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Groklaw's Eyewitnesses Report on the G2 Intervention/Unseal Hearing
Tuesday, April 26 2005 @ 07:35 PM EDT

Frank Sorenson and Chris Brown were both at the hearing today on G2 et al's motion to intervene and motion to unseal. Chris tells me he feels it looks bleak for G2. Reading their reports, I'd say he is probably right, because their main beef was that Maureen filed a report about the December hearing that Groklaw's eyewitnesses disagreed with, and she got a lot of negative comments about it.

But the simple remedy is obvious: she can attend the hearings and file eyewitness reports about what she actually sees and hears. Problem solved. The hearings are all open to the public.

Judge Kimball pointed out he hasn't sealed a thing, and IBM argued that anyone is allowed to attend the hearings, so how can you argue the public has no access? Could there be a more public litigation? SCO, I gather, agreed with IBM's position, which was that the parties can challenge the other side's designation of confidentiality, if needed. SCO did add a gratuitous dig about IBM that I don't understand, because if they wish, they are free to challenge anything IBM seals. They seemed to want to have all Project Monterey materials unsealed. They do, do, do want that email they shouldn't have read aloud at the December hearing made public, do they not? G2 is their support on that, and repeatedly asked only for filed documents, not all documents exchanged in discovery. Excuse me if my cynical side views it that SCO and their buddy G2 would like to out IBM in public, so the email can be known, while protecting SCO's sealed documents. Sounds fair to them.

Because Andrew Stone, G2's lawyer, is new to us, you might like to read his bio. Here is Frank's report:


The hearing lasted about 45 minutes.

IBM was represented by Amy Sorenson and Todd Shaughnessy (Amy Sorenson spoke)

SCO was represented by Brent Hatch and Ryan Tibbitts (Hatch Spoke)

G2, Forbes, & Cnet were represented by Andrew Stone

First off, Stone was _very_ difficult to hear and understand. He spoke quickly and quietly, and did not enunciate. There were times we just couldn't hear what he was talking about, let alone what he actually said.

Kimball said that he had read everything and was familiar with it.

Andrew Stone: His clients are all media entities.

Kimball [paraphrasing]: I know what you want. You want _in_, and to see everything.

Stone: Every time my clients report on this case, they receive a blizzard of emails and responses [indicating the public's interest]

Stone: One of my clients reported on a hearing in October, and online community attacked the story, disputing what happened. The transcript was sealed, so we can't show what really happened.

Stone: The Protective Order allows parties to unilaterally claim confidentiality

Stone: There is intense public focus from the online community. The Court's ultimate opinion will rely on source documents. Having those available will help the public understand the decision.

Kimball: He hasn't relied on any confidential materials in any of his decisions yet, so this hasn't been a problem yet.

Stone: We need to change the role of my client and become parties to the protective order due to our common law right of access.

Stone: Speaks about the "10th Circuit Test" for balancing whether documents really should be sealed/confidential. At this point, we really can't argue whether the balance is appropriate because we haven't seen them yet.

Stone: There are fewer than 50 sealed documents filed so far. We only request access to the filed documents (not all discovery).

Stone: IBM has cited rulings that there is no right of access to discovery disputes. This takes a very narrow view. We want the parties to state the basis for confidentiality of all currently sealed docs.

Kimball: asked who would like to go first

Amy Sorenson: We're ready

Sorenson: G2 cannot credibly claim this lawsuit has been a closed case. ~ He acknowledged it's listed as a "High Profile Case" on the court's webpage, and the hearings have been open to the public.

Sorenson: Three reasons justify denial.

~ 1 - Conduct of the parties in this case has been in following with the Protective Order, and they've tried to make things available and only redact or seal when absolutely necessary

~ 2 - G2's First Amendment argument is not supported by a Supreme Court ruling

~ 3 - Their recommended method for unsealing is not reasonable or feasible. Too time-consuming to examine everything.

Sorenson: Protective Orders are commonly entered into and withheld. Both parties have adhered to it, and have attempted limited redaction and made things available whenever possible.

Sorenson: IBM recently (in the last week) proposed to SCO that the remaining memoranda under seal be released. They're in discussions. [note: she talked about the memoranda, not sealed exhibits, etc.]

Sorenson: The common-law right of access has already been addressed. Quotes from the "Nixon Court" [1979?] where access has been denied to the public in the past. Supreme Court has indicated that such decisions are best left up to the trial court. Confidentiality portion of the Protective Order tracks along with the guidelines.

Sorenson: Quotes a Chicago Tribune case where material filed in discovery is not subject to the common law right of access

Sorenson: Quotes from a [something unpronouncable] v. Davis case. Speaks of a difference between the core judicial process (dispositive motions) and other motions, etc.

