This article continues from the end of the article published here on Wednesday, June 5, 2019.
- Under Secrecy agreements and Secrecy orders like the ones in the People of California v. Wells Fargo case, what was marked "confidential" purportedly stays "confidential" even if it is put in front of the judge. California Rules of Court 2.550 and 2.551 were written to cover the case of what evidence can be sealed and how someone can go about asking a judge to seal that evidence. However, neither of these Rules applies to the evidence exchanged between the parties as a lawsuit goes forward, which again is called discovery.
Under the Rules of discovery that are meant to apply to all cases, everybody drops the argument that they have a "right" to conceal evidence once they argue that previously concealed evidence is a part of their case. This includes when they give the judge the evidence they previously marked "confidential" in an effort to get a favorable ruling from the judge on one of their motions.
Secrecy agreements and their secrecy orders like the ones in the People of California v. Wells Fargo case make the exchange of evidence during litigation more of a joint exercise in concealment than a concerted effort at discovering the truth, or at least discovering evidence. Using these agreements and orders, people can show concealed evidence to a judge, but not to the public, just by putting the evidence into an envelope marked "CONFIDENTIAL--FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED."[1] This simply could not be done without the secrecy agreements and their orders rewriting the Rules.
- Keeping control over the evidence marked "confidential." The secrecy stipulations in this case, and the January 2016 agreement in particular, were also written to keep control of the "confidential" evidence after the case was over. The January stipulation provides that it shall always be "binding" unless the party that designated the evidence as confidential, or a judge, says otherwise.[2]
It apparently was not enough to make the January stipulation in this case endless, however, even after it became a judge's order in February 2016. The agreement and its order also add a provision typically found in secrecy stipulations-turned-into-secrecy-orders in many other cases, to the effect that once the case ends, "confidential" evidence must either be returned to the party that designated it "confidential," or it must be destroyed.[3] In short, the people that possess the evidence marked confidential are required to give it up at the end of that case. They cannot make the evidence public. The evidence can only be used for that one case. When that one case ends, then the way that the thinking goes behind the secrecy here, there is no longer any reason to hold onto the evidence. The public has no interest in it, according to the lawyers who write these agreements, it seems, and the public seemingly has no dog in this fight either, according to the judges who enable this behavior by validating these secrecy agreements.
This is the end of a three-part series of articles on representative secrecy stipulations that the parties agreed to in one case, the case of People of California v. Wells Fargo. This is not the end of secrecy stipulations, of course.
Not by a long shot.
Not yet.
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[1] Id., ¶ 18, at p. 8.
[2] Id., ¶ 21, at p. 8.
[3] Id., ¶ 22, at p. 9.
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