United States v. International Business Machines Corp.

67 F.R.D. 40, 20 Fed. R. Serv. 2d 227, 1975 U.S. Dist. LEXIS 12544
District Court, S.D. New York·Decided May 2, 1975·No. No. 69 Civ. 200 (DNE)·Published·Cited by 75 cases

Opinion

OPINION

EDELSTEIN, Chief Judge:

The deposition program in this antitrust action involving hundreds of nonparty witnesses gives rise to the instant opinion. These depositions are governed by the Publicity in Taking Evidence Act, 15 U.S.C. § 30 (1970), which mandates that depositions taken in a suit in equity brought by the United States under 15 U.S.C. §.§ 1-7 shall be open to the public as freely as are trials in open court and that no order excluding the public from such proceedings shall be valid or enforceable. Aware, however, that these depositions might expose and explore trade secrets or other confidential research, development, or commercial information, this court devised a procedure for temporarily protecting this information by allowing the nonparty deponent to exercise his discretion in designating portions of the deposition which should be protected within the guidelines of Fed.R.Civ.P. 26(c)(7) until the court could rule on the proper treatment of the testimony and exhibits.1 Three requests for the con[43]*43tinued sealed protection of commercial information contained in certain deposition testimony and deposition exhibits are currently before the court; whether they should remain sealed is the subject of this opinion.2

The statutory mandate that depositions taken in a suit in equity brought by the United States under 15 U.S.C. §§ 1-7 shall be open to the public as freely as are trials in open court has enjoyed little judicial discussion, and this court is aware of no precedential judicial guidance for protecting confidential information disclosed in depositions governed by the statute.3 Nevertheless, a plain reading of the statute indicates that if the public may be excluded during trial or if evidence may be received there in camera, the same may be possible during depositions governed by the statute. Should a court determine to give in camera protection to some deposition testimony and exhibits received in a government antitrust suit, it should be guided by the considerations leading to the in camera reception of evidence at trial. Therefore, a review of these considerations and of the cases where in camera proceedings have been allowed is necessary for determining guidelines for restricting the public.

In criminal proceedings the sixth amendment to the Constitution guarantees the criminal defendant a public trial. But occasions arise prompting courts to limit or bar the general public from attending the trial even against the wishes of the accused in order to implement important policies which outweigh the danger of a possible miscarriage of justice resulting from the judicial proceedings being conducted in even partial secrecy.

Portions of a pretrial suppression hearing have been conducted in camera in order to preserve the confidentiality of airline “skyjack profiles” used to alert airline personnel and U.S. Marshals.4 Similarly, to protect the identity [44]*44and safety of witnesses, courts have received evidence in camera.5 And to insure the orderly progression of an accused’s trial the court has properly removed disorderly spectators.6 A criminal defendant’s right to a public trial has also been abridged in order to protect a witness from embarrassment, harassment, or loss of reputation where the victim of a sex offense must testify to the lurid details of the crime and the witness is of tender age or cannot be freed from the embarrassment of testifying to material facts of the case.7

Even commercial information may be offered some in camera protection in the criminal proceeding. Stamicarbon, N. V. v. American Cyanamid Co., 506 F.2d 532 (2d Cir. 1974). During the criminal contempt trial of American Cyanamid Co., Stamicarbon, the owner of a secret process, sought to require the receipt of evidence relating to this trade secret in camera. Although the district court judge found that Stamicarbon would suffer irreparable injury from disclosure, he felt that as a matter of law he lacked the power to conduct any of the criminal proceedings in camera against the defendant’s wishes. Although the court of appeals affirmed the lower court’s denial of a preliminary injunction, it advised the district judge that he did have the legal power to conduct limited in camera procedures if in the course of the contempt trial he should find that Stamicarbon was likely to suffer irreparable injury and that the protection of its secrets could be achieved with minimal disruption of the criminal proceedings.

Most of the cases addressing the extent to which a trial must be public arise in the context of criminal litigation where the public trial is constitutionally guaranteed. In the context of civil proceedings, the case law, some state statutes, and the Federal Rules of Civil Procedure also speak to the issue.

Rule 77(b) requires that all trials upon the merits shall be conducted in open court. Rule 43 specifies that the testimony of witnesses shall be taken orally in open court, unless otherwise provided by the rules. But the rules themselves do not suggest when a court in its discretion should or may go in camera to receive testimony.

[45]*45Some state statutes and constitutions have also extended a guarantee of public trial to civil litigation; but they generally provide that trial may be conducted in private under specially enunciated circumstances.8 Moreover, such statutes have not been read to preclude receiving evidence in camera where it is found to be in the interest of justice and the rights of the parties or of the witnesses can not otherwise be protected. This latter, more general judicial concern was the basis for protecting trade secrets in State ex rel. Ampco Metal, Inc. v. O’Neill, 273 Wis. 530, 78 N.W.2d 921 (1956).

In Ampco it was held that evidence as to the nature of a party’s secret process or formula is appropriately received in camera despite a state statute specifying that all trials shall be public except where a cause of a scandalous or obscene nature is at issue. The Supreme Court of Wisconsin ordered the lower court to receive evidence as to the plaintiff’s alleged secret process in camera because unless the testimony as to plaintiff’s claimed trade secrets was taken in camera, Ampco would be denied any effective remedy for the wrong it had sustained, assuming the truth of the allegations of its complaint.

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United States v. International Business Machines Corp., 67 F.R.D. 40, 20 Fed. R. Serv. 2d 227, 1975 U.S. Dist. LEXIS 12544 (S.D.N.Y. 1975).

67 F.R.D. 40 (United States v. International Business Machines Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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