Recent readers of Minnesota Litigator will recognize the case name above, a case we have highlighted for lessons in how NOT to do civil litigation. Specifically, it seems to us that the case has gone very badly for Defendant Procura and the ways it has defended the case against it have not seemed particularly clever (an indefensible defense, one might say).

This week, U.S. Magistrate Judge Hildy Bowbeer issued a Report and Recommendation (“R&R”) on a motion for sanctions against Procura. To our disappointment, however, Judge Bowbeer issued her R&R under seal (that is, denying public access).

But there are some pretty strong signs that the order is unfavorable for Procura. Specifically, it appears that Judge Bowbeer issued the R&R under seal to give the litigants a chance to propose redactions or a confidentiality designation. Adversaries Prairie Home and Salo Solutions wasted no time in notifying the Court that they are perfectly happy with full public disclosure of the R&R…(see here and here). So far, Procura has not weighed in.

We look forward to the unsealing of the R&R and hope that it is completely unsealed.

Court records are presumptively public. We make exceptions for issues of national security, to protect crime victims, to protect children, to protect litigants when publication of the underlying private facts present a high risk of stigma or trauma. But “mere embarrassment or a desire to avoid the potential criticism attendant to litigation will not suffice.” What have we here? Stay tuned…

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