We’re not here to criticize lawyers and judges. Really, no. But these might have saved themselves a remand had any of them read the Arizona Rules of Civil Procedure.
Omitting the tiresome details, which are most of them, the parties settled this personal-injury case involving a tire (see what we did there?). CAS then intervened in order to open sealed records. The trial court had ordered them sealed after finding that they contained Goodyear trade secrets. The intervenor argued the public interest, that the tire was dangerous, that Goodyear and its lawyers were bad guys, etc. (The Court of Appeals does suggest that the lawyers’ actions were less than optimal. There has apparently been a fair amount of controversy involving these tires and, reading between the lines, there was some serious maneuvering going on here. Things happened that should raise eyebrows but the defense lawyers were not the only ones involved.) The trial court, relying on federal law cited by both parties, agreed. It found that “Goodyear’s interests did not outweigh the public’s need for access,” especially because Goodyear did not “particularize” how it would be harmed and because the information was “old.” The court authorized release of the records. Goodyear appealed.
It seems that of the six law firms involved at the trial-court level none managed to point the court to the applicable Arizona rule. (In fairness to the Arizona firms involved, its a fair bet that none of the lawyers doing the heavy lifting practice here. That’s an old problem with cases that involve national counsel; always double-check your out-of-state colleagues’ homework.)
The Court of Appeals reverses. By this time someone had mentioned Rule 5.4(c)(2). Documents can be sealed only if the court finds, in effect, that a need for a seal “overcomes the right of public access.” Under Rule 5.4(h), unsealing is governed by the same standards. But the trial court did not make a 5.4 analysis in ordering the unsealing. Instead, it used some sort of balancing test. It did, however, find that there were trade secrets involved — which the uniform act, adopted in Arizona, requires be kept secret. Age doesn’t vitiate them (which is a main reason why manufacturers keep stuff secret rather than patent everything). Their disclosure “necessarily implies that particularized harm exists because trade secrets derive their value from their secrecy.” “[A] court may expose trade secrets only in extraordinary circumstances, such as when the information has lost the independent economic value created by its secrecy, or when secrecy represents a significant threat to the public welfare.” An intervenor has a “heavy burden to show why the public needs access to confidential trade secrets.”
The court remands for a 5.4 analysis. But it puts its thumb on the scale by saying that since a summary of the secrets was already leaked “it is difficult to see what marginal benefit to the public would be achieved by unsealing the remaining trade secrets.”
Yes, it should probably have occurred to the trial court that you can’t just “balance” away a right to property, intellectual or otherwise. But in a strange land you depend on your guides — and the reality is that nowadays almost all civil law, not just its specialized branches, is off the edge of most trial judges’ maps. The rules, though, shouldn’t be.