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Friday, May 29, 2009

Ind. Decisions - 7th Circuit's CJ Easterbrook rules in chambers on secrecy issue

In Milam v. Dominick's Finer Foods (ND Ill., Judge Lefkow), a 3 -page in-chambers ruling posted today with the notation "This opinion is being released initially in typescript," and dated May 27th, Chief Judge Easterbrook writes:

A chambers opinion issued earlier this month invited appellees to tell me whether they plan to defend their judgment on the ground that the district judge should not have revived the case by granting plaintiffs’ motion under Fed. R. Civ. P. 60(b)(1). I observed that, if they advance such a contention, then I must decide whether the basis of the district court’s decision can remain secret. The opinion added: “If appellees inform me that they plan to challenge the district judge’s Rule 60 decision, appellants may file a response within seven days.” United States v. Foster, No. 09-1248 (7th Cir. May 1, 2009), slip op. 6 (Easterbrook, C.J., in chambers). * * *

The question at hand is whether information sealed in the district court should remain under seal in this court. Here is the relevant portion of my earlier opinion:

* * * Plaintiffs ask us to maintain the affidavit under seal, because (they say) it “would potentially cause embarrassment and affect [coun- sel’s] personal and professional reputation by disclosing personal matters”. Although the motion cites Baxter International, it does not contend that confidentiality is justified by any statute or privilege. Yet the district court did not explain why it has forbidden public access to this document.

Rule 60(b)(1) permits a judgment to be reopened because of “excus- able neglect”. Just what the “neglect” entailed, and why it was “ex- cusable,” are questions in which the public has a legitimate interest when they underlie a judicial decision. * * *

What plaintiffs now contend is that the affidavit should be removed from the appellate record. Plaintiffs say that, because the district judge did not give a reason either for dismissing the case or for reinstating it under Rule 60(b)(1), Dominick’s cannot demonstrate that the judge abused her discretion and therefore has nothing to gain from contesting the judge’s order. That means, plaintiffs insist, that the affidavit is not important to the appeal.

Yet an unreasoned decision is easier to upset on appeal than a carefully explained one. The judge did not explain the initial order dismissing the suit (an apparent violation of Circuit Rule 50), did not explain the decision to seal the affidavit, and did not explain the grant of relief under Rule 60(b)(1). What is more, Dominick’s contends (and plaintiffs do not deny) that the district judge refused to allow defense counsel to see the affidavit that plaintiffs tendered in support of their Rule 60(b)(1) motion. Dominick’s therefore had no means to oppose the motion. A judicial decision based on information that has been withheld from counsel (in addition to the parties and the public) is extraordinary and requires a compelling justification, which no one in this case has articulated.

This appeal cannot proceed in an orderly fashion under a veil of unexplained secrecy. My earlier opinion explained why secrecy appears to be unwarranted, and I take plaintiffs’ silence in their response as acknowledgment. The affidavit therefore is unsealed and placed in the public record.

Posted by Marcia Oddi on May 29, 2009 04:44 PM
Posted to Ind. (7th Cir.) Decisions