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Circuit Court reverses stay on producing public records

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A northern Indiana District Court was wrong in granting a Wisconsin city’s motion for a stay, which allowed the city to withhold public records from the bank suing it for violating securities law, the 7th Circuit Court of Appeals concluded today. The issue was whether the order issued by a state court for the city to produce the documents could be stayed by federal law because the request constituted discovery proceedings.

American Bank was one of several owners of bonds issued by the City of Menasha, Wisc., to finance the conversion of an electric power plant it owned to a steam-generated plant. The project went way over budget and the city defaulted on the bonds. The bond owners filed a class-action suit against Menasha, claiming it violated federal securities law by not disclosing to prospective buyers of the bonds material information about the conversion project.

Shortly after the suit was filed, American Bank asked to inspect public records relating to the conversion project pursuant to Wisconsin’s Public Records Law. The city was slow to respond, so a state court ordered the city to comply with the request. The city asked the District Court for a stay under subsection 4(b)(3)(D) of the Securities Litigation Uniform Standards Act of 1998. This act amended the Private Securities Litigation Reform Act to let District Courts “stay discovery proceedings in any private action in a State court, as necessary in aid of its jurisdiction, or to protect or effectuate its judgments, in an action subject to a stay of discovery pursuant to [section 78u-4(b)(3)(B), quoted above].”

The Circuit judges had to decide whether this provision authorizes the District Court to enjoin a private securities plaintiff from gaining access to records that a state’s public records law entitles members of the public to see and copy at their own expense. The judges rejected Menasha’s argument that American Bank was engaged in discovery and can’t appeal the stay unless it can invoke one of the exceptions to the rule against interlocutory appeal of discovery orders. The 7th Circuit instead agreed with American Bank that the stay is not the stay of a discovery order and it can only be an injunction. Only a stay of discovery is authorized by the SLUSA, wrote Judge Richard Posner in American Bank v. City of Menasha, et al., No. 10-1963.

“In any event there is no expense to the defendant, as he doesn’t have to rummage through his files to respond to a demand for information - at least qua defendant; it is happenstance that in this case the custodian of the records and the defendant are one and the same - the City of Menasha,” wrote the judge. “The City shouldn’t be allowed to use its dual status to gain an advantage over other defendants in private securities litigation. And while it’s true that if American Bank uses any of the information it gleans from the records to oppose the motion that the City has filed to dismiss the class action suit the City’s lawyers will have to analyze the information, so will American Bank’s lawyers; the analysis costs are symmetrical.”

The city also wanted the stay to prevent American Bank from suggesting to a newspaper that it request and publish the records or even hint at a suggestion. Making the stay that broad would “create a precedent of unmanageable scope,” wrote the judge. He called the city’s position wrong and futile.

“Of course if states create discovery procedures but call them ‘requests for public records,’ perhaps by deeming all records in the files of private corporations public, this would not defeat a motion for a stay. Substance trumps form. But in this case substance and form coincide,” wrote Judge Posner.

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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