was the law of the

case. Ms. Orszag further argues that, even if Judge Dayson’s decision is not considered the law

of the case, her information should nonetheless be kept under seal because her privacy interests

outweigh the public’s interest in having the proceeding be open.

Ms. Orszag’s Motion to Seal

The “law of the case” doctrine provides, as follows: “[O]nce the court has decided a

point in a case, that point becomes and remains settled unless or until it is reversed or modified

by a higher court.” Kritsidimas v. Sheskin, 411 A.2d 370, 371 (D.C. 1980). The District of

Columbia Court of Appeals has ruled that “the doctrine does not apply where the first ruling has

little or no ‘finality’ to it; such a ruling does not constitute the ‘law of the case.’” Id. at 372. The

Court of Appeals instructs that “most pretrial rulings . . . are “interlocutory and lack the degree of

finality required for an application of the ‘law of the case’ rule.” United States v. Davis, 330

A.2d 751, 755 (D.C. 1975); see also Kritsidimas, 411 A.2d at 372 (“[T]he doctrine does not

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apply where the first ruling has little or no finality to it; such a ruling does not constitute the law

of the case.”). Indeed, an interlocutory ruling “by hypothesis is not final, and therefore subject to

reconsideration prior to entry of a final judgment.” Williams v. Vel Rey Props., Inc., 699 A.2d

416, 419 (D.C. 1997) (citations omitted)

Justice Oliver Wendell Holmes observed that the law of the case doctrine “merely

expresses the practice of courts generally to refuse to reopen what has been decided, not a limit

to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). The United States Court of

Appeals for the Seventh Circuit observed: “Obviously we cannot be expected to reverse a

correct decision by one [trial] Judge simply because we find that it is contrary to a prior ruling by

another [trial] Judge in the same case, i.e., contrary to the ‘law of the case.’” Parmelee Transp.

Co. v. Keeshin, 292 F.2d 794, 797 (7th Cir. 1961), cert. denied, 368 U.S. 944 (1961). The

District of Columbia Court of Appeals has taken the same approach, noting, “where views of the

law expressed by a judge at one stage of the proceedings differ from those of another at a

different stage, the important question is not whether there was a difference but which view was

right.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 593 (D.C. 2000) (quoting Barnes

v. Schlein, 473 A.2d 1221, 1222 (Conn. 1984)).

In cases where the “law of the case” doctrine is deemed inapplicable, the Court of

Appeals has concluded that:

[w]hile it is highly desirable that a judge show respect for prior rulings made by another judge in the same case, and should not lightly depart from them, the ultimate responsibility rests on the judge to whom the case is assigned for trial on the merits. If the trial judge is strongly convinced, as was the situation here, that a preliminary or interlocutory ruling made by another judge was clearly erroneous, the trial judge is not bound to follow that ruling.

District of Columbia v. Faison, 278 A.2d 688, 690 (D.C. 1971); see also McNeill v. Jamison, 116

A.2d 160 (D.C. 1955) (“Long ago it was decided that interlocutory rulings do not settle the law

19

of a case and are not conclusive or binding on the trial judge, who has the ultimate responsibility

of deciding the case on the merits.”).

The Court finds instructive the Court of Appeals’ ruling in Jung v. George Washington

Univ., 875 A.2d 95, 102-103 (D.C. 2005). In that case, Plaintiff Jung argued that the trial judge

should have allowed testimony from Mr. Jung’s expert, when the pre-trial judge had ruled that

such testimony would be received. The Court of Appeals found that “[t]he doctrine is not

applicable here because the earlier in limine ruling was not of sufficient finality to invoke its

application.” Id. at 102-103. The Court noted that such rulings are generally provisional and the

trial judge should not feel bound by them. Id. at 103 (citations omitted). The trial judge must

have the latitude, indeed the discretion, to conduct the trial in a way that is appropriate, fair and

efficient. And, just as the trial judge is “the gatekeeper for expert testimony,” Id. at 104, the trial

judge is, as well, the gatekeeper as to whether documents merit sealing and how the trial itself

will be conducted.

