Daily Planet Faces Off With Wal-Mart Over Sealed Worker Records: By JAKOB SCHILLER

Friday November 05, 2004

On Tuesday the Berkeley Daily Planet had its first hearing in Alameda Superior Court concerning the unsealing of records filed in a class action lawsuit brought against California Wal-Mart stores. 

Represented by the Weinberg, Roger & Rosenfeld law firm in Oakland, the Daily Planet filed a motion in August to unseal the records after they found that nearly every document filed by Wal-Mart in the case was under “conditional seal” and inaccessible on the court’s Domain website.  

The suit that the newspaper is trying to gain access to is a statewide class action suit brought by 204,000 Wal-Mart workers who claim Wal-Mart violated their rights under state labor laws by denying them their meal and rest breaks, and by secretly deleting hours worked from their paychecks. The case was filed in 2001, granted class action status on Nov. 6, 2003 and is expected to go to trial in June 2005. 

“Wal-Mart seems to think that they do not have to play by the rules,” said Suzanne Murphy, a lawyer for the paper, about the sealing of all the documents. 

The Daily Planet is concerned the case violates the public’s constitutional right to access court records. It is also concerned that the case could set a precedent where the public, rather than the party that wants to keep its records secret, is forced to prove that court documents should be open to the public. 

According to Murphy, this is not the only lawsuit in California where Wal-Mart has tried to keep its documents secret. According to Jessica Grant, the attorney for the workers in the class action suit, Wal-Mart has designated nearly all their documents confidential in both this case and in other cases around the country. 

“Wal-Mart is hyper-sensitive and they do not want anyone to know about their company,” said Grant.  

Grant added that she believes the real point is that Wal-Mart doesn’t want the public to learn that they are artificially suppressing labor costs by intentionally understaffing their stores and secretly deleting hours from employees paychecks.  

At the hearing Tuesday, Judge Ronald M. Sabraw in the Complex Litigation Department of Alameda Superior Court heard arguments from both sides and is expected to issue a decision within the next couple of days. In a tentative ruling issued by Judge Sabraw the motion to unseal all the records was denied as premature. According to lawyers for the newspaper, that tentative ruling could change significantly with the final ruling. 

The records the newspaper is trying to access are those filed by the parties for the motion that granted the case class action status. The paper also wants access to papers filed in connection with a summary adjudication motion by Sabraw concerning certain legal issues in the class action suit. 

In their opposition to the newspaper’s motion, lawyers for Wal-Mart argue that many of the documents the newspaper has asked to see “contain and discuss highly sensitive proprietary information including trade secrets, business strategies and unique methodologies,” and therefore should remain under seal.  

In the same brief Wal-Mart says the parties followed procedures provided by a protective order entered in the case, and initially asked the court to permanently seal some of the documents submitted “conditionally under seal.” A protective order is an agreement drawn up between both sides in the litigation, which sets guidelines for how they will produce, designate and file confidential information. 

They add, however, that beginning in August 2002, rather than hold two hearings for each motion in the case—one on the motion itself, and another on the request to permanently seal the motion papers—the “court specifically allowed the parties to file documents ‘conditionally under seal’” without having to bring a formal motion to permanently seal. 

“Until now, Plaintiffs have never filed a challenge to the propriety of a document Wal-Mart filed under seal,” they write. 

A spokesperson for Wal-Mart declined to comment further on their argument or any of the other questions posed by the Daily Planet. 

Attorneys for the Daily Planet countered that the sealing of court records is governed by the California Rules of Court, which were mentioned in the protective order, but which Wal-Mart did not follow. Those rules were meant to give effect to the strict constitutional limits on sealed records announced by the California Supreme Court in a 1999 case, NBC Subsidiary (KNBC-TV) v. Superior Court.  

According to the Planet’s attorneys, those rules provide that a court record may be sealed only if the court finds that “the proponent of secrecy has an overriding interest in a particular court record that outweighs the public’s right of access to that record,” and enters an order sealing the record based on that finding. 

Wal-Mart was required to file a formal motion proving its “overriding interest” for every conditionally sealed document before the court made a decision based on the document, according to the paper’s attorneys. Under the protective order, Wal-Mart had to bring a motion to permanently seal no later than 30 days after the last paper filed by the parties in support of or opposition to the court’s decision  

Wal-Mart never filed a motion to have the records permanently sealed, so the conditional seal should no longer apply and the documents should be accessible, Murphy said. 

“If the party fails to jump through the right hoops and prove that the record should be under seal, it’s too late,” Murphy said. 

In the meantime, David Rosenfeld, another attorney for the Daily Planet, found that the First District Court of Appeal in San Francisco had copies of many of the records the newspaper is seeking, which are publicly available and not under seal. According to Murphy, Wal-Mart filed the documents as part of a writ petition asking the Court of Appeal to reverse Judge Sabraw’s rulings on the class certification and summary adjudication motions.  

According to Murphy, Wal-Mart’s public filings in the Court of Appeal means it either knew the records were never properly sealed by the trial court, or waived any right, it may have had to keep those records secret.