Lawyer who released texts to paper faces possible contempt

An attorney who opposes an Ohio city prosecutor accused of racial discrimination is facing possible contempt charges after he released text messages involved in the lawsuit to two local newspaper reporters.

The attorney, Scott Cochran, and his client, the Islamic Society of Greater Youngstown, are accused of releasing the documents in violation of a court order requiring that any personal information contained in the records be redacted before their public release.

U.S. District Judge Christopher Boyko ruled last week that court records in assistant city prosecutor Bassil Ally’s lawsuit against the city of Youngstown, Ohio, and City Prosecutor Jay Macejko should not have been publicly disseminated until they had been properly redacted. Ally’s suit, alleging discrimination based on his Muslim faith, was dismissed earlier this year after the parties reached a settlement, according to court documents.

During the proceeding, Boyko allowed certain documents containing confidential information to remain sealed from public view. Earlier this month, the Islamic Society moved to intervene in the closed case to ask Boyko to unseal these materials, which included deposition transcripts, transcripts of text messages and transcripts and audio recordings of Macejko. The group also asked the judge to modify an earlier-entered order that restricted the parties’ ability to disseminate materials exchanged in discovery.

Recognizing the “public’s right to review records of public entities including Court records” and noting that neither party objected to the Islamic Society’s motion, Boyko ordered the documents unsealed with redactions to protect the “strong privacy interests concerning certain personal information of parties and nonparties.”

“Therefore, before the Court permits the dissemination of materials subject to the protective order or unseals the remaining sealed documents, the parties are ordered to review the materials submitted under seal and shall redact all information that is prohibited by federal and state law or the Court’s local rules from disclosure,” including documents that contain addresses and social security, personal identification and financial account numbers and materials that reflect medical records, treatment or diagnosis, Boyko said in his Feb. 13 order, which required the parties to make these redactions and submit the documents to the court for unsealing by Feb. 22.

Forty-five minutes after the court issued its order, however, the Islamic Society and Cochran sent copies of text messages to reporters at the Youngstown Vindicator, the city’s attorney alleged in its motion asking that the group and Cochran be held in contempt of court for violating Boyko’s Feb. 13 order. Some of the messages, claiming to be from Macejko to an assistant city prosecutor, contained derogatory statements about President Obama and Ally. They also included information about medical procedures, names of family members, discussions of minor children and other “non-relevant and personal materials” that were subject to the court’s protective order, the motion argues.

The messages became a hotbed of controversy in the pending race for prosecutor of Mahoning County, the seat of which is Youngstown. Cochran supports the 15-year incumbent, whom Macejko, who presides over the city's prosecutor's office, is trying to unseat.

Three days after the order and its public release of the text messages, the Islamic Society asked Boyko to clarify his ruling, noting that the organization believed that only those records filed under seal, and not materials exchanged by the parties during discovery, were subject to the requirement that they be redacted and submitted to the court before they could be disseminated to third parties.

Boyko denied this request, stating “it is clear from the Court’s Order that no materials whether sealed or subject to the protective order should have been disseminated until the parties had filed with the Court the ordered certifications and redactions. Furthermore, the time to seek clarification was before dissemination, not after.”

The judge gave attorneys in the case until Wednesday, Feb. 29 to file oppositions to the city’s request that the Islamic Society and Cochran be held in contempt. The court will then decide whether to hold a hearing on that request.

Related Reporters Committee resources:
· First Amendment Handbook (Civil courts)
· Digital Journalist's Legal Guide (Discovery and protective orders)