Mr. Orszag argues that Judge Dayson’s decisions are sufficiently final for the “law of the

case” doctrine to apply because they “require[d] hearings and findings of fact,” which the Court

of Appeals in Kritsidimas said were “exactly the kinds of judicial exercises the law of the case

doctrine is designed to prevent being repeated.” Kritsidimas, 411 A.2d at 371. In Kritsidimas,

the Court of Appeals ruled that a trial judge’s denial of a motion to dismiss for want of

prosecution constituted the law of the case, finding “sufficient similarity between rulings on

suppression motions and rulings on motions to dismiss for want of prosecution to justify

according them similar degrees of finality for these purposes” because “[b]oth types of motion

demand detailed judicial consideration of specific facts surrounding a party’s actions in bringing

a case to trial.” Id. at 373.

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The instant motions to seal are unlike a motion to suppress, a motion to dismiss, or a

motion for summary judgment—the denial of which has been considered the law of the case, see

Centennial Insurance Co. v. Dowd’s Inc., 306 A.2d 648 (D.C. 1973)—in that those motions bear

on the underlying merits of the case. Motions to seal exhibits, on the other hand, are strictly

procedural and have no bearing whatsoever upon the underlying merits of the case. See also

Weinberg v. Johnson, 518 A.2d 985, 987 (prior ruling on motion for a directed verdict was the

law of the case where the issues raised in both motions were the same). In fact, Judge Dayson’s

rulings concerning whether certain documents should be sealed at trial is more akin to the non-

final, interlocutory, in limine rulings in Jung, though in Jung the trial was in progress.

The Court appreciates that, at the August 2, 2013 hearing, Judge Dayson concluded that

“there is not a presumption in favor of openness that applies [to this case] in the same way as

with criminal trials or even with other civil trials.” The Court appreciates as well that

Judge Dayson balanced the public and private interests in determining that Mr. Orszag’s private

interest in keeping confidential information related to his Citigroup employment, when combined

with Ms. Orszag’s privacy interest as a third-party, outweighed the “qualified” presumption of

openness. As such, she ruled that, “to the extent that [exhibits] are covered by the confidentiality

agreements or are integrated with Ms. Orszag’s information, I am going to have those specific

exhibits sealed.” Judge Dayson later stated that, while she would not revisit her ruling regarding

the general request to seal, she would be willing to hear arguments regarding whether specific

exhibits fell within the scope of her decision. She then made findings of fact regarding whether

each designated exhibit contained either information regarding Mr. Orszag’s Citigroup

employment, or information regarding Ms. Orszag’s personal income and expenses, which could

21

not be redacted. The Court, here, does not stray from Judge Dayson’s rulings lightly. Without

hearing the evidence during the dynamics of the trial, however, this Court cannot say whether

any of the designated documents, or portions thereof, should be sealed and will therefore not be

stymied by Judge Dayson’s ruling. The Court knows for sure, however, that the trial should and

shall be open and the Court intends to receive into evidence all that is relevant and admissible

without any seal. This does not mean that the Court will not require redaction where that is

possible.

Mr. Orszag’s reliance on the “law of the case” doctrine is curious because, in seeking to

seal certain information about his income or expenses—which constitutes the core of any child

support matter—he is effectively seeking to seal the entire proceeding, contrary to

Judge Dayson’s October 31, 2012 ruling that the proceeding would be open. What is more, the

Court is not persuaded at this juncture that any of the documents warrant sealing.

Ms. Orszag argues that Judge Dayson’s decision should constitute the law of the case

because Judge Dayson intended for the ruling to be final and to apply at trial. However, she has

provided no legal support for the proposition that a previous judge’s intention that a ruling be

final renders an interlocutory ruling sufficiently final for the “law of the case” doctrine to be

implicated. Indeed, the Court of Appeals held, in Faison, McNeil, and Jung, that interlocutory

rulings are not binding on a subsequent judge “who has the ultimate responsibility of deciding

the case on the merits.” See Jung, 875 A.2d at 103 (citations omitted). Ms. Orszag’s reliance on

the fact that Ms. Kennedy did not pursue an interlocutory appeal of Judge Dayson’s August 2,

2013 ruling is misplaced. The Court recognizes that the United States Court of Appeals for the

District of Columbia Circuit has stated that an order becomes the law of the case if not appealed

when the opportunity arises; however, the District of Columbia Court of Appeals has not adopted

22

that position. See Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999).