Sorenson: The PSJ motions have been denied without prejudice, so the materials submitted for those haven't been relied upon for any judgments.

Sorenson: With respect to their 1st Amendment argument regarding the role of public access in civil trials, there has been no Supreme Court ruling that such a right exists. They rely on a 10th Circuit decision that states such a right "may exist."

Sorenson: If The Court is interested in entertaining the Constitutional discussion, The Court should also look to a ruling from (now-Justice) Scalia in the DC Circuit [re: role of public access in civil trials?]

Sorenson: Regarding G2 becoming a party to the Protective Order, only The Court can decide whether seal is appropriate. G2 is a third-party and doesn't have access and can't do analysis.

Sorenson: This lawsuit is in no way closed to the public.

Sorenson: G2's Motion should be denied.

Brent Hatch: We have properly designated documents as confidential. Stone's argument about right of access does not apply.

Hatch: Talks a bit about how, on the other hand, "Just because IBM says something is confidential, it's so" is debatable, and something the Court may wish to address some time.

Stone: We have no dispute over legitimately confidential documents. Our concern is that the parties can unilaterally designate as confidential.

Stone: The Scalia decision is 20 years old.

Stone: Our concern is about the process, and having an advocate. If it's appropriately sealed, we're happy.

Kimball: Will take it all under advisement.

Chris's report:

Brent Hatch passed around a photocopy of an article in the Logan, Utah "The Herald Journal" with the attention getting headline "SCO Group Asks to Oust IBM CEO". I cannot find the article on-line at their website.

IBM's Attorneys: Todd Shawnessy and Amy Sorenson (arguing)

SCO's Attorneys: Brent Hatch (arguing) and Ryan Tibbitts.

G2's Attorney: Andrew Stone

Andrew Stone spoke first. He spoke exceptionally quietly so it was difficult to make out all he said. He started out by bringing up last October's hearing before Judge Wells. He said reference was made to emails which were partly read in open court. He said one of their clients reported on this and it was disputed by an online community. He said the hearing's transcript was sealed and that it raised questions in their minds about why documents were sealed.

Judge Kimball said "I have not sealed anything."

Again, I couldn't hear a lot of what Mr. Stone said.

He said their is a need for public accepiance of decisions based on public's interest in the case. He said many companies make their decisions based on their knowledge of this case. He spoke of "Monday Morning Quarterbacking". He said he'd attended last Thursday's hearing and noted that attorney's for both sides based their arguments on public policy issues (relating to the deposition of a Fortune 100 company's CEO).

In reference to the emails and other sealed documents he said the "public is forced to rely on caracterizations of documents made by one side or the other."

"Materials that are part of public record should be available to the public."

He said that the public has a right to understand, and have access to, the documents that the court used to make its judgments.

He proposed that they become parties to the protective order and that they "only look at filed documents, not documents not filed with the court." He said there are fewer than 50 sealed documents in this case. He said there is a common law right of access to documents filed with the court.

He stressed that they want access to all documents and transcripts in the case, but only those filed with the court, not the hundreds of thousands of documents produced in discovery.

Amy Sorensen argued for IBM. She said G2 cannot credibly claim this lawsuit has been closed to the public. She told of the many documents that have been filed with the court, and that several documents that contained quotes from confidential information IBM had also filed a minimally redacted version with the court as well.

She said she had three main points,

1. The conduct of the parties entering the protective order has been entirely proper. She again cited the redacted versions of documents filed.

2. G2's arguments are not supported by case law.

3. The proposal is unneccessary, unsupported, and there is no need to arbitrate.

She said both parties to the lawsuit can challenge the confidentiality of documents at any time.

She said the parties have tried to make as much as possible public with limited redactions of quotations of confidential information.

G2's "common law access" either doesn't exist, or has been addressed already by the parties conduct.

She cited a number of cases where the judges had supported the public access to documents filed in civil cases were limited. Especially where their disclosure could be used to slander, libel, or gain competitive advantage.

G2 had contended that a First Amendment right exists to the documents. Amy said no such First Amendment right exists. Quoted Justice Scalia (about 20 yrs ago, while he was on the DC Circuit Court) about application of a Logic and Experience test.

Amy argued that should G2 have access to the documents, they can provide no assistance to the court in determining whether a document was appriately sealed. That that is the discresion of the Judge.

Brent Hatch spoke for SCO. He said he entirely agrees with Mrs. Sorenson, except with the application in this case. He said that Monterey documents, a project that has been dead for 5 years, have all been filed under seal and that he doesn't see why.

Mr. Stone replied that he has not problem with genuinly confidential material, but that he does have a problem with documents that have been unilaterally classed as confidential.

He reiterated that they do not seek access to the mountains of material exchanged in discovery, only those submitted to the court.

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