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Politech is the oldest Internet resource devoted to politics and technology. Launched in 1994 by Declan McCullagh, the mailing list has chronicled the growing intersection of culture, technology, politics, and law. Since 2000, so has the Politech web site.
The 19-page PDF of the deposition is here (maybe I'm missing something, but it's not that interesting -- though folks may want to keep a copy in case it vanishes): http://www.columbusconsumer.com/finkdepo.pdf -Declan --- Date: Tue, 08 Apr 2003 14:14:11 -0400 From: Paul Levy <PLEVY@citizen.org> To: declan@well.com Subject: New development on Internet free speech I don't know if this is quite up your alley, but there has been an interesting twist in the tale of the web site mounted by Bob Dalton to criticize Columbus-area auto-dealer Ricart Automotive. You reported on the domain name aspect of the case at http://www.politechbot.com/p-02010.html Recently Dalton obtained a deposition that had been taken in a class-action lawsuit pending against Ricart under the Truth-In-Lending Act. It seems that in the course of the deposition a Ricart managare admitted to some practice that the company finds embarrassing. After the judge ordered the deposition made public, Dalton put it up on his web site. Ricart filed a motion to have certain parts of the deposition kept secret, but it did not send a copy of the motion to Dalton, and it did not seek a stay of the release of the deposition. After getrting an after-the-fact order sealing three pages of the deposition, and embarrassed about its failure to head off Dalton's web site publicity, Ricart is now threatening to have Dalton held in contempt on the ground that he is bound by the sealing order. A copy of our letter to Ricart lawyer Charles Saxbe, who has been making the noises about contempt sanctions, follows: BY TELECOPIER: 614-221-4012 April 8, 2003 Charles R. Saxbe, Esquire Chester, Willcox & Saxbe Suite 1000 65 E. State Street Columbus, Ohio 43215 Re: Violette v. P.A. Days No. 01-CV-1254 Dear Mr. Saxbe: Eric Willison, an attorney who formerly represented Bob Dalton in a lawsuit brought against him by Ricart Automotive regarding his web site, has told me that you have been threatening to file a motion to hold Dalton in contempt of an order that you obtained placing three pages of a deposition under seal. Your contention, I am told, is that Dalton's inclusion of those three pages on his web site is a violation of the order that Judge Sargus entered on March 27, 2003, placing those three pages under seal. I note that the electronic docket identifies one of your associates, Ms. Morrison, as being Ricart's counsel in this case, and does not show you as being one of the lawyers in the case; nor am I involved in the case at this point. However, Dalton consulted me because I was also one of his lawyers in the earlier case, and so I have been trying to reach you to try to avoid the filing of the threatened contempt motion. In sum, we do not believe that your motion can succeed on the merits, and I question whether the motion is in your client's interest. As we see it, Dalton has done nothing wrong. Acting pro se, he did file a motion in this case asking that the deposition be available publicly. The Magistrate Judge ruled on February 12, 2003, that the deposition would be public, and stated that although objections could be filed, the order was of immediate force and effect unless a stay was granted. After Dalton received the order, he obtained a copy of the deposition from the Clerk, and the deposition has been publicly posted on his web site ever since. http://www.columbusconsumer.com/finkdepo.pdf After Dalton obtained the deposition, Ricart moved for partial reconsideration of the ruling on the public character of the deposition. So far as the docket reflects, no effort was made to obtain a stay of the order allowing access to case materials. Moreover, Ricart did not inform Dalton that this motion was being filed, perhaps because Dalton was not a party to the case. Had Dalton been notified of this motion, he would have explained why the public should not be denied the opportunity to learn the information set forth in the deposition. It would obviously have been a violation of due process for Ricart to have sought direct judicial relief affecting Dalton's interests without notifying him of its efforts. Although service of this motion for reconsideration may not have not strictly required, because, after all, Dalton was not a party to this case, it would certainly have been prudent for your associate Ms. Morrison to have served the motion on Dalton given that she was seeking reconsideration of a ruling that responded in part to a pro se motion by Dalton. Moreover, by taking Dalton out of the loop on this motion, Ms. Morrison lost any chance to argue that he was bound by the subsequent ruling. The Court granted Ms. Morrison's motion on March 27, 2003. The order states simply, "Pages 41-43 of Mr. Fink's deposition shall be sealed." No copy of this order was sent to Dalton, again, presumably, because Dalton is not a party to the case. Nor, indeed, does this portion of the order direct Dalton to do or not do anything. It is simply a direction to the Clerk to maintain a certain document under seal. Obviously, if the order were intended to apply to Dalton, a copy would have been sent to Dalton. Given Ricart's failure to take any steps to ensure the non-publication of the deposition while its motion for reconsideration was pending, the entire deposition has entered the public domain. Dalton has been in contact with members of the press who have the entire deposition. Wholly apart from whether sealing was justified, therefore, any effort to require Dalton to maintain the confidentiality of a deposition that he has already published would be moot. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). Moreover, the decision in Bankers Trust makes clear that any attempt to enjoin Dalton from publishing a deposition transcript that he obtained from the public files in the courthouse would be a prior restraint forbidden by the First Amendment. See also County Sec. Agency v. Ohio Dept. of Commerce, 296 F.3d 477 (6th Cir. 2002); Ford Motor Co. v. Lane, 67 F.Supp.2d 745 (E.D.Mich.1999). Wholly apart from whether your threatened motion could be granted, I question whether it is in your client's interest to file it. The natural result of your filing a motion to suppress this information would be to stimulate press interest in the deposition. Moreover, one of the issues in the motion would be whether your associate Ms. Morrison, who is apparently in charge of the case for Ricart, carelessly failed to take the necessary steps to maintain the confidentiality of the deposition transcript while its motion for reconsideration was being prepared for filing and was being considered by the Court, and also failed to serve Dalton with her motion for reconsideration. I cannot imagine that such litigation would be in anybody's interest. Sincerely yours, Paul Alan Levy cc: Geoffrey J. Moul, Esquire Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html --- Date: Tue, 08 Apr 2003 14:16:30 -0400 From: Paul Levy <PLEVY@citizen.org> To: declan@well.com Subject: Dalton's web site Forgot to mention it in previous email: http://www.columbusconsumer.com/ Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. ------------------------------------------------------------------------- To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------