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June 18, 2013
The New York Times and the Los Angeles Times have filed an application to intervene with the California Court of Appeals asking that the appellate record in the Todd McNair vs. NCAA case be unsealed.
Acting on behalf of the two major media organizations, the law firm of Davis, Wright Tremaine, considered the nation's top media law practice with more than 500 attorneys in offices from LA to San Francisco, from Anchorage, Portland and Seattle to Washington, D.C., New York and Shanghai, filed both its request to intervene along with a 7,039-word argument that, with its extensive exhibits attached, totals 227 pages.
Included are 18 pertinent articles on the USC/McNair/NCAA case -- three from USCfootball.com, as well as 29 federal and state law precedents that the attorneys for the two media organizations argue show that there is no way material filed with the court in this case should be kept out of view from the general public.
"Court records are presumptively open," the newspapers argue, "under the First Amendment and California Rules of Court" and "the NCAA has not satisfied the stringent requirements of rules of the court . . . for sealing briefing and court records."
They summarize the argument this way: "On June 3, 2013, the NCAA filed an extraordinarily overbroad and improper sealing motion in this Court, which asks to keep secret seven hundred pages of the appellate reord, as well as to redact key portions of its opening brief to this Court."
Then they note one by one, the items the NCAA wants to keep secret, saying "the NCAA must satisfy the five-part test for sealing to keep confidential the records" and it cannot.
Those items amount to "hundreds of pages of the appellate record, with significant portion of its Opening Brief. These documents include interview transcripts, deposition transcripts, and declarations of key individuals, including Mr. McNair and Mr. Lake, emails from the NCAA enforement personnel relevant to Mr McNair's allegations of actual malice by the NCAA; all of the opposition brief in the trial court, including routine legal argument; and even Mr. McNair's response to the notice of allegations, which is publicly available on the Internet. This broad demand for secrecy cannot possibly satisfy the constitutional requirement that any sealing by the Court must be narrowly tailored to support a compelling interest"
They note further that "The NCAA's remarkable bid for secrecy comes in a case of substantial public interest." They also point out that "the NCAA delayed until the last possible day to file its brief on appeal -- even to the point that this Court warned that the apeal might be dismissed if the NCAA did not file an Opening Brief by June 5 -- meaning that the records relied on by the trial court have been kept under seal for more than six months."
California has a "long history of protecting the right of access to court records," the newspapers argue, and in situations where the interest in sealing was "far stronger than those offered by the NCAA here."
In California, such access has been "elevated to a constitutional level," they note, with a "demanding standard" that "the NCAA cannot meet."
The argument is this, they conclude, based on California law and precedent: "Public policy requires public records to be available for public inspection to prevent secrecy in public affairs."
It's that simple.
Filed together with the argument for intervention opposing the NCAA's motion to seal is an Application to Intervene. Both were filed Monday with the Court's Second Appellate District, Division Two but then reassigned to the Third Division, said Thomas Burke of Davis Wright Tremaine.
In discussing the timing going forward, Burke said he doesn't necessarily foresee that a hearing will be required, just a response from the NCAA that could be filed in a couple of weeks. In that scenario, with a favorable ruling, Burke said he could imagine the file unsealed as soon as three weeks.
Here's the filing with numerous details and great reading for anyone interested in how the NCAA works when it goes to court. There's a lot here. Don't miss the exhibits.
Application to Intervene
Press Representatives Opposition to NCAA's Motion To Seal Appellate Record
Dan Weber covers the Trojans program for USCFootball.com. You can reach him at email@example.com.