Sealing everything in sight

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

-- John Philpot Curran, 1790

On Jan. 1 of this year, the Review-Journal quoted then-Chief Justice of the Nevada Supreme Court Bill Maupin on the significance of a new set of rules greatly limiting the power of judges to seal court records and proceedings.

"This year the Nevada Supreme Court has undertaken a number of important initiatives designed to improve the state's judicial system," said Chief Justice Maupin. "This particular initiative underscores the court's belief in open government and our commitment to preserve the public nature of the business of the judicial branch, including its records."

The new rules were adopted after the Review-Journal published a series of articles describing more than 100 civil court cases in which virtually everything had been sealed from public view.

Three and a half months later, almost to the day, after the new rules were promulgated, the active were on the prowl, demanding sweeping secrecy in a civil trial in which the Las Vegas Sands -- which owns The Venetian resorts here and in Macau, as well as other properties -- is being sued by a man who claims the company and its owner Sheldon Adelson reneged on a deal to pay for help to get permission to build the resort in China.

Almost immediately after Review-Journal gaming reporter Howard Stutz filed the customary paperwork with the court to obtain permission for a photographer to be in the courtroom for the trial, an attorney for the Sands protested, in fact going far beyond merely objecting to the presence of a photographer.

In a motion to bar the press from access to the court, Sands attorney, the venerable and much-awed Sam Lionel, argued, "Allowing the media access to the trial is impractical and prejudicial. With the large volume of confidential, private and trade secret information at issue in this case, which should remain protected and non-public, a media presence would result in constant delay and disruption in order to ensure protected information is only discussed or referred to in proceedings not open to the public. Counsel, and the Court, will be unduly burdened by having to guard against inadvertent disclosure." Keeping the public informed is relegated to an inconvenience?

In a very similar case involving the Sands and its Asian dealings that is wending its serpentine way through the court system, the demands for secrecy prompted Discovery Commissioner Bonnie Bulla to discover what is being called in the legal community the "YouTube Doctrine." She was letting everything being exchanged between the two sides in the pre-trial discovery process be handled under seal. When this newspaper objected, Bulla conjectured that Sheldon Adelson's videotaped deposition might end up on the ubiquitous Web site known as YouTube and "undoubtedly cause annoyance, embarrassment and harassment."

Try as I might, I can't seem to find in my dog-eared copy of the Constitution and Bill of Rights the inalienable right to be free of annoyance, embarrassment and harassment. How many of those vaunted trade secrets are really just embarrassing?

Anyway, the Review-Journal countered the latest secrecy request from the Sands with a motion from the much-awed but not venerable (yet to meet the age requirement) Don Campbell.

"Claiming that it will be 'unduly burdened' and further advancing the obscene notion that 'media access to the trial is impractical and prejudicial,' " Campbell unleashed, "Las Vegas Sands seeks to barricade the courtroom doors. Its draconian and blatantly unconstitutional request to seal evidence proffered at trial and otherwise preclude the press and the citizens of this state from attending and scrutinizing the events which are about to occur in a publicly funded hall of justice is unprecedented in the history of this state."

Delivering the coup de grace, Campbell clinched, "Therefore, it comes as little surprise that Las Vegas Sands failed to offer a single case, statute or rule which would permit the Court to grant the relief requested."

(Campbell was a member of the panel that drafted those new rules limiting sealing of court records.)

The judge rejected the Sands' demands to bar the press. As for the rest of the proceedings and presentation of evidence, we'll simply have to remain on alert.

Thomas Mitchell is editor of the Review-Journal and writes on the role of a free press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.