Having considered all of the pleadings filed in this case and having reviewed all of the

oral presentations in this case, including those before Judge Dayson, and the relevant law, the

Court finds with great reluctance, and despite Judge Dayson’s pretrial rulings, that Ms. Orszag

has not demonstrated sufficiently that she is entitled to have certain financial information sealed,

and thus the Court is constrained to deny her motion. Ms. Orszag’s position throughout this

litigation, a position with which both Mr. Orszag and Ms. Kennedy agree, is that information

regarding her income and expenses is not relevant to this proceeding. It should be noted that this

Court agrees with that position. During the August 2, 2013 hearing, Judge Dayson explained

that the compelling reason underpinning her decision to seal exhibits and portions of the trial

proceedings which relate to Ms. Orszag’s information was that Ms. Orszag’s information was

not relevant to her decision. It follows that, if evidence is not relevant, it should be excluded

rather than admitted under seal. See Fed. R. Civ. P. 402 (“Irrelevant evidence is not

admissible.”); see also United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d

871, 897 (D.C. Cir. 2010) (“To be admitted, evidence must be relevant.”).

The Court agrees that Ms. Orszag’s personal income, personal expenses, and employment

contract are not relevant. As such, her personal income, personal expenses, and employment

contract will be excluded from evidence, and, where feasible, the Protective Order will continue

to apply to her information only. The parties suggest, unpersuasively, that Mr. Orszag and

Ms. Orszag’s expenses and tax filings are inextricably intertwined. The Court does not agree. In

order to decide this case, the Court must and will consider, unsealed, those aspects of

Mr. Orszag’s compensation, earnings, and expenditures that bear upon the support of the parties’

children. The Court’s function will not be hampered simply because Mr. Orszag and Ms. Orszag

23

elected to join their finances. To the extent possible, the Court will accommodate Ms. Orszag’s

privacy concerns. In that vein, the Parties shall, before appearing for trial, redact from all

exhibits information regarding Ms. Orszag’s personal income and personal expenses. Her

employment contract shall not be admissible. This includes redaction of all totals so that prying

eyes will not be able to ascertain Ms. Orszag’s income or expenses by subtracting Mr. Orszag’s

income or expenses from any totals. Mr. Orszag’s income and expenses are relevant and will not

be sealed. The Parties will carefully craft all trial questions so as not to implicate Ms. Orszag’s

personal income and expenses. Again, Judge Dayson’s rationale for sealing such documents was

to ensure that Ms. Orszag’s personal information remain private. This ruling is consistent with

that rationale, and the same outcome will be achieved, if possible.

Mr. Orszag’s Motion in Limine and the Media Intervenors’ Motion for Access

By his motion in limine, Mr. Orszag argues that the protective order’s protections would

be rendered meaningless if testimony relating to his confidential information, or sealed exhibits

which contain his confidential information, were opened to the public as part of the trial, and that

he has relied on the protective order in disclosing confidential information during discovery. He

further represents that the private interests underlying Judge Dayson’s grant of the protective

order remain viable. Finally, he argues that the spirit of D.C. Code § 16-2344 indicates that child

support proceedings are entitled to greater protection than other civil cases, and that the parties

agreed not to publicize any information about each other that may prove harmful.

By their Motion to Unseal Court Records, which they state also serves as an opposition to

Mr. Orszag’s motion in limine, Media Intervenors argue that Mr. Orszag’s claimed interests in

sealing the proceedings are insufficient to overcome the public’s presumptive right of access to

court proceedings. They argue that Mr. Orszag has failed to show specific, substantial harms

24

that will result from the proceedings being open. They further argue that this is not the type of

case which is generally sealed—the welfare or privacy interests of the minor children are not

implicated. Finally, they argue that D.C. Code § 16-2344 is inapplicable to this proceeding.

