Free Speech

Court Rejects Columbus Dispatch's Argument in Favor of Sealing

Newspapers often argue against the sealing of court records; here the newspaper argued in favor.

|The Volokh Conspiracy |

From Magistrate Judge Kimberly A. Jolson's opinion yesterday in Ewalt v. Gatehouse Media Ohio Holding II, Inc. (S.D. Ohio):

This case concerns Defendants' alleged deceptive trade practices that damaged subscribers to the Columbus Dispatch. According to Plaintiffs, "the GateHouse Defendants advertise and offer term subscriptions to The Dispatch … for specific prices, and their customers enter into these agreements … reasonably expecting that the GateHouse Defendants will provide The Dispatch for the number of weeks stated in those Subscription Agreements." Instead, Plaintiffs allege, "the GateHouse Defendants reduce their customers' term subscriptions by sending their customers unsolicited 'premium editions' and decreasing the length of those subscriptions based on the value the GateHouse Defendants arbitrarily assign to these premium editions." …

The parties' dispute concerns a series of Defendants' internal emails and Plaintiffs' use of those emails in their Opposition. Defendants contend that portions of Plaintiffs' Opposition and Exhibit C containing those emails should be redacted because they contain trade secrets…. Generally, [the e-mails] discuss the number of premium editions to be issued, the price of those premium editions, Dispatch subscribers' frustration with the premium-edition policy, and Dispatch employees' opinions regarding the same….

[But, first,] Defendants have not demonstrated that the specific information they seek to redact from Plaintiffs' Opposition is, in fact, a trade secret…. [And, second,] Defendants are required to show that "disclosure will work a clearly defined and serious injury … And in delineating the injury to be prevented, specificity is essential." General representations of some potential undefined harm, like those made by Defendants, are insufficient to justify redacting the information in question.

Ultimately, "[o]nly the most compelling reasons can justify non-disclosure of judicial records." Even "[w]here a party can show a compelling reason for sealing, the party must [still] show why those reasons outweigh the public interest in access to those records and that the seal is narrowly tailored to serve that reason." "[I]n class actions—where by definition some members of the public are also parties to the case—the standards for denying public access to the record should be applied…with particular strictness."

Defendants have not demonstrated that the information contained in Plaintiffs' Opposition is a trade secret. And, because this is a purported class action concerning central Ohio's primary newspaper, the public has at least a moderate interest in viewing the information in question. The relevant portion of Plaintiffs' Opposition contains information regarding the Dispatch's subscription policies and Dispatch employees' opinions regarding the same. On the record before the Court, there is no reason for the Court to prevent the public from viewing that information….

The public has a right to know ….

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  1. Prof. V: Sometimes the “public interest” in judicial proceedings seems (to us uninvolved individuals) a bit abstract, so thank you for highlighting this case, which makes that public interest clear, and the potential damage from non-disclosure obvious.

    1. How do you balance it when to make it’s case, the plaintiff needs to reveal defendants’ trade secrets? Trade secrets only retain legal status if the owner acts at all times to preserve the secrecy.

  2. “Defendants have not demonstrated that the specific information they seek to redact from Plaintiffs’ Opposition is, in fact, a trade secret”

    If it isn’t secret, then Defendants win on the merits.

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