Flickr Creative Commons photo by Simon Scott
Here is an example of a legal contract between two private actors: a famous person who cannot write a coherent sentence contracts with a professional ghost-writer to write a “life story” in collaboration with the famous person. The two agree to revenue sharing and, when a dispute arises, maybe one of the two might want to go to court while keeping the nature of the dispute secret.
There’s nothing wrong with that, is there? Putting aside the fact that the famous but illiterate people, if they had wise counsel, might have insisted, from the outset, to confidential binding private arbitration as the sole remedy in any dispute, let’s say someone goes to a state or federal court to fight it out.
To what extent should the courts respect the parties’ interest in confidentiality, even if it is shared and mutual? Remember: you and I and a few other tax-payers are footing the bill. Don’t we, the public, have a right to access to the dispute resolution forum that we are bankrolling? Isn’t our justice system built of sedimentary layers of earlier decisions and isn’t that that bedrock foundation weakened if cases are decided in secret?
This is yet another question that is much easier to ask than to answer and I will take a pass on trying to disentangle that knot.
Having said that, however, I think that U.S. District Judge Joan N. Ericksen makes a subtle and important distinction in a recent ruling as to whether certain information submitted in a public court proceeding is entitled to secrecy versus when public disclosure is warranted. “[T]he public has a right to access documents that are submitted to the Court and that form the basis for judicial decisions” (emphasis added). While courts might grant protective orders to keep secret the information exchanged in discovery, which, given the liberal leeway given to discovery in U.S. civil litigation, might be “unrelated, or only tangentially related, to the underlying cause of action,” if a court is actually relying on information for its decisions, it would seem appropriate that the public interest in that information should trump any privacy interest.
An aside: at what point does a sentence become so long that one can be nearly certain that most people will not be able to read it and, specifically, am I right to suggest that the immediately preceding sentence is essentially unreadable for the average reader? I think so. So, if you managed to get this far in this post, kudos and thank you. You might have reading skills and patience that exceed 99.9% of blog readers (or any readers).