As indicated above, the Court is not bound by Judge Dayson’s interlocutory rulings,

including the decision to seal exhibits at trial, if the Court believes that such decisions are clearly

erroneous. See Faison, 278 A.2d at 690. In Nixon v. Warner Communications, 435 U.S. 589

(1978), the Supreme Court noted that “the courts of this country recognize a general right to

inspect and copy public documents, including judicial records and documents.” Id. at 597; see

also Mokhiber v. Davis, 537 A.2d 1100, 1107-08 (recognizing a presumptive public right of

access to pretrial court records based on common law considerations).4

Given the public’s presumptive common law right of access to inspect court records in

civil proceedings, a court is permitted to “bar disclosure only when the specific interests favoring

secrecy outweigh the general and specific interests favoring disclosure.” Mokhiber, 537 A.2d at

1108; see also R & G Mortgage Corp v. Fed. Home Loan Mortgage Corp, 584 F.3d 1, 12 (1st

Cir. 2009) (“Placing court records out of public sight is a serious step, which should be

undertaken only rarely and for good cause. Sealing orders are not like party favors, available 4 In Mokhiber, the Court of Appeals noted that its analysis was limited to “ordinary civil litigation” and that “different considerations are present in court proceedings of a type not having such a tradition of openness.” Mokhiber, 537 A.2d at 1108 n.8 (citing Morgan v. Foretich, 521 A.2d 248, 252 (D.C. 1987)). In Morgan, the Court of Appeals, recognizing that “Family Division proceedings do not have the same tradition of openness as criminal or non-family civil cases,” held that “the presumption of openness and the standard for closure that apply in criminal cases [. . .] do not apply to the evidentiary phase of a civil contempt hearing in a child custody and visitation rights case.” Morgan, 521 A.2d at 252. The Morgan court explicitly cautioned that its holding was “limited to the evidentiary phase of a civil contempt proceeding in the Family Division,” recognizing that the court was “not presented with other proceedings in the Family Division not involving the potential for incarceration of one of the parties.” Id. at 253 n.12. The instant proceeding deals solely with child support, rather than custody or visitation, a financial matter that does not “necessarily implicate[] the child[ren]’s interest.” Id. at 252-53. As such, the presumption of a public right of access applies in this case, as it would in any other civil matter.

25

upon request or as a mere accommodation.”); In re Application of Nat’l Broad. Co., 653 F.2d

609, 613 (D.C. Cir. 1981) (“access [to court records] may be denied only if the district court,

after considering the circumstances of the particular case, and after weighing the interests

advanced by the parties in light of the public interest and the duty of the courts, concludes that

justice so requires.”) (Internal references and quotation marks omitted).

The private interests cited by Mr. Orszag throughout this proceeding are minimal. First,

in his March 8, 2013 motion seeking a protective order, he argued that he should not have to

disclose documents relating to his employment with Citigroup because his employment contract

prohibits disclosure of Citigroup’s confidential and proprietary information, and that his doing so

would constitute a breach of the agreement.5 As an initial matter, Mr. Orszag has not cited any

legal authority that requires a court to be bound by the terms of a private non-disclosure

employment agreement, or cases where such an agreement was determinative in a court’s

decision to seal evidence and portions of a trial. Although courts have recognized that the public

does not necessarily have a right to inspect “business information that might harm a litigant’s

competitive standing,” Nixon, 435 U.S. at 598, the documents pertinent to this case merely

concern Mr. Orszag’s compensation. Such information is not a trade secret, and does not bear

upon Citigroup’s day-to-day operations. Any other document that does not bear upon

Mr. Orszag’s compensation will likely be excluded as inadmissible and, as such, if produced

under a Protective Order, will remain so protected.

Mr. Orszag, as an attachment to his July 22, 2013 motion to extend the protective order,

submitted an affidavit from an attorney for Citigroup, who averred that disclosure of

5 Mr. Orszag also relies upon similar confidentiality provisions in Ms. Orszag’s employment contract with Disney but, as her information has been excluded as irrelevant and will be redacted from all trial exhibits, the Court will not consider arguments rooted in Ms. Orszag’s privacy rights.

