## Facts

- Three Ohio utility companies jointly developing the William H. Zimmer Nuclear Power Plant sued General Electric Co. and Sargent & Lundy Engineers over alleged design/modification problems, later adding fraud and RICO claims against GE.
- During discovery, the parties operated under a negotiated protective order allowing producing parties to designate materials as “confidential” or “highly confidential,” restricting use to the litigation, and requiring sealed filing of references to highly confidential materials.
- The district court ordered the parties to participate in a nonbinding summary jury trial intended to facilitate settlement and ordered the proceeding closed to the public and press.
- The district court amended its order to restrict communications between mock jurors and the media/public until the case concluded and to seal the list of prospective and actual jurors until conclusion.
- Media entities (including The Cincinnati Post) moved to intervene for the limited purpose of challenging the closure, juror-communication restrictions, and sealing.
- The district court denied intervention, concluding there was no First Amendment right of access to summary jury trials or settlement techniques.
- The case settled shortly after the summary jury trial; the district court dismissed the action with prejudice while keeping the confidentiality/closure-related orders in effect.
- The press appealed.

## Issues

1. Whether the First Amendment right of public and press access applies to a nonbinding summary jury trial conducted as a settlement device in a civil case.
2. Whether the press may intervene to challenge closure, sealing, and related restrictions when no First Amendment access right attaches to the proceeding.

## Decision

- The Sixth Circuit affirmed the district court.
- The court held that the First Amendment right of access does not extend to summary jury trials used as confidential, settlement-oriented procedures.
- Because no First Amendment access right applied, the district court did not err in denying the press’s motion to intervene to challenge the closure and related orders.

## Legal Principles

- The First Amendment access inquiry turns on (1) whether the proceeding has historically been open to the public and (2) whether public access plays a significant positive role in the proceeding’s functioning.
- Nonbinding summary jury trials used to promote settlement lack a tradition of openness and do not operate like adjudicatory proceedings that culminate in binding judgments or involve the court’s coercive power.
- Confidentiality may be treated as necessary to the effectiveness of settlement-oriented procedures, and court sponsorship of such procedures does not, by itself, create a constitutional right of access.
- Where no First Amendment right of access applies, the press has no constitutional basis to compel opening the proceeding or modifying closure, sealing, or related restrictions through intervention.

## Conclusion

The Sixth Circuit treated the summary jury trial as a confidential, advisory settlement mechanism rather than an adjudicative trial and therefore rejected a First Amendment access claim, affirming denial of press intervention and upholding closure and related confidentiality orders.


Cincinnati Gas & Elec. Co. v. Gen. Elec. Co., 854 F.2d 900 (6th Cir. 1988)