Thumbs up to federal District Judge Charles Breyer, who has come up with a brilliant—and hilarious—way to register displeasure with the practice of over-sealing documents and information in the official record of court cases.
Judge Breyer (whose brother is Supreme Court Justice Stephen Breyer) has presided for several years over a shareholders’ lawsuit against Hewlett-Packard concerning the company’s ill-fated acquisition of a British software company that turned out to be worth billions less than HP thought when it made the deal.
As in nearly all such cases, the parties’ legal skirmishing led to a negotiated settlement. In wrapping up the deal, lawyers for HP (as well as certain “objectors” to the settlement) filed multiple motions to place thousands of pages of documents under permanent seal–-even though most of the documents were already partially or completely redacted.
Judge Breyer’s answer to the requests to remove permanently from public view thousands of already-redacted pages was, appropriately, a resounding no. But here’s the cool part: The judge’s reasoning for denying the sealing motions is itself completely redacted. Like a declassified document extracted from FBI files, line after line of Judge Breyer’s July 28 order is blacked out.
Take a look. Scroll down to the second page of the four-page order . . .
[gview file=”https://firstamendmentcoalition.org/wp-content/uploads/2015/08/12-6003-sealed-order-re-motions-to-seal-final.pdf”]
Imagine the reaction of HP’s lawyers at New York law firm Wachtel Lipton upon learning of this order. The firm’s hallways likely echoed with the kind of indelicate language that the New York Times, in its glory days, referred to as “barnyard epithets.”
Judge Breyer regrettably is the exception among American trial court judges. Not only because he is a jurist with a sense of humor, but because he is a judge who takes seriously the settled legal rules, grounded in the first amendment, that strongly discourage the sealing of court records.
Over-sealing of records, particularly in commercial litigation, is epidemic in state and federal courts across the country. The reason is that secrecy is very often in the interest of both parties. When warring litigants, who disagree about nearly everything, join together in requesting secrecy, judges understandably are loathe to stand in the way. They forget that it is their job, as judges, to look out for the public’s interest in access and openness.
The other driver of over-sealing is the conviction, bordering on fetishism, among lawyers representing corporations that every bit and byte of information about their client, no matter how obvious, widely known, or inconsequential, must be sealed because it is so sensitive that disclosure will imperil the firm’s very existence.
Good judges, like Breyer, apply a healthy dose of skepticism to lawyers’ extravagant claims for secrecy. In fact, Breyer’s masterful order includes one (unredacted) footnote that instructs the lawyers on how to proceed if they want him to reconsider their sealing motion.
The footnote calls the lawyers’ bluff, saying, in effect: OK, show me immediately the content that you regard as absolutely the most damaging and super-sensitive of all the many records you want to seal; if those selected pages don’t obviously warrant permanent sealing, then forget about it.
This give-me-your-best-shot approach makes a lot of sense as a quick test of the legitimacy of secrecy claims. If lawyers can’t point to one or two specific documents that plainly qualify for protection, a court shouldn’t even entertain general arguments applicable to hundreds or thousands of records.
Other judges, hopefully, will follow Judge Breyer’s model.
—
Peter Scheer is executive director of FAC. The views expressed here do not necessarily reflect the views of the FAC Board of Directors.