26

compensation information could be used by other firms to recruit away Citigroup’s executives

and could sew workplace discontent. That is not a basis for sealing the exhibits and testimony in

this case, where the core facts—the parties’ income and expenses—will be the underpinning of

the Court’s ultimate ruling on whether there is a basis to increase Mr. Orszag’s support

obligations. Were the Court to adopt such a position, any employee of any business could ask

that all proceedings in which a party’s finances are at issue be sealed, thereby eviscerating the

public’s right of access. Further, as Ms. Kennedy has argued, and Mr. Orszag has seemingly not

disputed, Mr. Orszag’s employment contract contains a carve-out which allows him to disclose

otherwise confidential information to comply with a court order. On February 20, 2013,

Judge Dayson ordered Mr. Orszag to respond to Ms. Kennedy’s then-outstanding discovery

requests, which included information regarding Mr. Orszag’s salary.

Second, Mr. Orszag argued in his March 8 motion that he is a “publically prominent

personalit[y],” and that he will thus be at risk for annoyance or embarrassment if his confidential

information is disclosed to the public. Mr. Orszag relies upon Stern v. Cosby, 529 F. Supp. 2d

417 (S.D.N.Y. 2009), but that case is inapposite. The records at issue in Stern were a recording

and a transcript of a deposition, neither of which had been entered into evidence—the public has

no right of access to such documents. See Mokhiber, 537 A.2d at 1109. Further, the decision in

Stern rested, in large part, upon the intense media attention paid to the case, which had already

hampered judicial efficiency. Stern, 529 F. Supp. 2d at 422-23. The media has not paid nearly

that level of attention to this case and, given the mundane financial matters involved in this case,

the Court sees no reason why media attention sufficient to hinder the efficient disposition of this

case would manifest itself at this late stage. In any event, courts are regularly faced with child

support cases in which one party is a recognized figure and, in those cases, the party’s income

27

information appears to have been made a part of the public record. See e.g., Finley v. Scott, 707

So.2d 1112 (Fla. 1998); Smith v. Freeman, 149 Md. App. 1 (Md. Spec. App. 2002).

Third, in his March 8 motion, Mr. Orszag argued that Paragraph 24 of the Agreement

prohibits Ms. Kennedy from publicizing or disseminating his confidential financial information.

Paragraph 24 of the Agreement provides, specifically, as follows: “Each party recognizes the

other party’s right to privacy in all public or private matters [. . .]. Each will refrain from

publicizing or disseminating information of whatever nature or kind about the other party that is

detrimental to the other’s personal image, employment, or career.” As an initial matter, this

provision cannot properly be read to prevent Ms. Kennedy from seeking, through the courts, a

modification of child support when she believes an increase is warranted. Indeed, when the

parties wished to prohibit further court proceedings on an issue, they explicitly memorialized the

prohibition in the Agreement, as evidenced by the complete bar to either party seeking an award

of alimony found in Paragraph 38 of the Agreement. Further, Mr. Orszag has not provided the

Court with any legal authority to support his contention that private parties can contract away the

public’s right of access to documents entered as evidence at trial in a civil case. Finally,

Mr. Orszag has failed to explain, beyond a reference to the potential that disclosure could

“damage any eventual return to Federal Government service or other public office,” why

disclosure of his financial information would be detrimental to his image, employment, or career.

Such harms appear speculative, at best. In any event, even if Ms. Kennedy’s actions do

constitute the disclosure of detrimental information, Mr. Orszag’s remedy is in a breach of

contract suit, not a sealing order.

Fourth, Mr. Orszag argues, both in the instant motion and in his July 22, 2013 motion,

that he would be prejudiced if the Court declined to extend the protections of the protective order

28

to trial because he relied upon those protections in disclosing confidential information during

discovery. In In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust

Litigation, 101 F.R.D. 34 (C.D. Ca. 1984), the United States District Court for the Central

District of California aptly rejected a similar reliance-based argument, finding as follows:

The argument that the defendants' reliance on [the pretrial protective order] during years of discovery shields them now from the burden of justifying protection of the documents ignores the fact that civil litigants have a legal obligation to produce all information "which is relevant to the subject matter involved in the pending action," Fed. R. Civ. P. 26(b)(1), subject to exceptions not involved here. Thus, defendants cannot be heard to complain that their reliance on the protective order was the primary cause of their cooperation during years of discovery: even without [the protective order], I would eventually have ordered that each discoverable item be turned over to the plaintiffs. Umbrella protective orders do serve to facilitate discovery in complex cases. However, umbrella protection should not substantively expand the protection provided by Rule 26(c)(7) or countenanced by the common law of access.

