Court keeps discovery documents under seal despite rebuke
OHIO–Federal trial court judge John Feikens, who last September gagged Business Week magazine from printing an article based on sealed documents, continues to enforce a protective order despite an early March ruling by the federal Court of Appeals in Cincinnati (6th Cir.) critical of the judge’s actions.
In a mid-April order, Judge Feikens held that the original January 17, 1995 protective order “remains in full force.” Judge Feikens stated in a telephone conference with Bankers Trust and Procter & Gamble that “I am taking the position that as between Procter & Gamble and Bankers Trust, there is nothing in the Business Week decision that changes the agreement that you each had to put documents under seal.”
According to the judge, modification of the protective order would require a motion by one of the parties, despite the appellate court’s ruling.
The appellate court noted in its March decision that the prohibition placed on Business Week was “the classic case of prior restraint.” The appeals court also invalidated Judge Feikens’ ruling permitting litigants Procter & Gamble and Bankers Trust to seal documents without judicial review.
A concurring judge from the appellate court noted that the idea that protective orders could be instituted or amended merely upon stipulation of the parties, without judicial approval, is “ludicrous.”
Since the appeals court ruling, more than one dozen documents have been sealed.
Bankers Trust meanwhile has filed a petition for review by the full court of the appellate panel’s early March decision. Bankers Trust argued that the issue was moot because Judge Feikens had already unsealed the contested documents. The financial institution alleges that the panel misapplied the mootness exception which permits appeal of a dispute if is “capable of repetition, yet evading review.” (Procter & Gamble v. Bankers Trust; Media Counsel: Victor A. Kovner, New York)