Saturday, February 25, 2006, 2/25/2006 08:28:00 AM

Secret Opinions in Trade Secrets Cases? Not in the Seventh Circuit.

Hicklin Engineering v. Bartell, slip op. (7th Cir. Feb. 22, 2006) concerned, by all appearances, a fairly mundane trade secrets dispute between a company in the transmission testing business and a former independent contractor who went into competition with plaintiff. What was unusual was the fact that the district court (in this case the magistrate-judge) issued all the opinions in the case in secret.

This was not to Judge Easterbrook's liking on appeal. He ruled that:

"Redacting portions of opinions is one thing, secret disposition quite another. We have insisted that litigation be conducted in public to the maximum extent consistent with respecting trade secrets, the identities of undercover agents, and other facts that should be held in confidence."

He also offered a cogent reason why:

"What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification."

The court ruled that all opinions and briefs would be filed publicly, in parallel redacted versions if required to protect trade secrets.

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