Id. at 43-44; see also Lugosch v. Pyramid Co., 435 F.3d 110, 125-26 (2d Cir. 2006). Similarly,

Judge Dayson ordered Mr. Orszag to respond to Ms. Kennedy’s discovery requests. He cannot

now claim that his doing so was solely predicated upon the entry of the protective order. Support

matters, by their nature, require exchange of all pertinent financial information so as to foster

settlement or ready litigants for trial. Even without a protective order, Mr. Orszag would have

been required to exchange reliable relevant evidence regarding his compensation and his lifestyle

expenditures.

Fifth, and finally, Mr. Orszag argues that the “spirit” of D.C. Code § 16-2344 indicates

that child support and custody proceedings are “deserving of greater protection than other cases.”

D.C. Code § 16-2344. As Judge Dayson noted, and none of the parties dispute, D.C. Code

§ 16-2344 does not apply in this case because the Court’s original jurisdiction over this

proceeding stems from the Court’s jurisdiction over actions for divorce brought under D.C. Code

§ 11-1101(a)(1). Further, the Court sees no reason why child support cases which are unrelated

29

to parentage proceedings, and which do not involve any of the types of allegations or claims that

would be harmful to the minor children—such as evidence of child abuse or of the children’s

mental health—would require the proceeding and this Court’s decision to be, in essence, sealed.

This matter, indeed, is more akin to other domestic relations matters or civil cases, which are

open proceedings. Thus, Mr. Orszag’s privacy interest in the documents remaining sealed is

minimal.

In contrast, the public’s interest in open court proceedings is significant. To be clear, the

public’s interest is not necessarily in the facts and circumstances of a given case. As the United

States Court of Appeals for the District of Columbia Circuit noted in In re Reporters Committee

for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985):

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Id. at 1335 (quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (Mass. 1884)). In Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court recognized three policy

considerations underlying the public’s right of access, as follows. First, “the open processes of

justice [. . .] provid[e] an outlet for community concern, hostility and emotion.” Id. at 571.

Second, “contemporaneous review in the form of public opinion is an effective restraint on

possible abuse of judicial power.” Id. at 592 (Brennan, J., concurring). Third, “publicizing trial

proceedings aids accurate factfinding.” Id. at 596 (Brennan, J., concurring). While Richmond

Newspapers dealt with criminal trials, the Sixth Circuit has recognized that “[t]he Supreme

Court’s analysis of the justifications for access to the criminal courtroom apply as well to the

civil trial.” Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983).

30

Further, it is important that the public knows that the courts do not extend special treatment to

parties simply because they hold certain positions in corporate America or receive certain

compensation packages. Mr. Orszag appears to be of the view that he should be afforded

treatment different from other parties who appear before this Court under similar circumstances.

The public needs to know that dispensation of justice is done consistently, no matter the socio-

economic station of the litigants who happen to be before this public institution for resolution of

a dispute. Further, the Court is required to ensure that the matter is resolved, fairly and

efficiently. This decision intends to effect that objective.

After reviewing the pleadings, and the entire record in this case, the Court is constrained

to receive into evidence all relevant and admissible exhibits, or portions thereof, unsealed.

Mr. Orszag’s private interests as articulated are not sufficient to overcome the public’s interest in

an open proceeding. The Court will thus order that all exhibits admitted at trial, and all trial

testimony, will be open to the public. The parties are still prohibited from using documents or

information obtained during discovery, including documents deemed inadmissible or which are

not entered into evidence at trial, for any purpose other than this litigation or negotiations

pursuant to this litigation. As the Court is unsealing the exhibits as they are admitted at trial and

the trial testimony, the Court will deny the Media Intervenors’ motion as moot.

