Although some reporters have been allowed in the courtroom, exhibits and related documents have been slow to be released, heavily redacted, and testimony closed. As a result, The New York Times filed a Motion to Intervene and for Access to Judicial Records on October 16, 2023; the Motion is supported by Bloomberg. Additionally, The Wall Street Journal, The New York Post, MLex, and Law360 argue that Judge Mehta “hold hearings before closing the courtroom and provide timely access to exhibits and testimony.”
In their Supplemental Memorandum in further support of their Motion, The New York Times provided a proposed redline to the Court’s Order on Posting Materials, and additionally argued that “under the common law a presumption right of access attaches to the entirety of an exhibit admitted into evidence rather than only to the portions shown to a trial witness.” Further, The Times, “reiterates its desire and right to be provided with the public notice and an opportunity to be heard in advance of future courtroom closures”, citing that practicality should not be an issue for the Court as other courts “regularly provide this type of notice and opportunity (as the law requires) to members of the press and public before sealing judicial records or court proceedings.”
Google responded that it had not distributed exhibits to the public for two reasons. The first, that it “did not perceive any obligation to supplement the processes that Plaintiffs have established for disseminating exhibits introduced and used in open court during their cases-in-chief”, and second, that many of the exhibits Google has produced involved third parties that have resisted public exposure.
On October 25, 2023, the Court granted the Motion to Intervene in part. Judge Mehta ordered specific timelines for when the parties would need to release exhibits based on whether they were the plaintiff, Google, or third parties involved in the exhibits. Judge Mehta agreed with The Times’ proposed schedule, bullet number nine, requiring that a third party must respond to the designated press representative’s request for a Cleared Exhibit within two business days, otherwise the parties shall release the Cleared Exhibit. The New York Times also proposed that, with regard to press requests, the parties “make reasonable efforts”, Judge Mehta declined this suggestion, and instead wrote that the parties “shall act in good faith.”
Practicing attorneys should note that this case involves contracts and negotiations between Google and other high-profile corporations, including Apple, which may explain the court’s willingness to close the courtroom and seal portions of the transcript. Practitioners should also note that having non-party motions, such as the example with The New York Times, may help speed along the pace at which exhibits are released to the public.
