## Facts

- The United States sued the Town of Moreau under CERCLA after an aquifer beneath a municipal landfill became contaminated by industrial waste generated by General Electric.
- The State of New York intervened, and the litigation continued for years while the parties pursued settlement.
- To facilitate settlement discussions, the district court entered a confidentiality consent order covering draft settlement agreements and related materials, including engineering and financial reports, attorney work product, and counsel correspondence prepared for settlement negotiations.
- The consent order also permitted public discussion of the settlement process and limited information so the public and media could be kept informed about developments.
- A newspaper and one of its reporters moved to intervene for the limited purpose of challenging and vacating the confidentiality order to obtain access to settlement materials.
- The district court denied intervention as futile, concluding there was no right of access to the sealed settlement-negotiation materials.

## Issues

1. Whether the district court abused its discretion by denying the press’s motion to intervene to challenge the confidentiality order on the ground that intervention would be futile.
2. Whether the First Amendment provides a right of access to settlement negotiations and related settlement materials in ongoing federal civil litigation.
3. Whether the common law presumption of access applies because the settlement-related drafts, reports, and correspondence qualify as “judicial documents.”

## Decision

- The Second Circuit affirmed the order denying intervention.
- The court held there is no First Amendment right of access to settlement negotiations or documents generated for settlement discussions in ongoing litigation.
- The court held the common law presumption of access did not attach because the materials covered by the order were not “judicial documents” relevant to the exercise of Article III judicial power.
- Because no cognizable access right existed that could support vacatur of the confidentiality order, the district court did not abuse its discretion in finding intervention futile.

## Legal Principles

- Denial of a motion to intervene for the purpose of challenging a confidentiality or sealing order may be upheld where the challenge would be futile as a matter of law.
- The First Amendment right of access applies only where history and functional considerations support openness; settlement negotiations and associated materials do not satisfy that test.
- The common law presumption of public access generally applies to “judicial documents,” meaning materials relevant to judicial decisionmaking; documents created solely to facilitate settlement and not submitted for adjudicative action ordinarily fall outside that category.
- Strong public interest in the subject matter of litigation, including environmental cleanup involving government entities, does not itself create a constitutional or common law right to inspect confidential settlement negotiations.

## Conclusion

The Second Circuit affirmed denial of media intervention because the press had neither a First Amendment nor common law right to access confidential settlement negotiations and related settlement materials, making any attempt to vacate the confidentiality order legally futile.


United States v. Glens Falls Newspapers, Inc., 160 F.3d 853 (2d Cir. 1998)