I would like to know whether it is considered contempt of court (in England, or anywhere else with common law) for a plaintiff to publish documents which they have obtained via disclosure from a defendant or intervenor.
The particulars of the case that prompt this question are as follows: a plaintiff sues his bank in a county court. At a pre-trial hearing, the judge joins a third party, a political party, to the case as an intervenor, and orders the plaintiff, the defendant, and the intervenor to disclose certain documents to each other. One day before the trial, the plaintiff publishes two of the documents they were disclosed (one letter from the intervenor to the court, and another letter from the intervenor to the defendant) via a mass mailing to all members of the political party. Also, some weeks after the trial, the plaintiff again publishes the documents, this time in a printed journal distributed to public libraries and sold to members of the public.
I have in my possession a letter of complaint from the intervenor to the judge handling the case which alleges that the first act of publishing constitutes contempt of court:
Was the intervenor correct in their claim that the first act of publishing was contempt of court? Should the judge have found the plaintiff in contempt? What about the second act of publishing, which was not just to members of the intervenor’s organisation but to the public at large?
In New York (and I believe in the US, generally), there is no prohibition against public disclosure of documents and evidence obtained in civil lawsuit discovery, unless there is a confidentiality order, confidentiality stipulation, or other specific legal restriction in place. (Criminal law has different rules.)
Very commonly the parties to commercial litigation will agree to a confidentiality stipulation, and frequently ask the judge to “So Order” the stipulation to make a violation of the order contempt of court. If the parties cannot agree to the terms of confidentiality, a party may ask for a confidentiality order, which the courts are inclined to issue in cases where there is a genuine public policy against release like trade secrets. However, the courts may refuse to order confidentiality where it is just documents that one party would rather prefer not to be made public.
There is a slightly different calculus where the question is whether documents submitted in connection with court papers (as opposed to merely exchanged between the parties) may be sealed. Due to the policy in favor of public trials, courts usually require a strong showing of the need for confidentiality before they will order filed documents to be sealed.
I don’t know the law in England, but I understand that English law allows for much more restricted pre-trial disclosure than the free disclosure generally available in the US. In that connection, I would not be surprised that there are more restricted rules for the public release of documents that are exchanged.
What Billdo said is generally true under California law, as well. Because I suspect that the OP is a real life legal situation, I’ll go no farther, but simply note two oddities. First, the OP discusses a lawsuit, but purports to quote a letter regarding an arbitration. Generally, in the US, judges do not preside over arbitrations. Arbitrations are private events, wherein the parties agree to arbitrate, select an arbitrator to preside over the event (usually, but not always, the arbitrator is a retired or former judge), and agree to be governed by the rules of arbitration. Incidentally, those rules may or may not include confidentiality provisions.
The second thing that’s odd is writing a letter to the judge. In California, we generally do not write letters to the judge (although we would to an arbitrator). I understand, however, that it is common practice in New York to write a letter to the judge to alert him or her to something.
No, I’m just reviewing some old documents I found. The case in question is almost fifteen years old.
This may simply be a difference in terminology, or perhaps ignorance on the part of the intervenor (who in this letter was writing directly instead of through their solicitor). The case was indeed a civil trial held at a court.
The case was tried in an English county court, which is similar to a small claims court in North America. These courts use simplified legal procedures and the litigants typically do not have representation. For this reason I expect it would not have been unusual to communicate directly with the judge.
I can’t comment on the English law on this point, but in Canada, my understanding is that in most provinces, the documents disclosed to the other parties in a law suit are covered by form of litigation privilege: they can only be used for purposes related to the litigation, and publicly disclosing the other party’s documents to some third person unrelated to the litigation may be held to be contempt of court, depending on the circumstances.
The rationale for this rule is that the disclosure of private documents to the other parties to a lawsuit is not voluntary, but done under the compulsion of law, for the purpose of the litigation. A party cannot use a civil action as a way to obtain access to another person’s private documents, and then be entitled to use them for whatever purpose they wish.
