Thursday, March 29, 2007, 3/29/2007 12:12:00 PM

Vermont Emissions Trial Gets Back on Track

By Todd
We earlier reported about this case here. The court has issued a 20-page opinion, certainly to the dismay of the automobile industry, that this case will proceed with an item-by-item analysis of information the industry claims constitutes "trade secrets" and the court will apparently rule on those issues as they arise.

The Burlington Free Press is reporting that industry attorneys likely will be able to demonstrate that some pieces of evidence they wish to present are trade secrets. But Judge Sessions flatly rejected claims that those secrets automatically deserve confidentiality during otherwise-open court proceedings.

"There is no absolute right to protect trade secrets from disclosure," Judge Sessions wrote. The judge also rebuffed the industry's suggestion that its lawyers would redact portions of exhibits and transcripts. If necessary, Sessions wrote, that task would fall to the court.

Sessions did note, however, that restrictions on open courts at times are appropriate. Protection of trade secrets may have a higher value than a qualified right of access under the First Amendment in certain cases and under certain circumstances," the judge wrote.

The ruling does not guarantee unfettered access to the trial. Judge Sessions must determine on an item-by-item basis whether trade secrets exist and then weigh the interest in keeping them confidential against the presumption of openness. Judge Sessions ordered industry attorneys to furnish him with copies of "each item for which they seek protection from disclosure at trial, the portion that they wish redacted or sealed, along with an explanation of the information's value to the company and/or its competitors, and the extent to which the information is available or known outside the company."

The court scheduled a hearing for Monday to discuss the issue further. It was unclear Friday (March 23rd) whether the industry would appeal. Charles Territo, a spokesman for the trade group Alliance of Automobile Manufacturers, said the plaintiffs were evaluating the decision and would withhold comment until Monday. "We're still in the process of reviewing it," he said. "If we have anything to say about it, we'll say it at the hearing."

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