Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Pastimes : Investment Chat Board Lawsuits -- Ignore unavailable to you. Want to Upgrade?

To: dantecristo who wrote (3384)	7/10/2002 4:10:11 PM
From: dantecristo	Read Replies (1) \| Respond to of 12465

Uh-oh! Did Orrick blow it for their clients? Appellants' Opposition to Respondents'Motion to File Portion of Reporters' Transcript Under Seal and to Designate It "Attorneys' Eyes Only" "I. INTRODUCTION Respondents could have filed a motion in superior court to seal the trial testimony of Jeff Wright (“Wright”) and designate it as “attorneys’ eyes only.” They failed to do so at trial, and they have failed to do so in the seven months since the trial’s conclusion. Their belated attempt to seek relief in the Court of Appeal is procedurally improper because the trial court never sealed the testimony, and the issue is now moot because the testimony has been made publicly available on the Internet. Respondents’ motion for a sealing order by this court should therefore be denied.1 1. Respondents incorrectly assert in their moving papers that appellants do not oppose the motion to seal. No agreement as to sealing was ever reached. II. ARGUMENT “A record filed or lodged publicly in the trial court and not ordered sealed by that court must not be filed under seal in the reviewing court.” (Cal. Rules of Court, rule 12.5(d).) Thus, if no party ever sought an order in the trial court sealing a record filed or lodged in the trial court, the Court of Appeal cannot entertain a motion for a sealing order. Here, the Wright testimony was not filed under seal in the trial court. Thus, this court lacks authority to order it sealed on appeal. Respondents never contend, because they cannot, that they filed a motion in the trial court to seal the Wright testimony. Instead, respondents claim to have relied on certain other “orders and admonitions” issued by the trial court for their misguided belief that the testimony would be filed under seal in the trial court. (See Respondents’ Memorandum of Points and Authorities in Support of the Motion (“Respondents’ Br.”) at pp. 2, 5-7.) Those other “orders and admonitions” include: (1) the trial court’s order sealing Wright’s deposition testimony and exhibits; (2) the clearing of the courtroom during Wright’s testimony; and (3) the trial court’s admonition to the jury that Wright’s testimony was confidential. (Respondents’ Br. at pp. 5?6.) Respondents took no action in the trial court, during trial or in the seven months since, to secure an order actually sealing Wright’s trial testimony. Thus, when the court reporter finished transcribing the record, the trial court instructed the court reporter to submit the complete reporter’s transcript to this court unsealed because there was not a separate order sealing Wright’s trial testimony. (See Respondents’ Br. at pp. 6-7; Declaration of Matthew H. Poppe in Support of Respondents’ Motion (“Poppe Declaration”) ¶¶ 6, 24-25.) Respondents rely on California Rules of Court, rule 12.5(e), for the proposition that this court can order Wright’s testimony to be sealed. (Respondents’ Br. at p. 7.) That rule, however, is inapplicable here because it only authorizes this court to seal “[a] record not filed in the trial court.” (Cal. Rules of Court, rule 12.5(e)(1), emphasis added.) The transcript of Wright’s trial testimony is a record filed in the trial court; thus it is governed by California Rules of Court, rule 12.5(d), which provides that a record filed publicly in the trial court may not be filed under seal in this court. Respondents also rely on California Rules of Court, rule 243.1. (Respondents’ Br. at p. 7.) That rule, however, is included in the “rules for the trial courts” section of the Rules of Court. Thus, it is inapplicable to a motion in the Court of Appeal. Finally, an order by this court sealing Wright’s testimony would be futile. Because there is no sealing order in the trial court, an order sealing the appellate record would not prevent public disclosure of the testimony, since the record is available in the trial court. That is why this court may only seal records that have been either sealed or not filed in the trial court. Sealing by one court would be futile if the same records are available in a second court. Moreover, Wright’s testimony has now been posted on the Internet, and is thus available in yet another public forum. An order sealing the testimony would be ineffective. Respondents’ seven-month-long failure to seek an order in the trial court sealing Wright’s testimony precludes them from belatedly seeking a sealing order now from this court. III. CONCLUSION Respondents’ motion should be denied. Dated: July 10, 2002 Respectfully submitted, HORVITZ & LEVY LLP Jon B. Eisenberg Jeremy B. Rosen LAW OFFICES OF RANDALL M. WIDMANN Randall M. Widmann GLYNN P. FALCON Attorneys for Appellants MARY DAY and MICHELANGELO DELFINO" geocities.com