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A small Berkeley, Calif., newspaper may soon have some company in its attempt to pry open court records in a wage-and-hour class action against Wal-Mart. In a tentative ruling last month, Alameda County Judge Ronald Sabraw indicated he’ll place a permanent seal on some discovery documents and materials related to various motions in the case, even though some of the documents were posted online in past appeal court proceedings. The Berkeley Daily Planet is represented by M. Suzanne Murphy, a partner at Oakland’s Weinberg Roger & Rosenfeld and a former sealed records-rule specialist with the Judicial Council of California. If Sabraw makes his tentative ruling final, Murphy said, she expects to bring outside lawyers and additional media outlets into the case. Mary Duffy Carolan, a media law specialist with Davis Wright Tremaine, said Sabraw’s tentative ruling seems to err on the side of secrecy. “The specific Rule of Court relied on by the court in its tentative ruling is inconsistent with the public’s First Amendment right of access,” she wrote in an e-mail Friday. Carolan isn’t involved in the case and says she doesn’t know Wal-Mart’s motives. But, she said, “We do find, oftentimes, that when parties are trying to seal documents, it’s because they’re damning or embarrassing, not because they sit within a trade secrets definition.” “It’s a tremendously important and closely watched case,” said Karl Olson, a media law specialist and partner with Levy, Ram & Olson who frequently represents news outlets seeking access to government and court records. He is concerned that Sabraw’s definition of trade secrets is overly broad and unnecessarily prevents public scrutiny. “The public has an overwhelming interest in seeing what the evidence was that’s been presented in the case, which has been up and down to the court of appeal already,” added Olson, who has represented The Recorder in other cases. “It’s another example of a litigant taking a very aggressive approach to sealing and calling everything a trade secret when it’s not.” John Nadolenco, a partner with Mayer, Brown, Rowe & Maw in Los Angeles who represents Wal-Mart, referred all comments to a company spokeswoman. She did not return calls by press time. The fight over sealed documents comes in Savaglio v. Wal-Mart, C-835687-7, in which a class of plaintiffs represented by Jessica Grant, a partner with the Furth Firm in San Francisco, alleges that Wal-Mart has failed to pay overtime wages. While Grant continues to litigate the case — she was in Arkansas deposing Wal-Mart executives last month — Murphy’s firm, one of the Bay Area’s most prominent union-side firms, argues that Wal-Mart is trying to hide embarrassing records from the public by labeling them trade secrets. Murphy said she and her partners began looking at the matter after hearing that Wal-Mart’s filings might give insight into employers’ attempts to change state lunch-break regulations. “We got involved last summer, in July of 2004. There were rumors going around the labor and employment bar that employers had approached the [Division of Labor Standards Enforcement],” she said. “The whole records issue came up because we were just trying to determine what was going on in the case.” The lunch-break fight ended up coming to a head in December, when DLSE proposed a rule that would have curbed lunch-break litigation. The rule change was eventually dropped. But, Murphy said, her firm felt there was no basis for the records to be sealed. And the lawyers think the material could shed light on the business and political strategies used by the labor and employment bar’s prime target. “This case is really sui generis in the scheme of things,”she said. “It has the combination of public interest and the rights of workers.” Becky O’Malley, a Daily Planet co-owner and editor, said the paper became involved after a reporter heard from Murphy that the Wal-Mart documents were sealed. “We’re a paper. We want to know what’s going on in the courts,” she said. Murphy was glad to take the paper as a client. “The benefit of having a media client in this contest is that we don’t get slammed constantly with union bashing,” she said. Murphy declined to say whether the Planet was paying her fees, but said she expects to recover fees if she prevails.

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