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Buried in the dismissal of a $4 million civil suit brought three-and-a-half years ago by a prisoner fired by his corporate employer for involvement in a bid-rigging scheme, is an order sealing documents related to the case. But the now-sealed documents have in fact been out of public reach for almost the entire length of the case—kept in the courthouse work area of Judicial Hearing Officer Ira Gammerman. Last month, in Mosallem v. Berenson, 1115654/05, the judge dismissed a suit by Mitchell Mosallem, who served as executive vice president at Grey Global Group’s New York office and chief print buyer for the advertising agency. Mr. Mosallem, who was charged with running a bid-rigging and kickback scheme, was sentenced to 70 months in federal prison after pleading guilty in 2003 to antitrust violations and tax fraud. United States v. Mosallem, 02-cr-00649. The state Supreme Court decision appears on page 27. In December 2005, while incarcerated, Mr. Mosallem brought suit against Grey, three of its former executives, and Skadden, Arps, Slate, Meagher & Flom. He accused the defendants of among other things leaking information to prosecutors in violation of a joint defense agreement to shield senior management from criminal liability. The defendants’ information gave the “false appearance that plaintiff…had masterminded” the corrupt practices at Grey, Mr. Mosallem claimed. On Sept. 25, 2006, Mr. Mosallem, sent Justice Gammerman a book of 44 documents as part of an affidavit in opposition to a motion to dismiss. Mr. Mosallem claimed the documents, some of which were marked confidential, backed up his allegations against Grey and contained evidence of other alleged kickback schemes. The exhibits, while never sealed, remained out of public reach, even though procedures outlined by the Office of Court Administration require that judges file all case-related documents with the court clerk “at the first available opportunity” and that unsealed files are to be treated as public records. The absence of the exhibits in the public files was discovered by freelance journalist Jim Edwards in October 2006. Mr. Edwards, who had covered the Grey/Mosallem story since 2004, went to the clerk’s office to inspect the case file, only to find the exhibits as well as documents he had previously seen, were missing. On Oct. 23, 2006, he made a motion to make the files public. Last month, Justice Gammerman, while recognizing the strong presumption in favor of granting access to civil court proceedings, held that making the documents public would only serve to “harm or embarrass the Grey defendants.” The age of the documents, which contain confidential business records, “cuts across” any claim that the public has a “legitimate” interest in them, he wrote. It is a kind of “justice delayed, justice denied situation,” said Mr. Edwards, a former senior editor at Brandweek, who has won awards for coverage of First Amendment issues and the Mosallem bid-rigging scandal. Offer to Seal Mr. Edwards said that shortly after he wrote to Justice Gammerman asking to inspect the file, he got a call from the judge. Justice Gammerman told Mr. Edwards he had decided to keep the missing papers with him after receiving a call from one of the defense attorneys suggesting that the documents might be confidential, Mr. Edwards said. The judge then sent a letter to the parties, asking if they intended to move to seal. The Grey defendants jumped at the chance. In a partial motion to seal, Howard J. Rubin of Davis & Gilbert, who represents Grey, maintained that Mr. Mosallem wrongfully possessed the documents, some of which he had obtained from grand jury proceedings, and that he misappropriated others following his termination. Saying Mr. Mosallem wanted to use the files to exact “some sort of perceived revenge” against Grey, the defense said the documents were “highly likely to confuse and mislead the press and the public into believing that certain alleged potential contractual issues” amounted to illegal activity. Mr. Rubin said the papers were several years old and “wholly irrelevant” to Mr. Mosallem’s action. Public interest in the documents, which contain “scurrilous false allegations” and confidential business information, amounts to “mere curiosity,” Mr. Rubin argued. Mr. Edwards moved to intervene, and countered that Brandweek’s readers “and the wider marketing industry” had a “strong and obvious interest in understanding billing practices and potential ethical lapses.” Any harm Grey would allegedly suffer from the documents’ release is “offset by defendant’s assertion that the information is of advanced age,” Mr. Edwards maintained. The motion to seal was fully briefed by the end of 2006, Mr. Edwards said. But Justice Gammerman did not rule on the issue until May 27 of this year—more than two and a half years after Mr. Edwards asked to see the papers. Section 2219A of the CPLR provides that orders determining any motion, other than a motion relating to a provisional remedy, “shall be made within sixty days, after the motion is submitted for decision.” The provision serves as a guide for judges, said David Bookstaver, a spokesman for the OCA. In his 23-page ruling, Justice Gammerman granted Grey and Skadden’s motion to dismiss the bulk of Mr. Mosallem’s complaint, and ordered the clerk to officially seal the documents. The judge said he found good cause to seal the documents under §216.1 of the Uniform Rules for the New York State Trial Courts. Public disclosure of the exhibits, which were offered to implicate senior Grey executives who were never indicted by the grand jury, “may well undermine a key rationale for grand jury secrecy,” Justice Gammerman wrote. And since Mr. Mosallem’s continued possession of the documents violated his duty to Grey, “[t]he only justification for allowing [the exhibits] to become a part of the public record in this case, and thus provide access to the press, is to harm or embarrass the Grey defendants,” the judge wrote. “Without a stronger showing of public interest,” Justice Gammerman said he was unwilling to release the documents and expose the pro se plaintiff to “possible monetary damages.” He gave Mr. Mosallem, who has completed his sentence, leave to file an amended complaint and replead a breach of contract action against Grey Global Group. Official Guidelines Justice Gammerman’s ruling highlights a “persistent” administrative problem in the New York state court system, said David Schulz, media law attorney with Levine Sullivan Koch & Schulz. “Judges are in the habit of taking files directly into chambers, which defeats public access,” said Mr. Schulz, who is not involved in the Mosallem case. That these documents have been kept from the public for almost three years “shows the magnitude of the problem,” said Mr. Schulz said. Mr. Bookstaver, the OCA spokesman, declined to comment on the Mosallem dispute. But he said that “papers submitted to the court should be filed and once filed, they are presumed public,” unless a judge is working on the case. In fact, in a March 1, 2006 letter to administrative judges, Justice Jan Plumadore, the former deputy chief administrative judge for courts outside New York City, citing complaints from the media, said that judges must file papers with the clerk “at the first available opportunity,” and papers not filed with the clerk must be treated as “public records, available to the media.” In an interview, Justice Gammerman said when there is an issue concerning confidentiality his practice is to consult the attorneys and “ask them if they have a problem with that.” He said that though he did not recall what happened in the Mosallem case, “someone must have expressed some concern about papers.” As for why it took years to rule, Justice Gammerman said “sometimes things take longer than they should.” But Mr. Schulz said the judge not only circumvented the public’s right of access by keeping the records in his work area, but applied the wrong standard in deciding whether to seal the documents. The judge analyzed the sealing motion using the “good cause” standard, but “the constitutional right of access imposes a higher burden,” Mr. Schulz said. “More fundamentally he seems to shift the burden from the party who wants to keep the records secret to the reporter,” Mr. Schulz said. And finding that the exhibits had no bearing on his ruling overlooks the reason the public has the right to see “what the court did and the basis for its action.” Mr. Mosallem, who is on probation until May 2010, said he is appealing the ruling and has not decided whether to file an amended complaint. Mr. Edwards, who freelances for BNET Industries, Brandweek and other publications, said he has not decided whether to appeal. Mr. Rubin declined to comment. @

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