This article continues from the end of the article published here on Tuesday, June 4, 2019.
The stipulation adopted by a judge's order in February 2016 in People v. Wells Fargo lines up behind many other secrecy stipulations and orders used in many other jurisdictions. It restricts the use of any evidence marked "confidential," to the lawsuit in which the stipulation is filed. It provides that such evidence may not be used for any other purpose "whatsoever."[1] This was pretty obviously intended to be taken literally. It would mean that the only people who can use evidence marked "confidential" in the People of California v. Wells Fargo case in California are the people involved in that case. No-one else can ever use it, or even see it. Even the people involved in the case named People of California v. Wells Fargo cannot use such "confidential" evidence anywhere else.
So, perhaps it would be wrong to assume without evidence that the L.A. City Attorney's Office shared Wells Fargo's forbidden special interrogatory answers with the federal agencies that subsequently filed actions over the same charges against Wells Fargo. There is absolutely no evidence for that matter that the Los Angeles City Attorney's Office ever shared any information with anyone else that was stipulated to secrecy in that case. This is a much more certain way of keeping a secret than asking a judge to apply the law.
The City Attorney's Office and Wells Fargo also agreed and the judge ordered in that case that if a party considered "competitively sensitive" information to require a "confidential" marking did not mean that anyone else agreed that it was competitively sensitive just because it was marked confidential.[2] In other words, the parties agreed in that case that "competitively sensitive" information could be withheld from public view.
The only party that could possibly care if something was "competitively sensitive" is of course a business which faces competition. In this case, the only party fitting that description is the bank which was accused of abuses in "cross-selling" financial products to the bank's existing customers. By grafting the concept of keeping any "competitively sensitive" secret to the overall idea of court protection, the parties rewrote the Rules to benefit themselves.
Perhaps more accurately, one of them did and the other agreed to it. The Rules say nothing about keeping evidence from the public because the evidence might be "competitively sensitive," of course. The rewritten rule of secrecy agreements like the January 2016 Stipulation would make it possible for a bank, for example, to withhold evidence that might tend to support charges that it is opening accounts in customers' names without the customers' permission or even knowledge. If that kind of evidence got out into the public, it could be misconstrued. Whether misconstrued or true, such evidence would understandably be "competitively sensitive."
What evidence Wells Fargo may have had in the People of California v. Wells Fargo lawsuit is something we may never know. Wells was granted the "right" in this case by this stipulated secrecy order to conceal whatever it knew.
When the judge signed this stipulation into an order, Wells Fargo's "right" became a ruling and not just an agreement.
To be continued .... Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.
[1] Id., ¶ 9, at p. 6.
[2] Id., ¶ 11.a, at p. 6.
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