On December 12, Magistrate Judge Mark R. Abel issued an order for the U.S. District Court for the Southern District of Ohio to place five sets of court records under seal for the ongoing case pitting coal baron Robert E. Murray against Aubrey McClendon, one of the godfathers of the hydraulic fracturing (“fracking”) boom.

DeSmogBlog published parts of two sets of the five sets of documents ordered under seal by Abel in an October 2014 article about the Murray v. McClendon case. The documents we published revealed a lease for McClendon’s new venture — American Energy Partners — for the first time. 

Bob Murray, owner of American Energy Corporation Century Mine in Ohio, sued Aubrey McClendon for allegedly infringing upon his company’s copyright in August 2013. He claimed McClendon commandeered the “American Energy” brand.

Both sides have now gone back-and-forth over discovery related issues for months. The dispute has shaken loose many newsworthy documents revealing much about McClendon’s new company in particular.

This includes the American Energy Partners leaseadvertisement pushing readers to apply for an American Energy Partners job

Image Credit: U.S. District Court for the Southern District of Ohio

DeSmogBlog reached out to Judge Abel for comment and received the following response:

It is my practice to let my filed orders speak for themselves. I recognize that the December 12, 2014 order (doc. 90) is cryptic. There is a protective order in this case that permits the parties to designate proprietary business information as highly confidential. When that information is presented to the court in a brief, the protective order requires the party filing the brief to request that the court order that the brief be sealed. When a sealed brief is filed, my practice is to require the party to file a redacted version of the brief that lets the public read the arguments the party is making to the court but does not include the information designated highly confidential. (The protective order provides that a party or member of that public has the right to challenge a highly confidential designation.)

On December 12, 2014, counsel for all parties called me and jointly requested that I order the briefs identified in the motion sealed. No briefs were or will be filed. The attorneys called on the telephone. It is my practice to listen to the litigators’ arguments on the phone, then reduce any ruling I have made to writing after the call. I do not record the telephone conversations.

DeSmogBlog mentioned the protective order referred to by Judge Abel in our initial article on the Murray v. McClendon case. Counsel for both parties in the case did not respond to a request for comment. 

Sealed Documents Detailed

DeSmogBlog has followed this case closely since Murray filed his initial complaint in August 2013, regularly checking the docket and saving copies of the court documents along the way.

Thus, we possess most of the court documents now under seal via Abel’s order, with some already published in the initial Murray v. McClendon DeSmogBlog article and others now published here for posterity.

Magistrate Judge Mark R. Abel; Photo Credit: U.S. District Court for the Southern District of Ohio

“If a sealed document is the type which the press and public have historically had access to, then that weighs in favor of finding a First Amendment right of access. With that in mind, it should be pretty obvious that the press and public have historically had access to records which were, well, already public,” Kel McClanahan, executive director of National Security Counselors, told DeSmogBlog.

“While there’s definitely no ‘cat out of the bag’ rule that says once something is filed publicly, it can never be sealed, there should be a higher standard for sealing something that was previously public,” McClanahan said.

Besides the American Energy Partners jobs advertisement published in the first DeSmogBlog piece, Abel also ordered a Murray memorandum in opposition to McClendon’s motion for a protective order to be placed under seal that was also published in the article. In that memo, Murray’s legal team argued that the protective order would have prohibited it from undergoing a more robust discovery process. 

Abel also ordered the Affidavit of Heather Santini, a receptionist at American Energy Corporation, sealed. DeSmogBlog mentioned the document in its initial article on this case.

Both the memorandum in opposition to McClendon’s motion for a protective order and the Heather Santini affidavit make the argument that McClendon’s “American Energy” name choice has caused “potential and actual confusion” among customers and prospective customers, the standard which Murray Energy’s legal team says equals grounds for copyright infringement.

Other documents in DeSmogBlog’s possession, but not published in the initial article, include:

-the Declaration of Vladimir P. Belo, a member of Murray’s legal counsel for the case;

-a Discovery Dispute Conference Order issued by Abel;

-a Murray motion to extend discovery deadlines

-another American Energy Partners jobs sales pitch

-a recent McClendon line-by-line discovery response

–emails exchanged in November between both parties’ legal counsels on discovery issues

-and an index to exhibits filed as part of a discovery dispute

Further, two batches of discovery-related contestation material — over 300 pages in total — are now under seal but published here. 

Seal Order Legal?

A 2010 article published by the Federal Judicial Center — the education and research wing of the U.S. federal courts — titled ”Sealing Court Records and Proceedings: A Pocket Guide,” discusses both the legality and principles involved in the decision to seal court records in federal cases.

“Essential to the rule of law is the public performance of the judicial function,” the paper says. “The public resolution of court cases and controversies affords accountability, fosters public confidence, and provides notice of the legal consequences of behaviors and choices.”

Citing the landmark Nixon v. Warner Communications, Inc. U.S. Supreme Court case, the paper further explains that in U.S. federal courts there is an assumption of right to access court records. 

“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents,” reads the ruling in that case.

In a related case, Associated Press v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit came to a similar conclusion about access to pretrial motion documents for civil cases akin to Murray v. McClendon. 

“There is no reason to distinguish between pretrial proceedings and the documents filed in regard to them,” reads the opinion for that case. “We thus find that the public and press have a first amendment right of access to pretrial documents in general.”

Star Chamber Specter

Reporters Committee for Freedom of the Press also explains that — unlike what Judge Abel did for this case — judges must at least offer the public a legal rationale for sealing documents. 

“Where the First Amendment protects the right of access to court documents, judges must, before restricting public access to a case, articulate specific, on-the-record findings demonstrating that sealing is necessary to serve a compelling government interest and that the sealing order is narrowly tailored to serve that interest,” they wrote.

Which begs the question: did the off-the-record phone conversations meet that legal and public interest barrier? 

“Even though judges are supposed to take all things into account to avoid situations where both parties agree to do something that is still not in the public interest, many judges often resist denying something that both the parties agree on,” said McClanahan. 

“Litigation is an adversarial system, and if the parties are in agreement, often judges will go along with it in the interest of efficiency. Judges value their time and energy as much as the rest of us.”

McClanahan further pointed out the slippery slope of sealing documents, which raises the specter of tipping the balance of the U.S. court system in an undemocratic direction.

“In the end, the strong presumption in favor of open court records is not about the dispute or even the parties, it is about the process. Americans have to have confidence in the integrity of the judicial process as a whole, and any deviation from that raises the specter of a Star Chamber,” he said. “It is for that reason that parties who wish to seal court records are supposed to have a much harder time of it than those who advocate transparency.”

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