From the Spring 2000 issue of The News Media & The Law, page 25.
A fatal construction accident sparked an unusual, and ultimately unsuccessful, battle in which a newspaper attempted to gain access under the state open records laws to documents prepared as part of a civil lawsuit. The state Supreme Court, however, ruled in February that depositions and other trial documents are not public until after they have been filed in court.
The Milwaukee Journal Sentinel had sought access to depositions of and documents from the builders of a new baseball stadium who were being sued by the families of three construction workers killed when a crane collapsed while moving portions of the stadium’s new roof in July 1999.
With a mast extending 567 feet in the sky, the “Big Blue” crane being used to construct Miller Park baseball stadium was taller than all but one building in Milwaukee and taller than any other crane in the United States. But in a matter of seconds, the structure was reduced to little more than a pile of twisted metal.
The giant crane collapsed July 14, 1999, while lifting a 400-ton roof section into place. The accident killed three iron workers who were being transported inside a bucket by another crane, caused $100 million in damage and delayed the stadium’s opening by a year. In August families of the three men filed wrongful death suits in state court in Milwaukee against the construction firms building the stadium, including Mitsubishi Heavy Industries, which was building that stadium’s retractable roof.
In early October, Mitsubishi won a series of gag orders from the court to keep secret the testimony of its employees and other witnesses and to prevent them from discussing what happened the day of the accident.
The Milwaukee Journal Sentinel then filed a motion to intervene, claiming it had a right under the state’s public records law to access the depositions and other pre-trial discovery materials being produced by the parties.
The newspaper argued that the discovery materials were public because public tax dollars were paying for the $400 million stadium and a public board was overseeing its construction and operation once it was completed. Mitsubishi claimed that the transcripts of depositions and other discovery materials contain prejudicial and inaccurate information that should be kept secret. Attorneys for the families did not challenge the newspaper’s motion to intervene.
The court in late October granted the newspaper’s motion, ruling that discovery materials are part of the court record and, therefore, public documents the newspaper may obtain. The court also lifted the gag order against most witnesses, although it left in place the orders concerning the testimony of five Mitsubishi employees. However, the court said those gag orders would be lifted and deposition transcripts for those witnesses would be made public 30 days after they were taken — unless Mitsubishi could show the court good cause why they should be kept secret.
Mitsubishi challenged the ruling before an appeals court in Milwaukee in November, arguing that the newspaper had no right to intervene and obtain access to the pre-trial discovery materials.
The appeals court questioned whether the newspaper should have been allowed to intervene, but ruled the lower court had not abused its discretion by allowing the newspaper to intervene. The appeals court also rejected Mitsubishi’s argument that discovery materials could not be made public until they were filed, calling it an “interesting legal theory” not supported by any case law or statute.
Mitsubishi appealed to the Supreme Court in Madison, arguing that the newspaper should not have been allowed to intervene in the case for the sole purpose of accessing documents prepared by parties to civil litigation. The newspaper contended that because of the tremendous public interest in this case that it had a right to access documents as they were created by the litigants under the open records law and the First Amendment to the U.S. Constitution.
The Supreme Court reversed, holding that pre-trial discovery materials are not judicial records made public by the open records law. The court found that no common law or First Amendment right of access applied to documents created by parties to a civil law suit that have not yet been filed in court.
“There are no allegations that public funds are in jeopardy in this lawsuit. The underlying case is a tort action brought by private plaintiffs against a corporate entity; public issues and concerns are not in dispute,” the court said in its Feb. 23 opinion. “The fact that this case arose from an accident at a public works project and has generated a great deal of publicity is not enough to transform this into the type of public controversy in which all documents are imbued with ‘public record’ status.”
The Supreme Court instead looked to the procedural rules governing all civil lawsuits. The newspaper, unlike the families of three ironworkers who were suing the construction companies, was not a party to the case. Only parties to a case, the Supreme Court said, are allowed to obtain pre-trial information from each other.
“As long as these materials remain in the possession of the parties and have not yet been filed or even used in court, they remain the private, personal property of the litigants to which neither the media nor the public have a common law right of access,” the court said.
Although concurring with the judgment, Chief Justice Shirley Abrahamson suggested that nothing in the court’s opinion or the rules for civil procedure precluded the newspaper from obtaining a court order that requires the parties to file all discovery materials.