Free Speech

"Once the Cat Is Out of the Bag, the Ball Game Is Over."

More than just a mixed metaphor -- it's a legal doctrine.

|The Volokh Conspiracy |

Several months ago, I quoted an opinion (U.S. v. Suppressed) that referred generally to such mixing of metaphors:

To the court's great regret, although the search warrant affidavit was at all relevant times subject to an order that should have guaranteed its protection under seal, … the subject affidavit was not at all times properly sealed. That its disclosure was the result of a docketing error that was corrected upon its discovery does not change the fact that the document was temporarily accessible to the public, and during that temporary period of accessibility the Sun-Times exploited the error and downloaded the affidavit. The Sun-Times has since published extensively on the affidavit's contents.

As the Tribune puts it in a collection of mixed metaphors, post-publication "the genie is out of the bottle," "the cat is out of the bag," and "the ball game is over." There is no step that this court can take post-publication of the search warrant affidavit's details to regain the secrecy of the publicly disseminated information.

But it turns out that the Second Circuit has expressly described the rule precisely this way, humorously but seriously, see Gambale v. Deutsche Bank AG (2d Cir. 2004):

[I]t was a serious abuse of discretion for the district court to refer to the magnitude of the settlement amount — theretofore confidential — in the Unsealing Order. But however confidential it may have been beforehand, subsequent to publication it was confidential no longer. It now resides on the highly accessible databases of Westlaw and Lexis and has apparently been disseminated prominently elsewhere. We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again. The genie is out of the bottle, albeit because of what we consider to be the district court's error. We have not the means to put the genie back.

[Footnote:] Once [information] is public, it necessarily remains public. As Judge Richard Owen, of the United States District Court for the Southern District of New York, once aptly reminded the author of this opinion while he was acting as counsel for a party at trial: "Once the cat is out of the bag, the ball game is over."

Unsurprisingly, other courts have picked up the phrase.

This principle doesn't always prevail; sometimes, courts do retroactively seal documents that had been erroneously disclosed, especially if the error is recognized quickly, the error wasn't the objecting party's own fault, and the document's contents haven't been prominently picked up by others. I've even seen courts retroactively seal published decisions, and ask (though they can't order) Westlaw, Lexis, Google Scholar, and the like to withdraw them; the decision may remain in print, but this way it becomes less likely to be found online. But the cat/ball game principle is at least a substantial thumb on the scale for many courts.

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  1. I look forward to the no-doubt upcoming opinion that creates a bright line test between the cat being let out of the bag and the singing of the fat lady.

    1. Well, I think the singing of the fat lady is indeed quite different. In the words of Zamber v. American Airlines, Inc., 2019 WL 2262914 (S.D. Fla. May 28),

      “It ain’t over till the fat lady sings” is a colloquialism which means that one cannot know the outcome of an ongoing situation even though the situation is — or appears to be — nearing what seems to be a conclusion.

      The cat being out of the bag is sufficient to produce a result (the end of the ball game): Once the cat is out of the bag, then the ball game is over. But the fat lady singing is necessary to produce the result — the ball game isn’t over until the fat lady sings.

      1. What about jurisdictions where a fat lady sings at the start of the game and a cat is let out of a bag after the game is over?

        1. What if the game’s name is “Let the cat out of the bag” or even “Keep the cat in the bag”?

      2. I’m not so sure.

        Can the opry continue after the fat lady sings? The saying suggests that the fat lady hasn’t yet sung, but, while it’s not 100% clear it at least hints that the singing will mark the end of the show.

      3. 50% of cats are female.

        Cat’s like to sing.

        If the cat in the bag is fat and female, there is no conflict.

      4. Professor Volokh,

        Suppose you’re right that fat-lady-sings jurisdictions have a lower bar than cat-out-if the-bag jurisdictions.

        Suppose a lawyer moves from a fat-lady-sings jurisdiction to a cat-out-of-the-bag jurisdiction.

        In order to make the higher bar, would he have to redo his finals?

        1. “Suppose a lawyer moves from a fat-lady-sings jurisdiction to a cat-out-of-the-bag jurisdiction.”

          To make such a move the lawyer would need a permission slip from Doctor Schrodinger and and essay on why the cat is both dead and alive at the same time until it’s released from the bag.

  2. It sounds cruel to put a cat in a bag – get them a special box if you need to take them on vacation or to the vet.

    1. Yeah, Schrodinger had a cat in a box too.

      1. Well, you could put your cat in a hat, or a pair of spats, but a box should come with a fox eating bagels and lox.

  3. Does the lawsuit get revived if we can predict whether the cat is alive or dead?

    1. Until it’s let out of the bag, the cat is both/neither alive and/nor dead.

  4. I’ve always tacitly assumed the fat lady’s singing to benecessary *and* sufficient for it to be over, else “before” would have been clearer than “till” (though admittedly longer and a bit off-tone; so perhaps the jury is still out:-))

  5. The expression “the cat is out of the bag” comes from the original “pig in a poke” scam. The con artist would place a cat in a sack and sell it as a pig in a sack (“poke” from the French “poque”, a small sack being a “poquette”, from whence “pocket”.) Of course, if the mark thought to open the sack before he bought it, he’d get an angry cat jumping out of it. So, “Once the cat is out of the bag, the [con] game is over,” is not a mixed metaphor, though, of course, “ball game” would make it one.

  6. It also seems that anything the court could do would be like closing the barn door after the horse has bolted.

    I was involved in a similar case. Documents filed under seal in a civil case ended up in the Chicago Tribune and eventually on the front page of the Wall Street Journal. The journalist invoked reporter’s privilege, and an extensive investigation by the Court’s Executive Committee required all of us to submit affidavits and some were interviewed. (There were five law firms and at least 15 attorneys on our side vs a Fortune 100 company). Turned out it was also a clerk’s error in placing them in the public docket. (Back then it was still paper.) It had been quickly corrected, but not before the reporter had gotten the document. The case was settled, and of course we had to destroy all the confidential discovery except the published documents. I keep a page from one framed in my office.

    1. closing the barn door after the horse has bolted

      A sort of post-bolt bolt.

  7. Along with a cat, the bag that ends this ballgame surely also contains a bell that can’t be unrung, doesn’t it?

  8. Regarding Schrödinger’s cat in particular, I’ve always wondered whether once the wave function has collapsed and you know whether he’s alive or dead, and you find that in fact he’s dead, can you swing him by the tail without hitting a lawyer?

    1. What happens if the wave function fails to collapse, do we end up with a zombie cat?

  9. Question: Does a sealed decision lose its precedent value?

    I’m thinking that future lawyers use those online sources to locate precedents to cite.

    If SCOTUS retroactively sealed one of its cases, would its future influence be wiped out? Instead of overturning Roe, they just seal it so nobody can claim to know what it said.

    What happens to the citations if a case is retroactively sealed after it has been cited?

    I’m sinking in a quagmire of absurdities over this sealing business.

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