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A federal judge who presided over the copyright case between CBS and the family of Martin Luther King Jr. has ordered the deposition of King’s son, Dexter Scott King, sealed for five years. U.S. Senior District Judge William C. O’Kelley issued a similar order for the deposition of the King estate’s general manager, Phillip Jones. The depositions are included in federal case files of the now-settled King v. CBS, No. 1:96-cv-3052 (N.D. Ga. Feb. 15, 2002). The depositions include information about a 1996 book contract deal involving the King estate, Intellectual Properties Management (which is chaired by Jones, who administers the estate’s intellectual property), and Time Warner Inc., according to the court order. It also includes unspecified information that Dexter King feared would be leaked to the media, according to O’Kelley’s order. In the court order, O’Kelley also ordered that the King v. CBS case files be preserved as part of the government’s permanent archive rather than earmarked for destruction in 20 years with other “non-historical” court records. And he suggested that “an investigation into the federal judiciary’s document management and disposition procedures is warranted.” In 1998, O’Kelley tossed out the Kings’ suit, ruling that Dr. King’s “I Have a Dream” speech at the Lincoln Memorial was not subject to federal copyright laws. But two years later, a federal appellate panel reinstated the case with an opinion that said CBS had not proven that King had relinquished the copyright. The case was settled in 2000. Until now, the King and Jones depositions had been housed in sealed envelopes marked “confidential” as part of the King v. CBS court record. But in his order, O’Kelley noted that the depositions, while stamped confidential, had never been officially included under the blanket confidentiality order the Kings and CBS relied on to seal much of the case file. At the request of King attorney Joseph M. Beck, O’Kelley now formally has sealed those depositions. However, he has rejected Beck’s requests either to remove them permanently from public access or to return them to the Kings. The judge called the legal battle to keep the bulk of the case file a secret “illustrative of the administrative headache caused by litigants who stipulate to blanket protective orders, arbitrarily file boxes of documents under seal, and then contest their unsealing at the conclusion of the litigation.”Ironically, Beck and CBS attorney Floyd Abrams, of the New York firm Cahill, Gordon & Reindel, are recognized nationally as aggressive defendants of the First Amendment. In briefs filed last year and in an October hearing in O’Kelley’s chambers, Beck argued strenuously against unsealing the records, among them 40 exhibits, 17 depositions, licensing agreements and legal briefs that accompanied court motions. CBS also initially objected to unsealing the records, but withdrew its objections last October, according to O’Kelley’s order. Beck also eventually agreed to drop objections to unsealing the exhibits if Jones’ and King’s depositions were not made public. Beck argued that if the depositions were already public, they “should be promptly removed from the public record and properly placed under seal,” according to O’Kelley’s order. O’Kelley described rulings by the 11th U.S. Circuit Court of Appeals regarding the sealing or unsealing of court records as “murky.” But he clearly leaned toward opening the 18-inch-thick King file to the public. “Given the passage of over five years since the litigation commenced, the purportedly confidential information contained in the parties’ summary judgment exhibits arguably no longer has value as confidential business information,” he wrote. “Yet, in response to the instant show cause order, both parties instinctively opposed unsealing the materials, apparently without even reviewing them.” In his order, the judge proposed “two simple solutions” to the sealed records problem. “First, before arbitrarily filing documents under seal, litigants must guard against needlessly drawing upon judicial resources and should be mindful of the administrative quagmire through which court records officers must wade in managing such records. Second, and more importantly, courts should no longer permit parties to stipulate to protective orders, and freely file documents under seal, without first specifying a date upon which the seal may be vacated.”

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