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Order Demanding Oregon Paper Return Docs A Lawyer Accidentally Gave Them Reversed By Judge

DATE POSTED:February 9, 2024

At the end of last month, a federal court judge decided to throw the First Amendment out the window to engage in a bit of the old prior restraint.

At the center of this case (but not the case actually before the judge) was The Oregonian, a newspaper that found itself in possession of documents currently under seal in a long-running discrimination lawsuit against Nike.

A journalist from the Oregonian met with the plaintiffs’ lawyer to discuss the case. This lawyer, Laura Salerno Owens, accidentally sent some documents to the paper that were subject to a protective order. None of that meant anything to The Oregonian, which was not a party to the litigation. It had, at one point, intervened in the case to ask for certain documents to unsealed.

After failing to talk the paper into “returning” the documents, Owens went directly to the court. She was able to secure an order forbidding the publication and demanding the return of the accidentally disclosed documents. The Oregonian was never asked for its input, despite now being treated as subject to protective order that previously had only covered the litigants in this lawsuit.

The order was never published. Instead, The Oregonian was notified via a docket entry by the judge.

ORDER issued by Magistrate Judge Jolie A. Russo: The Court is aware that certain documents marked “Confidential” and “Attorneys’ Eyes Only” have been inadvertently disclosed by plaintiff’s counsel to the Oregonian via e-mail dated January 19, 2024 and that the Oregonian refuses to return the documents. The Oregonian (as party-intervenor Oregonian Media Group) inserted itself as a party-intervenor in this case for the purpose of obtaining disclosure of these and other documents. This Court granted disclosure of the documents at issue on January 5, 2024 (ECF 403 ) which had previously been subject to a protective order. However, the Ninth Circuit stayed the Order pending appeal (ECF 408 ) and the Oregonian is a party to that appeal. Accordingly, the operative protective order requires parties to this litigation to not disclose such inadvertently disclosed documents. (ECF 82 ). Therefore, plaintiff’s motion requesting return of inadvertently disclosed documents and requesting expedited consideration (ECF 410 ), to which defendant joins, is Granted. In order to assure non-disclosure, the Oregonian is Ordered as follows: return the inadvertently disclosed documents by January 31, 2024; agree not to disseminate that information in any way; and to destroy any copies in its possession. 

The order (such as it were) made a curious claim: it said The Oregonian was indeed “party to this case” because of its earlier intervention in an unrelated matter. Therefore, the court reasoned, it was also subject to a protective order that previously only covered Nike and the former employees suing it. But if The Oregonian was truly “party to this case,” the judge had the obligation to involve it in the discussion of the demand for the return of the documents. The judge apparently decided this was a matter that could be resolved without the input of both parties involved though, and went right off the constitutional rails.

The Oregonian intervened again, although this time a bit less voluntarily. It filed a motion [PDF] asking for the clearly unconstitutional order to be dissolved, pointing out the obvious flaws in the legal logic used by the judge in their order.

The Magistrate’s Order states that The Oregonian is a “party-intervenor.” The Oregonian objects to this finding as clearly erroneous because the record indicates otherwise. First, The Oregonian is one of several non-party media intervenors who intervened for the limited purpose of moving to unseal judicial records that the press and public have a right to access. Accordingly, as a non-party intervenor, The Oregonian is not subject to the terms of the operative protective order referenced in the Magistrate’s Order, which the Documents are subject to. The Magistrate’s Order directing The Oregonian to destroy and return the inadvertently disclosed documents should be vacated as it is clearly erroneous and contrary to law.

Second, The Magistrate’s Order presents an unconstitutional prior restraint of a publication, outlined in detail below, which is clearly contrary to nearly a century of settled law. This prior restraint is in violation of the First Amendment Freedom of the Press. For this reason alone, the Order should be vacated.

Lastly, the Magistrate’s Order directs The Oregonian to take certain actions and it never had an opportunity to be heard, a quintessential due process violation, and contrary to this nation’s commitment to an ordered scheme of liberty.

So, multiple constitutional violations, all wrapped up in a single docket entry. Fortunately, the judge overseeing the case has now reversed the magistrate’s order, as Matthew Kish reports for The Oregonian.

A federal judge on Tuesday overturned an order that required The Oregonian/OregonLive to return or destroy documents in its possession and refrain from publishing information from them.

U.S. District Judge Marco Hernández ordered U.S. Magistrate Judge Jolie A. Russo to reconsider her ruling, after the news organization argued the order was an unconstitutional form of prior restraint.

The new docket entry says the “status quo” prior to Russo’s order will remain in place until all involved parties (which now includes The Oregonian) have been heard. No more prior restraint. No more document claw back attempts with the force of law behind. And if the plaintiffs’ lawyer wants to talk a judge into reinstating these orders, they’re going to have to work a lot harder (and in an adversarial environment) to convince the federal magistrate that the Constitution should be subservient to their desire to keep things under wraps.