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Court records sought by the media that include information about Bridgestone/Firestone Inc. tires will remain under seal, a federal appellate panel has ruled. The three-judge panel at the 11th U.S. Circuit Court of Appeals in Atlanta on Tuesday vacated a September 2000 ruling by U.S. District Judge Anthony A. Alaimo that would have opened the records in a South Georgia wrongful death suit to the news media. The appellate judges said Alaimo had erred in his consideration of the case. The panel did not foreclose permanently media access to the files, which may contain information about Bridgestone/Firestone tires that were the subject of a massive recall last year. The appellate ruling did instruct Alaimo to review the case — and the sealed files — to determine whether “good cause” exists to maintain the documents under seal. But the appellate judges — Susan H. Black and Senior Judges Emmett R. Cox and Paul H. Roney — made it clear in their per curiam order that the media’s common-law right to inspect and copy judicial records in a civil case is not open-ended. In a separate, concurring opinion, Black stated, “The purpose of discovery is to resolve legal disputes between parties, not to provide newsworthy material.” Firestone attorney Lisa Godby Wood of the Brunswick, Ga., firm Gilbert, Harrell, Gilbert, Sumerford, Martin & Gregg said she’s “very pleased” with the ruling. “The 11th Circuit adopted the standard we urged,” she says. “We had asserted that he [Alaimo] had set too high a standard [for sealing the records], and the 11th Circuit agreed.” Attorney Robert L. Rothman of Arnall Golden Gregory, who argued the case before the appellate panel on behalf of The Chicago Tribune and Los Angeles Times Communications, says he was “obviously disappointed that the district court’s opinion was vacated and remanded.” His media clients, he says, are considering their options as to what, if anything, they will do next. PUBLIC ACCESS CITED Media attorney Peter C. Canfield, a partner with Dow, Lohnes & Albertson, says the appellate panel’s ruling affects not only the news media but also general public access to the litigation process. “There is something ironic about corporations being able to take advantage of the best justice system in the world, one paid for at considerable expense by the taxpayers of this country, and then to claim that what happens in it short of a trial is a private matter and no one’s business.” Black’s opinion takes the approach that “unless there’s a trial, the public essentially has no business concerning itself with what goes on in a court case. That’s a very novel proposition,” Canfield says. The dispute “is not about access to the discovery process. It is about records obtained during the discovery process and filed with the court … and whether they should continue to be sealed,” Canfield says. “The courts have consistently held that once a record is filed with the court, it’s no longer just a discovery record. It becomes a record that is presumptively open to the public. What is novel about this decision is that it treats that distinction as essentially having no importance.” Canfield joined in a friend-of-the-court brief that included The Atlanta Journal-Constitution, The New York Times, The Associated Press, The Reporters Committee for Freedom of the Press, the Georgia Press Association and the Georgia First Amendment Foundation. RECORDS ORDERED UNSEALED Alaimo ordered court records in the Brunswick civil case unsealed last year after news media outlets argued there was a strong public interest in any case involving a death attributed to allegedly faulty Bridgestone/Firestone tires. The court records were sealed during litigation that followed the 1997 crash of a Ford Explorer on I-95 in southeast Georgia. The crash killed Daniel Paul Van Etten, a 19-year-old freshman who played football for the University of West Virginia. The accident occurred after the tread of the Explorer’s left rear tire — a Bridgestone/Firestone radial ATX — peeled away. The ATX was among 6.5 million tires that Bridgestone/Firestone recalled last year. The case was settled confidentially in 1998, and records concerning the tires’ production and design remained under a protective order as a condition of the settlement. After the media sought access, Firestone attorneys argued that the sealed records contained company trade secrets and so were not subject to public inspection. PANEL: BAR SET TOO HIGH In its ruling, the federal appellate panel said Alaimo set the bar for sealing the records far too high. Instead, the panel said, he should have used a “good cause” standard that balances the media’s right of access against Firestone’s interest in keeping the information confidential. Public disclosure of documents obtained during civil discovery “is subject to the discretion of the trial court,” the appellate opinion stated. Rather than assuming that documents filed with the court should, as a general rule, be available to the public, “We think a more refined approach is called for.” “The better rule is that material filed with discovery motions is not subject to the common-law right of access, whereas discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right and we so hold,” the judges continued. “This means that the Firestone documents filed in connection with motions to compel discovery are not subject to the common-law right of access.” Firestone’s ability to argue successfully that there is good cause to keep the records under seal “remains to be determined,” the opinion stated. In remanding the case to Alaimo, the appellate panel instructed him to revisit the question of whether the documents in contention contain corporate trade secrets. If the district judge concludes that Firestone’s documents do not contain trade secrets, “good cause does not support the protective order, and the documents may be unsealed.” In fact, Alaimo did address that issue in his order to unseal the documents, saying that even if trade secrets were included in the sealed documents, “concerns of public health and safety trump any right to shield such material from public scrutiny.” But Alaimo included no factual findings to support that conclusion or to “trump Firestone’s interest in keeping trade secret information confidential,” the appellate ruling concluded. Eleventh Circuit Judge Black went even further in her own opinion, calling discovery, whether criminal or civil, “essentially a private process,” the sole purpose of which is to prepare for trial. “If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe,” she wrote. Nor should the media be allowed to challenge every document included in a blanket protection order, she said. “A document-by-document approach would not only burden the trial court, but, more importantly, it would interfere with the free flow of information [among parties] during discovery.” Even though the Georgia Bridgestone/Firestone case was settled three years ago and “the press is not disrupting an active discovery proceeding,” Black said that the flow of information among attorneys litigating any civil case would cease if any protective order agreed to by both sides “could be subject to document-by-document, post-judgment attacks.”

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