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Sunday, September 23, 2007
Sealed Records in "Fighting Sioux" Case

At last, an issue in which all my varied interests converge over one sports-related controversy--a little bit of free speech, a little bit of civil procedure and civil litigation theory, and a little bit of political controversy.

The court presiding over the University of North Dakota's lawsuit against the NCAA over UND's "Fighting Sioux" nickname has issued an order sealing all future documents filed in the case. The court explained the move as a way to encourage and facilitate settlement discussions. The court promised to rescind the order if and when settlement talks break down and the case resumes moving towards trial. UND sued the NCAA last year when the NCAA refused to grant UND a waiver to continue using the nickname at NCAA championship events (as it had done with most larger schools, including University of Utah and Florida State). The suit alleges breach of contract and state-law restraint of trade.

News stories have not gone into detail about the court's reasoning or about the arguments the NCAA made in support of its motion to seal. Some thoughts and questions:

1) I am trying to figure out what sort of sensitive or confidential information might be contained in future filings in a case such as this one such that the NCAA would want this. Maybe information about NCAA internal deliberations or processes or practices? I cannot imagine what personal privacy or business interests would be implicated in documents filed in this type of case.

2) In any event, note the unusual breadth of the court's order--all future filings, without the requirement that the NCAA show, and the court find, a specific need for confidentiality as to specific documents. But there may be some countervailing public interest in knowing how the NCAA, a uniquely powerful private entity, operates.

3) There is an ongoing controversy about how "open" pretrial records and processes should be. We discussed a similar case here. But our discussion there was about an effort to unseal a preliminary search warrant that potentially implicated the privacy rights of specific, potentially innocent individuals. The order at issue here is much broader and the privacy concerns (at least from what I am surmising from stories) are not as obvious.

4) The court's specific justification for the sealing--enabling further settlement talks--implicates a further controversy about the purpose of civil litigation. Is the purpose simply to resolve civil disputes by the most efficient means? Or is it a broader purpose to explicate public legal values? If the latter, an order sealing all documents becomes even more troubling.

5) The story included a quotation from the attorney for the state newspaper association expressing concern about the order, although not indicating whether the association would take any action on the matter. Ironically, it is the state (representing UND) that is arguing for open courts and the private entity trying to keep matters closed--a switch on the usual position, at least in civil litigation.


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