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Bloomberg Joins Daily Planet in Lawsuit Against Wal-Mart Stores By J. DOUGLAS ALLEN-TAYLOR

Tuesday February 15, 2005

Freedom of information advocates got a boost this week when national media company Bloomberg Financial Markets joined the Berkeley Daily Planet’s action to unseal California Wal-Mart records filed in a class action lawsuit. 

In what is described by the law.com website as “the biggest single [class action] case in the nation,” a group of Wal-Mart workers are suing the giant retailer, in Savaglio v. Wal-Mart Stores, for denying pay for missed lunch and rest breaks to 204,000 current and former California employees. 

Last August, the Daily Planet joined the action as an intervenor after it learned that many of the documents filed by Wal-Mart in the case had been placed under “conditional seal,” making them unavailable to the public. The Planet is being represented by the Oakland law firm of Weinberg, Roger & Rosenfeld in its motion to open all of the Wal-Mart documents to the public. 

Weinberg, Roger & Rosenfeld attorney M. Suzanne Murphy said that Bloomberg would bring “considerable clout” to the lawsuit. Bloomberg formally entered the case Friday. 

On Monday, a Bloomberg representative sat in the back of an Oakland courtroom and took notes as Daily Planet attorneys argued against a tentative ruling by Superior Court Judge Ronald M. Sabraw that some of the Wal-Mart documents would remain under wraps. 

At issue are nine volumes of documents filed by Wal-Mart which include labor guidelines, pay and incentive guidelines, timekeeping system records, and store operational reviews. 

On Monday morning, Judge Sabraw listened to Murphy and attorney Jessica Grant of the Furth Firm, representing the Savaglio plaintiffs, try to convince him of the defectiveness of his preliminary order that at least one of those nine volumes remain sealed. At times the proceedings resembled more of a conversation than a hearing, with Sabraw breaking into the attorneys’ presentations to ask devil’s-advocate questions or counter their assertions. At one point, the judge apologized to Murphy for “continuing to interrupt your argument.” 

Wal-Mart attorney William Edlund said he was satisfied with the judge’s preliminary ruling, and offered only token argument. He said that the amount of material to remain sealed “is only a small number,” and said that he would go through documents with Daily Planet attorneys to make sure any information was not “improperly redacted.” 

It was a feisty Grant who provided the only zinger of the hearing. In answer to the judge’s written ruling that many of the at-issue documents are protectable trade secrets, Grant said that “the documents show that Wal-Mart has a competitive edge because they’re breaking the law. They’re exploiting their hourly employees.” 

When Judge Sabraw admitted that he had not read many of the documents at issue but was relying on the affidavits of Wal-Mart officials that the requested documents were “confidential material,” Grant called the affidavits “boilerplate documents” that offered only the officials’ word, but no details as to how the documents were handled. She said that many of the requested documents were available to all Wal-Mart employees on the company website, and the company had not shown it had taken steps to keep employees from distributing that information. “Any one of these workers could download these same documents and pass it on to a newspaper,” Grant said. 

“All the court can do is control the documents in this case,” Sabraw replied. “The Daily Planet could get these documents off the Internet themselves and publish them, and as far as I’m concerned that would not be a violation of this order to seal.” 

Daily Planet attorney Murphy said in reply that this put the burden on plaintiffs to try to search for the documents. “Our office spent a tremendous amount of research time trying to determine if any of these documents were already in the public domain, either on the Internet or in cases in other states. We have the resources to do that. Many of the news outlets do not.” 

In the end, Sabraw told attorneys for both sides that “even if I seal these records, such an order is not necessarily permanent. It’s always possible to bring a motion to unseal the documents at another time, as circumstances dictate.” 

Sabraw left open the possibility that the sealed documents could still be introduced at trial, which is scheduled to begin in June. “At that point, I’ll rule again on whether the documents can be made public,” he said. “If not, I can order the courtroom closed during the time when those sealed documents are introduced and argued.” 

Murphy and Grant said they expected the judge’s final ruling on the sealed documents within a week.›