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15 Comm. Law. 1 (1997-1998)

handle is hein.journals/comlaw15 and id is 1 raw text is: Communications Publication of the Forum on Communications Law American Bar Association Volume 15, Number 1, Spring 1997 Rule 26(c) and the Business Week Controversy Guarding Privacy Rights of Litigants Against Nonparties BY JUDGE JOHN FEIKENS My decision to restrain Business Week from publishing sealed discovery documents in a lawsuit between Procter & Gamble (P&G) and Bankers Trust (BT)1 has met with much predictable hostility from the press and lawyers representing media interests, to which Richard S. Hoffman and Paul B. Gaffney's recent article in Communications Lawyer must now be added.2 Business Week has been depicted as an inno- cent nonparty to the litigation, zealously pursuing the pub- lic's right to know as a good magazine should. Yet in truth, the undisturbed findings of fact established that Business Week consciously subverted a court-entered protective order. What Business Week did was functionally not all that different from absconding with sealed docu- ments from a courthouse. Had publication not been Continued on page 17 Business Week Responds BY VICTOR A. KOVNER, LAURA R. HANDMAN, AND ROBERT D. BALIN It was with dismay that we read Judge Feikens' continued defense of the prior restraint he issued enjoining publication of information Business Week had obtained from sealed attachments to a motion to amend a complaint. In its widely heralded decision vacating the district court's injunction,1 the Sixth Circuit took strong exception to both the process by which the prior restraint was issued and the court's justifica- tion. Although it serves no useful purpose to relitigate in this forum the matters already resolved by the Sixth Circuit, we cannot let pass what we respectfully believe are unwarranted aspersions cast on Business Week and the serious misreading of the Sixth Circuit's decision. (1) Judge Feikens criticizes the authors, Richard Hoffman and Paul Gaffney, for saying his reliance on Seattle Times v. Continued on page 19 Illustration by Garrett Kallenbach

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