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The Berkeley Daily Planet had the right to Wal-Mart’s sealed court documents, but an Alameda judge said the corporation deserves a free pass on fees � even though it abused the practice. Although Alameda County Superior Court Judge Ronald Sabraw found that Wal-Mart improperly filed reams of paperwork under seal, he scolded the Daily Planet and its lawyers for trying to recover the costs of fighting to unseal the information. The newspaper had a right to the improperly restricted documents, but in a scathing tentative ruling, Sabraw said it still has to swallow $76,000 in legal costs to fight it out in court. In the July 15 ruling, which lawyers in the case expect to stand, Sabraw wrote that the Daily Planet “has a private commercial interest in covering the underlying lawsuit in the newpaper [sic],” and should therefore pay its own way in seeking access. That notion has Daily Planet attorneys and open-courts advocates so furious that they don’t even know where to begin. “It’s stunning,” said M. Suzanne Murphy, a partner with Weinberg, Roger & Rosenfeld in Oakland � and a former sealed records-rule expert with the Judicial Council of California � who represented the Daily Planet. “I thought it was dripping with hostility to our client and the press and anyone who would dare to meddle.” Karl Olson, a partner at Levy, Ram & Olson who represents newspapers seeking access to public records, said he found Sabraw’s ruling to be particularly problematic in light of the trend toward more sealing of trial documents. “I thought it was troubling, in particular the point that talked about the newspaper’s financial stake in that kind of thing,” he said. “You need the availability of attorney fees under the private attorney general doctrine to encourage parties to step forward and vindicate these First Amendment rights,” added Olson, who has represented The Recorder. Sabraw disagreed. “[The statute] is intended to incentivize the pursuit of urgently important social goals by private parties,” he wrote, “not to shift costs of litigation to benefit every party who prevails in the vindication of a legal right. “In this case, it appears that the [ Daily Planet] was sufficiently motivated by its own interests to seek to unseal the documents and does not need [the] incentive of the prospect of a fee award,” Sabraw continued. John Nadolenco, a partner with Mayer, Brown, Rowe & Maw in Los Angeles who is defending Wal-Mart, referred questions to a company spokeswoman who said only that she hopes the tentative ruling will stand. While the $76,000 is a small amount of money for Wal-Mart, Murphy said, she worries that the ruling will encourage companies to try keeping all of their litigation out of the public eye. Compounding their frustration, according to Murphy and several newspaper advocates, is that Sabraw’s opinion is based on a misunderstanding of the newspaper business. “It’s absolutely wrong, so much as Judge Sabraw rests his denial on the idea that a newspaper, when it seeks records, is motivated primarily or even at all by a desire for profit,” said Peter Scheer, director of the California First Amendment Coalition, a newspaper advocacy group. “It almost never pays, particularly from a bottom-line standpoint,” he added, since if a newspaper does obtain the documents it’s seeking, “it gets them for all its competitors, too.” In the end, said Jessica Grant � a partner at The Furth Firm who represents plaintiffs in the employment class action against Wal-Mart � it comes down to a matter of principle. “Why should the media and the public have to hire lawyers to pay thousands of dollars in legal fees for documents that should have been public anyway?” she asked. Murphy said that if Sabraw finalizes his opinion, she plans to appeal. The case is Savaglio v. Wal-Mart, C-835687-7.

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