The last time I looked at this issue, there was some uncertainty in the case-law about whether the privilege was implicit and automatic, or if the party disclosing the documents had to assert the privilege. There were also some differences between the courts in different provinces. My recollection was that the trend in the case-law was towards an implicit and automatic privilege, but I could be wrong on that.
This applies at the pre-trial stage. The rules change once a document is entered into evidence - it then becomes part of the court record and access to the document is then under the control of the court. But not all the documents that are disclosed at the pre-trial stage are entered into evidence.
As always, none of this is meant as legal advice, but just to comment in a general discussion on the operation of the legal system. As the posts in this thread show, there can be different approaches to this issue, depending on the jurisdiction.
In New York, it is reasonably common to write a letter to the judge in litigation, with a copy to all opposing counsel. It is often on some minor administrative or procedural matter, such as the scheduling of a hearing or conference, requesting an interpreter, and the like.
Some New York state and federal judges request that instead of making a formal motion, the party seeking to make a motion request a pre-motion conference by letter which specifies the basis for the motion (usually with strict page limits). The judge will typically hold either a telephone or in court conference to discuss whether the motion is really necessary, or whether it can be avoided by agreement of the parties or other means. New York courts have ruled that a judge cannot prevent a party from making a formal motion if the party desires to do so, but a surprising number of motion become unnecessary or inadvisable when the judge takes an active interest, gives a preview of his or her views on the point, and/or knocks the parties heads together.
In California, we’d address those kinds of matters via a stipulation among the parties, submitted to the judge with a proposed order. I’ve litigated in California courts with New York counsel as co-counsel, and with New York counsel as opposing counsel. They are uniformly surprised that we don’t write to the judge. Opposing counsel did that once (after I’d told him not to, and why), and was rebuked. I, of course, took no satisfaction in that.
Northern Piper, that’s very interesting. It seems like a common sense approach, but in the U.S. our presumption is that the documents are available. The party wanting to prevent open dissemination must seek a protective order, supported by a showing of good cause, to preclude the use of his documents outside the litigation.
If counsel can agree, there’s no problem with a stipulation, which will almost always be “So Ordered” by the judge where appropriate. However, I don’t know how it is in California, but in New York it has been known to happen that counsel at times may not agree about matters large or small.
Yes, in that case, we either file a motion or get an agreement on a date for a status conference. Which we’ll file as a Joint Stipulation Re Status Conference. So it all kind of ends up in the same place. And it’s funny, but we also have that pesky problem with getting opposing counsel to see things our way.
So it sounds like the Canadian approach puts a greater premium on the privacy of a litigant’s documents. Is it just assumed that being involved in litigation sucks generally, and the loss of privacy is just one more sucky thing? :dubious:
However, in response to Billdo’s comment in post 2 about more restricted pre-trial disclosure - we do have to disclose the existence of all documents in the client’s possession that are related to the litigation, even those covered by some sort of privilege, and allow opposing counsel access to all those that are not covered by privilege. Disclosing the existence of privileged documents is to allow opposing counsel the chance to challenge the privilege, if they think privilege should not be available.
The main difference in pre-trial disclosure is the number of pre-trial examinations for discovery. My impression from previous discussions with U.S. lawyers is that you can examine a large number of potential witnesses from the other side. Here, and I think in England, opposing counsel can only examine one witness pre-trial. If the party is a natural person, then he/she is examined; if it’s a corporate party or government, the party gets to propose a particular person from within the organization as the proper person for the other side to examine.
As to the letter to the judge, it varies. If there is something that needs to be brought to the attention of the judge that doesn’t require a motion, the practice in my jurisidiction is to write to the local registrar, cc. opposing counsel, with the relevant information, and request that it be brought to the attention of the judge. If it’s something a bit unusual (e.g. - filing a supplemental brief after oral argument to address a point raised in argument by the judge), I’ll usually discuss it first with opposing counsel. However, I’ve heard from lawyers in other jurisdictions that they just write that kind of letter to the judge, cc. opposing counsel. (I think I got caught out by that practice once in a Federal Court matter, years ago - recollection is fuzzy, but I remember being surprised that letters went to the judge.)
