Table of Contents | ||
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I. | PRELIMINARY STATEMENT | 872 |
A. Introduction | 872 | |
B. Case Management History as it Bears Upon Confidentiality | 877 | |
C. General Description of the Documents Whose Confidentiality is at | ||
Issue | 882 | |
D. The Contentions of the Parties | 884 | |
E. The Framework for Dealing with the Motions and an Overview of | ||
Their Resolution | 887 | |
II. | THE PRINCIPLE OF CONFIDENTIALITY | 889 |
A. Confidentiality Orders Pursuant to Federal Rule 26(c)(7) | 889 | |
B. The Validity of Pretrial Order 35 | 892 | |
C. The Propriety of Wholesale Declassification | 893 | |
III. | COMMON LAW ACCESS RIGHTS TO JUDICIAL RECORDS | 895 |
A. The General Nature of the Right | 895 | |
B. The Extent to Which Access Rights Attach to Judicial Records | 897 | |
1. Introduction | 897 | |
2. Discovery Materials | 898 | |
3. Material that is the Subject of an Evidentiary Ruling | 898 | |
4. Materials Referred to at a Hearing | 899 | |
5. Records Filed Under Seal that are the Ultimate Subject of a | ||
Dispositive Ruling | 901 | |
C. Countervailing Interests: The Balancing Test | 901 | |
D. Access Rights to the Critical Documents at Issue | 905 | |
1. Introduction | 905 | |
2. The Document Submissions Sheets | 905 | |
3. The Final Pretrial Statement | 906 | |
4. Documents Referenced in the Summary Judgment Hearings and | ||
in the Final Pretrial Statement | 907 | |
5. The “Raw Economic Data” Contained in Sealed Discovery | ||
Responses and the Final Pretrial Statement Appendices | 907 | |
IV. | FIRST AMENDMENT INTERESTS IN JUDICIAL RECORDS | 908 |
A. Introduction | 908 | |
B. First Amendment Rights in Discovery Materials | 908 | |
C. Relationship Between the First Amendment and the Common Law | ||
Right to Inspect and Copy | 913 | |
D. First Amendment Rights to the Remaining Documents at Issue | 914 | |
V. | CONCLUSION | 915 |
These submissions, carefully phrased with self-serving statements that they do not disclose confidential information, contain artfully edited portions of information contained in materials obtained in this litigation from defendants, the end effect of which is to present to these various bodies a constant flow of half-truths and misinformation in a deliberate anticompetitive campaign to support Zenith's allegations that Japanese competition is destroying its business.31
(U)nless and until introduced into evidence,58 the raw fruits of discovery are not in the possession of a court. If the purpose of the common law right of access is to check judicial abuses, see United States v. Mitchell, 551 F.2d 1252, 1257-58 (D.C.Cir.1976), rev'd sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589 (98 S.Ct. 1306, 55 L.Ed.2d 570) (1978), then that right should only extend to materials upon which a judicial decision is based.
All exhibits received in evidence, or offered and rejected, upon the hearing of any cause or motion, shall be delivered to the Clerk, who shall keep the same in custody, unless otherwise ordered by the court.
The First Amendment interests of litigants in the promulgation of materials exacted from another party through the compulsory processes of the courts are much more limited and of a fundamentally different character from the First Amendment interests of litigants and non-litigants in the public communication of other information concerning judicial proceedings. This is because litigants who wish to disseminate discovery materials have gained access to such materials-access which they would not ordinarily have-through a statutory system that expressly reserves to the courts the power to attach restrictions on the use of such materials.
There simply were no restrictions upon press access to, or publication of any information in the public domain. Indeed, the press-including reporters of the electronic media-was permitted to listen to the tapes and report on what was heard. Reporters also were furnished transcripts of the tapes, which they were free to comment upon and publish. The contents of the tapes were given wide publicity by all elements of the media. There is no question of a truncated flow of information to the public.
Answers to Interrogatories | - | 174 |
Deposition Transcripts | - | 62 |
Memoranda | - | 61 |
Motions | - | 23 |
Briefs | - | 19 |
Exhibits | - | 9 |
Objections | - | 4 |
Status Reports | - | 2 |
Requests for Production | - | 2 |
Transcripts of Hearings | - | 10 |
Interrogatories | - | 1 |
Pretrial Orders | - | 3 |
Price Comparisons | - | 3 |
Affidavits | - | 3 |
Final Pretrial Statements | - | 9 |
TOTAL | 385 |
Appendix A | Plaintiff's Compilation of Japanese |
Trade Associations and Other | |
Groups | |
Appendix B | Calendar of Conspiratorial |
Meetings April 12, 1961 - August 7, | |
1968 | |
Appendix I | Compilation of Defendants' |
Answers to Interrogatories Relating | |
to Japanese Trade Association and | |
Other Groups |
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