The judges name is Jed S. Rakoff, and he “sits” in the US District Court of Manhattan. He’s a man I could address as “Your Honor,” and sincerely mean it. He isn’t shy about stating that the public must be able to “see” what our court system is doing if they are to have any confidence in it at all. He’s adopted strict rules limiting what sort of materials may be kept confidential in cases before him. He calls this “transparency,” but what he’s really saying is this . . . every time a court does something under the table, (like sealing State Farm’s documents without any basis whatsoever), it demeans the justice system and destroys people’s belief in their government.
We all know how corporate defendants constantly game the system with their pseudo “trade secret” claims. Good God, think of the horror stories posted on this blog alone. Sadly, these shameless lies presented in signed court papers governed by Rule 11 honestly standards are rarely subjected to the mandatory test for excluding discoverable information: (1) the movant has the burden of proving everything they withheld is a bona fide trade secret; and (2) a record finding must be made, based on facts and/or testimony, and the controlling law in discovery cases; and (3) all of this must be preserved in a public court record, susceptible to appellate review.
Contrast Judge Rakoff’s “transparency” with what happened in Birmingham, corporate rat’s nest of the South. Not only were documents concealed, hell, the entire case against Cori and Keri Rigsby was ginned up to keep evidence of federal flood program fraud a secret, and at the same time persecute and defame the Rigsbys and Dick Scruggs as document thieves. Imagine that. What would people like Oliver Wendell Holmes and Benjamin Cardozo do if they were alive to witness an Article III Tribunal, a United States Federal Court involved in this sordid and illegal mess? Imposing personal jurisdiction over persons not even within the court’s constitutional power . . . for the purpose of concealing a multi billion dollar fraud upon the US Treasury?
Sealing documents is now endemic. A recent event in our state court comes to mind. In Chip Pickering’s case in Madison County Chancery Court, the judge tried to keep Pickering’s scandalous C street diary from getting in the court record. Pickering, another family values pimp was screwing a Jackson cellular communications heiress, and at the same time using his committee seat to channel 156 million in government telcom grants to her company.
Judge Rakoff has an important Bank of America (BOA) case before him right now. You’ll remember BOA took over Merrill Lynch in a rescue merger last year. Well, just before the merger, Merrill handed out 3.6 billion dollars to its executive thieves but BOA kept quiet about all this, then turned around and sought bailout funds from the US Treasury. Apparently, BOA got with the repulsively corrupt SEC and cooked up an order, actually a “fix,” to present to Judge Rakoff. The fix was BOA would agree to pay a (trifling) fine of 33 million, and then the entire matter would be concluded without further investigation. One little problem: there’s a bona fide judge involved here, who swore to an oath, and guess what corp-o-thugs, this guy follows it. Judge Rakoff is ordering the parties to disclose who lied to conceal the bonuses, (he wants names), and why the SEC is colluding with this proposed order, to keep this all secret.