DEAR JUSTICE THOMAS: A Court Seal Cannot Protect My Trade Secrets, Pleads Florida Political Consultant

Florida may be the Sunshine State but there has been too little illumination into the Florida Legislature’s congressional redistricting process, according to the League of Women Voters of Florida.  In 2010, voters amended the state’s constitution to end gerrymandering in advance of the 2012 decennial redistricting.  Nevertheless, the day after the Governor approved the Legislature’s 2012 redistricting plan, the League and others challenged the redistricting process as intentionally (and therefore unconstitutionally) favoring the Republican party and incumbents and diluting the voting power of African-American and Hispanic voters.

Who drew the redistricting maps?  Attempting to shine light on this question, the League pursued its litigation through early June of this year.  Legislators refused to testify until the Florida Supreme Court ordered their depositions.  A host of irregularities surfaced, including testimony that the key map had been fraudulently submitted through a fake Gmail account.

To demonstrate the existence of a shadow redistricting process designed to subvert the public process, the League requested documents in the possession of Pat Bainter, a political consultant hired by the Republican Party of Florida to assist with the redistricting process.  Bainter resisted disclosing the documents for use at trial, asserting that the documents were confidential both as trade secrets and under the First Amendment’s guarantee of freedom of association.  Florida’s First District Court of Appeal issued two decisions in May 2014 (one granting an emergency stay of the trial court’s order allowing disclosure of the documents and another reversing the trial court’s order “to the extent [it] permit[ed] any degree of disclosure or use at trial of the constitutionally-protected contents of the privileged and confidential documents,”).  On May 27, 2014, the Florida Supreme Court overturned both decisions, releasing a compromise decision:  the League could use the documents at trial but only under seal and in a closed courtroom to protect the documents’ confidentiality.

The next day, May 28, Bainter petitioned Justice Clarence Thomas of the United States Supreme Court to stay the Florida Supreme Court’s decision.  Bainter explained that the documents contained trade secrets such as “confidential data, analysis, and impressions crucial to the Applicants’ business as political consultants, disclosure of which would be harmful to the Applicants’ financial interests if obtained by other Republican or even Democratic political consultants. . . . information on grassroots members, again information competitors would use to pick-off members of an organization the Applicants have carefully organized and maintained. . . . and insight on the Applicants’ direct mailing capabilities and the clients soliciting such services.”  Bainter expressed concern that a sealed proceeding would be inadequate to preserve the confidentiality of his trade secrets.

Justice Thomas did not stay the Florida Supreme Court’s decision before May 29, when the trial resumed.  Bainter testified at trial.  The public was excluded.  On May 30, Bainter withdrew his petition to Justice Thomas.  The trial ended and the decision is expected later this month.  But litigation appears far from over, and an appeal looks likely.

Bainter’s unanswered petition raises an important question we have addressed before:  When trade secrets are entrusted under a protective order or under seal, can we have faith that the trade secrets will be preserved?

Bainter cited a Second Circuit decision that found filing under seal would be inadequate to preserve the confidentiality of the New York Police Department’s undercover law enforcement techniques and procedures.  The court explained that “[c]ourts are public institutions accustomed to making their files open to all comers, and their methods of preserving confidentiality are relatively unsophisticated and altogether too fallible” and that this is especially true in “high-profile litigation covered by a large and intrepid press corps.”  The court documented instances across the country ranging from divorce cases to cases related to the 9/11 attacks in which the judiciary, whether inadvertently or otherwise, allowed public access to sealed documents.

If filing under seal is not good enough for the NYPD, is it good enough for you?  And what is the alternative?  Bainter considered risking being held in contempt of court to protect his trade secrets, although ultimately he placed his trust in the trial court.  Most of us routinely make the same decision.  We believe in the judicial process but cannot ignore the risks pointed out by the Second Circuit.