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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