NEWS MEDIA UPDATE · NINTH CIRCUIT · Secret Courts · Feb. 23, 2007
Documents to remain sealed in case against AT&T
Feb. 23, 2007 · A federal judge in San Francisco has denied the request of members of the media to unseal documents in the Electronic Frontier Foundation’s class action lawsuit against AT&T.
In the lawsuit, the Electronic Frontier Foundation (EFF) is accusing AT&T of collaborating with the National Security Agency in its terrorism-related wiretapping program.
The sealed documents that both EFF and the media want unsealed are a declaration by Mark Klein, a retired AT&T telecommunications technician; several internal AT&T documents; and portions of the declaration from EFF’s expert witness. Some of the evidence has been released in redacted form, but some is still completely under seal.
In May, the San Francisco Chronicle, Los Angeles Times, The Associated Press, San Jose Mercury News, Bloomberg News, and USA Today moved to intervene in the lawsuit and unseal the documents.
The judge held a hearing on the motion in December and issued the order Tuesday.
U.S. District Judge Vaughn Walker granted the media entities’ motions to intervene but denied their motions to unseal the documents.
AT&T opposed the intervention of the media, arguing that EFF and the American Civil Liberties Union, which has filed a friend-of-the-court brief on behalf of EFF and filed a separate lawsuit against the National Security Agency over the wiretapping program, adequately represented the media entities’ interest in unsealing the documents. The court disagreed, noting that courts routinely permit the media to intervene for the purpose of unsealing judicial records.
AT&T’s position is that the documents should not be unsealed because they contain AT&T trade secrets. Documents containing trade secrets are often sealed during the litigation process.
The judge noted that there is a strong presumption in favor of public access to court records, and that overcoming this presumption requires a showing of compelling reasons for denying access.
However, the judge added that “the public’s right of access has its limits; indeed, a presumption of access does not extend to ‘sealed discovery documents attached to non-dispositive motions.'”
The documents in question were attached to a plaintiffs’ motion for preliminary injunction. Thus, the judge addressed the issue of whether a motion for a preliminary injunction constitutes a dispositive motion.
The court concluded that this preliminary injunction motion is not dispositive because “it neither resolves a case on the merits nor serves as a substitute for trial.”
Thus, the public’s right of access is not presumed and the media entities must present “sufficiently compelling reasons” why the court should unseal the documents.
The judge reasoned that the fact that the parties had already released redacted versions of the documents partially vindicated the media’s interests.
“We’re disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&T’s weak trade secrecy claims,” Cindy Cohn, EFF’s legal director, said in a statement. “Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves.”
In his order, the judge wrote that the court may revisit this issue at a later point in the litigation.
(In re National Security Agency Telecommunications Records Litigation, Media Counsel: Karl Olson, Levy, Ram & Olson, San Francisco) — CS