Judge Unseals Affidavit, Lowers Boom on Counsel

     (CN) – Chief Judge Frank Easterbrook lifted the “veil of unexplained secrecy” by unsealing an affidavit in a labor dispute that drew harsh attorney criticism from the 7th Circuit judge earlier last month. This time, he blasted plaintiff counsel for missing another filing deadline. “It is hard to understand why lawyers who have lost their case once by disregarding deadlines would tempt fate again,” he said.




     The case stemmed from a 2003 lawsuit against Dominick’s Finer Foods and affiliates, which the district court dismissed.
     The plaintiffs later moved to reopen the case based on “excusable neglect,” which they supported with an affidavit filed under seal.
     The district court reinstated the case, but again found for the defendant. The plaintiffs appealed, but asked the court to keep the affidavit sealed, because it “would potentially cause embarrassment and affect [counsel’s] personal and professional reputation by disclosing personal matters.”
     Easterbrook expressed doubt that the plaintiffs had valid reasons for maintaining secrecy.
     “If the nature of the neglect reflects poorly on counsel, that supports disclosure rather than confidentiality,” the judge wrote in his earlier chambers decision.
     He added: “A tenor who can no longer hit high C can’t conceal that fact from the public, and a lawyer who has lost focus on his clients’ welfare must like face exposure.”
     Easterbrook invited Dominick’s Finer Foods to decide if it wanted to challenge the lower court’s decision to reopen the case. It did.
     Although the plaintiffs had a week to respond, they missed the deadline by a few days.
     “Plaintiffs neither asked for extra time nor explained the delay,” Easterbrook wrote. “That insouciance toward deadlines continues a pattern established in the district court – a pattern that was the apparent reason for that court’s initial decision in defendants’ favor.”
     In their response, the plaintiffs asked the court to remove the affidavit from the appellate record, as it wasn’t important to the appeal.
     But Easterbrook noted that defense attorneys never saw the affidavit, even though it constituted the basis for reopening the case.
     “A judicial decision based on information that has been withheld from counsel is extraordinary and requires a compelling justification, which no one in this case has articulated,” the judge wrote.
     “My earlier opinion explained why secrecy appears to be unwarranted, and I take plaintiffs’ silence in their response as acknowledgment.”
     Easterbrook orded the affidavit unsealed and placed in appellate records.
     

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