The parties have 10 days from yesterday to make sealing, or redaction motions, according to a local PACER docket entry. But sealing here is wholly inappropriate. The public has a right to know about the potential positions, and experts, in this multi-billion dollar, and decade long lawsuit -- involving two very large multinational pharma concerns'. . . names and trademarks.
So, I will rerun mine of last year, as to why this is so -- and forward a copy of it to internal and external counsel for both Mercks. I will file on the docket if an at least redacted version is not on file in the Newark court-house by end of day, on June 15, 2024.
[My October 2023 item -- in part, and as original:] It is certainly. . . newsworthy. In any event, here is a bit of what I'll send to chambers as a non-party, shortly, to encourage the unsealing under that last docketed order. . . before the real press writes about some form of dual docket / purported "local practice rules":
. . .My [entirely pro bono] clients recognize that the court has myriad other demands on its time and limited staffing resources, but absent a documented showing of unreasonable administrative burdens (and a two page order, published at the same moment, makes it plain that this is no administrative burden!), the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, she has not quantified the cost. . . nor has she detailed the additional labor that would have been required)....
Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about. . . efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).
Specifically, a pre-trial scheduling order (Cause No. 16-cv-266; ECF Doc. No. 227) in this matter has been repeatedly debated, and apparently repeatedly revised -- but not filed for over eight months now, and never placed on the public docket, by the court in even a redacted form -- and so, remains entirely invisible to the public.
Of course, while redactions for trade secrets and sensitive, personally identifying information would be normal, there has been no such effort made, on the part of the counsel to the parties. It seems court staff sua sponte designated the ECF Proposed Pre-Trial Order Document as “attorneys’ eyes” only.
Based on my review of the ECF record in this matter, it would seem no public court order -- whether in writing or issued orally from the bench -- has set forth the findings required by the First Amendment, prior to the removal of this judicial document (No. 227) from the record. See, e.g., Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990).
However, rather than waste more of the court’s resources and time, I have chosen (as a non-party member of the public, and at this point, non-intervenor) to simply write to counsel of record directly, and copy the parties' general counsels on this. I am hopeful the lawyers will prepare and file an agreed redacted version of ECF Doc. No. 227, as required by long-standing, uncontroverted black letter First Amendment law.
To be clear, this need not (and perhaps should not) require my filing as an intervenor, in the Newark, NJ federal district courtroom -- to achieve Doc. 227 being placed on the public docket (even in redacted form), as it sensibly ought to be resolved without need for appearances in the record, on my clients’ behalf.
Please instruct counsel for all parties to prepare and publish an agreed redacted version of the proposed Pre-Trial Order, on the public docket before June 16, 2024. Kind regards. . . . /s/
Well. . . we shall wait and see (again!) if counsel handles it quietly and promptly. These are, afterall. . . the peoples' courts. Onward.
नमस्ते
2 comments:
And twice at 12:04 am… smiling.
And again — twice — at 12:04 am, a day later… grin!
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