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Appeals court orders documents unsealed

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NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Secret Courts   ·   March 19, 2007

NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Secret Courts   ·   March 19, 2007

Appeals court orders documents unsealed

  • A federal judge abused her discretion by sealing affidavits in the case of a company accused of killing union leaders in Colombia, an appeals court said.

March 19, 2007  ·   Statements and court filings in a lawsuit against a company accused of hiring paramilitaries to torture and kill union leaders at a Colombian coal mine should never have been sealed, a federal appeals court in Montgomery, Ala., (11th Cir.) ruled Wednesday.

The three-judge panel reversed a judge’s order sealing the affidavit of a former Colombian official who said he saw the head of the Colombian branch of a U.S. coal company hand a briefcase full of cash to a paramilitary leader in exchange for killing two union leaders. Union leaders and family members of the dead union leaders sued the company, Drummond Co., in Birmingham, Ala., in 2002.

The appeals court also ordered the release of the statement of a lawyer who interviewed the Colombian official and a legal filing submitted by the union’s attorneys.

Soon after the declarations and legal filing were sealed by the trial court at Drummond’s request, Stillman College journalism professor Stephen Jackson asked that they be made public, citing a common law right to access court filings.

U.S. District Judge Karon Bowdre denied the request. She also said the union’s attorneys had “gratuitously publicly file[d] an affidavit of a potential witness” and that there was “circumstantial evidence” they provided the affidavit to The Miami Herald, which printed an article about the official’s statement.

Despite the four attorneys’ protestations that they did not speak to the newspaper, Bowdre found them in contempt of court and fined them $500 while loosening the gag order so Drummond’s attorneys could comment on the allegations in the affidavit.

Both Jackson and the union’s attorneys appealed the decisions.

The appeals court threw out the contempt citations, noting there was insufficient evidence the attorneys talked to reporters and saying the gag order did not seem to prohibit filing affidavits in court.

The appeals court also said Bowdre abused her discretion by refusing to unseal the court papers, saying the judge and Drummond offered no good explanation for keeping them secret.

“The public has a right to access these documents that is more than powerful enough to overcome the negligible interest of Drummond in preventing public access,” Circuit Judge William Pryor wrote for the panel. “The reasons given for sealing the documents by the district court were conclusory and speculative, and sealing these documents was an exaggerated remedy for the harms the district court identified.”

Jackson’s attorney, Barry Ragsdale, said this case could reverse an ugly trend of oversealing in the federal circuit comprising Alabama, Florida and Georgia, following a 2001 decision in which the appeals court set a relatively low standard for those involved in a lawsuit to keep discovery materials from the press.

That decision, he said, made it “too easy for district courts to seal documents.” Until now, Ragsdale said, the appeals court has not had the opportunity to draw a distinction between the right to access discovery materials and the right to see other court filings.

“District courts seem to be a lot more open to the notion of sealing records, sealing documents in standard civil cases,” Ragsdale said. “I’m hoping this will make district courts pause, even if both parties agree” to the sealing.

Jackson, who also works as associate editor of the Web site LatinAmericanPost, hoped the ruling would spur more media coverage of the case, which has been marked by excessive court secrecy.

“People need to know what this is all about, and the media needs to research this,” he said. “Now they can.”

(Romero v. Drummond Co., Media Counsel: Barry Ragsdale, Ivey & Ragsdale, Birmingham, Ala.)RG

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