Mr. Orszag’s Request for an Interlocutory Appeal

In his motion in limine, Mr. Orszag requests that, should the Court deny his request to

seal all trial testimony containing information protected under the protective order, the Court stay

the proceedings pending an appeal of the issue. Mr. Orszag argues that a decision not to seal the

trial testimony would be a conclusive decision with respect to that issue, that the issue of whether

to seal testimony is separate from Ms. Kennedy’s request to modify child support, and that the

31

Court’s decision would be effectively unreviewable on appeal because testimony involving the

confidential information would already be public. Finally, Mr. Orszag represents that

Ms. Kennedy will not be prejudiced by a stay of the proceedings because the needs of the

children continue to be met, and because Ms. Kennedy may seek retroactive child support.

Under D.C. Code § 11-721(d):

When a judge of the Superior Court of the District of Columbia in making in a civil case [. . .] a ruling or order not otherwise appealable under this section, shall be of the opinion that the ruling or order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from the ruling or order may materially advance the ultimate termination of the litigation or case, the judge shall so state in writing in the ruling or order. The District of Columbia Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from that ruling or order, if application is made to it within ten days after the issuance or entry of the ruling or order. An application for an appeal under this subsection shall not stay proceedings in the Superior Court of the District of Columbia unless the judge of that court who made such ruling or order or the District of Columbia Court of Appeals or a judge thereof shall so order.

The District of Columbia Court of Appeals has instructed that, if interlocutory appeals “are to

serve the purpose for which they were intended, they must be used only when the alternative

would mean greater delay and expense than would be caused by the interlocutory review itself.

It is evident that only in the "exceptional" case will that be the result.” Plunkett v. Gill, 287 A.2d

543, 545 (D.C. 1971). The Court of Appeals further cautioned that D.C. Code § 11-721(d) was

not “[i]ntended merely to provide [interlocutory] review of difficult rulings in hard cases.” Id.

(quoting United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)).

After reviewing the pleadings, and the entire record in this case, the Court is constrained

to deny Mr. Orszag’s request. An immediate appeal of the Court’s decision will not materially

advance the ultimate determination of the litigation; whether the trial is sealed has no bearing on

the underlying merits of the litigation. Further, an interlocutory review would cause significantly

more delay and expense than going forward with the trial as scheduled. The Court notes that the

32

parties’ trial is less than one month from the date of this Order. While Mr. Orszag maintains that

the children’s needs are currently being met, Ms. Kennedy quarrels with that position, as that is a

primary basis for her seeking a modification to Mr. Orszag’s support obligation.

ACCORDINGLY, it is this 26th day of February, 2014, hereby,

ORDERED that Intervenor’s Motion to Seal the Trial Transcripts is DENIED; and it is

further

ORDERED that information relating to Ms. Orszag’s personal income, personal

expenses, and any totals thereof shall be redacted from all trial exhibits; and it is further

ORDERED that Defendant’s Motion in limine is GRANTED, insofar as Plaintiff’s

Supplemental Exhibit 98 is excluded from evidence; and it is further

ORDERED that all relevant exhibits admitted as evidence at trial, and all testimony

regarding such exhibits, shall not be under seal; and it is further

ORDERED that all documents designated as confidential that are not relevant and are

not admitted into evidence shall remain under seal and any disclosure of said documents shall be

deemed a violation of the Protective Order and this Order; and it is

FURTHER ORDERED that Media Intervenors’ Motion to Unseal Court Records is

DENIED as moot.

_____________________Alfred S. Irving, Jr.

Associate JudgeSigned in Chambers

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Copies to:

Gregory Nugent, Esq.1701 Pennsylvania Avenue, NW, Suite 300Washington, DC 20006Counsel for Plaintiff

Debra Soltis, Esq.910 17th Street, NW, Suite 800Washington, DC 20006Counsel for Plaintiff

Anne White, Esq.7735 Old Georgetown Road, Suite 1100Bethesda, MD 20814Counsel for Defendant

Darryl Feldman, Esq.1900 M Street, NW, Suite 600Washington, DC 20036Counsel for Defendant

Casey Greenfield, Esq.65 Bleecker StreetNew York, NY 10012Counsel for Defendant

Jonathan Porter, Esq.1155 F Street, NW, Floor 12Washington, DC 20004Counsel for Intervenor

Gregg Leslie, Esq.1101 Wilson Boulevard, Suite 1100Arlington, VA 22209Counsel for Media Intervenors