Post by Okwes on Jul 24, 2007 8:52:03 GMT -5
Documents to remain confidential in North Dakota case
BISMARCK, N.D. -- The NCAA may keep documents confidential in a legal
fight over whether it may ban the University of North Dakota's Fighting
Sioux nickname in postseason play, a judge says.
Northeast Central District Judge Lawrence Jahnke said Friday that the
NCAA's request was "not unreasonable." He said its reasons for secrecy
were buttressed by a manual that Attorney General Wayne Stenehjem's
office produces to help public officials interpret the state's open
records laws.
Jahnke rejected Stenehjem's argument that granting the NCAA broad
confidentiality for documents that the state obtains in the lawsuit
would violate North Dakota's open records laws.
Stenehjem said the judge's decision could not be appealed.
"We made a good faith argument on behalf of the state and on behalf of
the public's right to know," Stenehjem said late Friday. "The judge
disagreed. That's what happens when you go into court sometimes."
Wickham Corwin, a Fargo attorney who is representing the NCAA in the
case, could not be reached for comment immediately Friday night.
Stenehjem is suing the NCAA over the association's decision to penalize
UND for its Fighting Sioux nickname, which the association has deemed
"hostile and abusive" to American Indians. He got a court order to delay
the penalties until the lawsuit is resolved.
In court filings, the NCAA has said it wants to keep communications
among the 20 members of its executive committee confidential as it
discloses information the state wants in the lawsuit.
The secrecy leaves committee members able to "brainstorm, weigh options,
consider alternatives, debate strategies, engage in candid exchanges and
otherwise explore solutions to issues facing the association," the
association's lawyers said in a court filing.
Jahnke's ruling says the state has not shown it will be harmed by
granting the NCAA's request.
"In fact, granting the motion for protective order ... will facilitate,
foster and encourage timely responses to discovery requests by all
parties to this litigation, without the need of continuing court
involvement," Jahnke said.
The judge's ruling says the NCAA may designate any document as
confidential as long as it has a "good faith basis" for doing so.
Stenehjem may challenge any confidentiality designation, Jahnke said,
and he will resolve the dispute if necessary.
His order does not restrict the ability of either Stenehjem or the NCAA
to use confidential documents during the trial, although it says the two
sides would have to work out procedures for handling them.
When the litigation is over, the confidential documents in the state's
possession must either be returned to the NCAA or destroyed, Jahnke's
ruling says.
Stenehjem said the ruling "doesn't mean the records will be forever
closed." It gives the state the option of challenging whether an NCAA
document should be confidential, both before the trial and after it
ends, the attorney general said.
"We retain the right, during the course of the proceeding, if we think
that the NCAA is abusing the terms of the order, to go in and seek
relief from the court," Stenehjem said. "And at the conclusion of the
litigation, I would anticipate that we'll ask the court to make a ruling
on what information in the file ought to be made public."
Jahnke's order covers documents obtained by both sides as they demand
information from each other in preparation for a trial on the lawsuit,
which is scheduled for December in Grand Forks. The NCAA has already
disclosed more than 4,000 documents, most of which it says are not
confidential.
His ruling quotes a manual that Stenehjem's office has published to help
public officials interpret the state's open records law as supporting
the NCAA's case.
In a footnote to his decision, Jahnke quotes the manual as saying
records acquired by the attorney general's office from a nonpublic
entity are exempt from the open records law "if the records are
necessary ... to further ... litigation by the state, considered
confidential or privileged by the provider of the records, and the
privilege of confidentiality has not been waived."
"The information being sought by the state is indeed in pursuit of
litigation it has initiated against the NCAA, and clearly the NCAA is
seeking protection of some of that information, which is internal to the
organization and considered by it to be confidential," the judge wrote
in his ruling. "Therefore, that information is exempt by the attorney
general's own opinion."
BISMARCK, N.D. -- The NCAA may keep documents confidential in a legal
fight over whether it may ban the University of North Dakota's Fighting
Sioux nickname in postseason play, a judge says.
Northeast Central District Judge Lawrence Jahnke said Friday that the
NCAA's request was "not unreasonable." He said its reasons for secrecy
were buttressed by a manual that Attorney General Wayne Stenehjem's
office produces to help public officials interpret the state's open
records laws.
Jahnke rejected Stenehjem's argument that granting the NCAA broad
confidentiality for documents that the state obtains in the lawsuit
would violate North Dakota's open records laws.
Stenehjem said the judge's decision could not be appealed.
"We made a good faith argument on behalf of the state and on behalf of
the public's right to know," Stenehjem said late Friday. "The judge
disagreed. That's what happens when you go into court sometimes."
Wickham Corwin, a Fargo attorney who is representing the NCAA in the
case, could not be reached for comment immediately Friday night.
Stenehjem is suing the NCAA over the association's decision to penalize
UND for its Fighting Sioux nickname, which the association has deemed
"hostile and abusive" to American Indians. He got a court order to delay
the penalties until the lawsuit is resolved.
In court filings, the NCAA has said it wants to keep communications
among the 20 members of its executive committee confidential as it
discloses information the state wants in the lawsuit.
The secrecy leaves committee members able to "brainstorm, weigh options,
consider alternatives, debate strategies, engage in candid exchanges and
otherwise explore solutions to issues facing the association," the
association's lawyers said in a court filing.
Jahnke's ruling says the state has not shown it will be harmed by
granting the NCAA's request.
"In fact, granting the motion for protective order ... will facilitate,
foster and encourage timely responses to discovery requests by all
parties to this litigation, without the need of continuing court
involvement," Jahnke said.
The judge's ruling says the NCAA may designate any document as
confidential as long as it has a "good faith basis" for doing so.
Stenehjem may challenge any confidentiality designation, Jahnke said,
and he will resolve the dispute if necessary.
His order does not restrict the ability of either Stenehjem or the NCAA
to use confidential documents during the trial, although it says the two
sides would have to work out procedures for handling them.
When the litigation is over, the confidential documents in the state's
possession must either be returned to the NCAA or destroyed, Jahnke's
ruling says.
Stenehjem said the ruling "doesn't mean the records will be forever
closed." It gives the state the option of challenging whether an NCAA
document should be confidential, both before the trial and after it
ends, the attorney general said.
"We retain the right, during the course of the proceeding, if we think
that the NCAA is abusing the terms of the order, to go in and seek
relief from the court," Stenehjem said. "And at the conclusion of the
litigation, I would anticipate that we'll ask the court to make a ruling
on what information in the file ought to be made public."
Jahnke's order covers documents obtained by both sides as they demand
information from each other in preparation for a trial on the lawsuit,
which is scheduled for December in Grand Forks. The NCAA has already
disclosed more than 4,000 documents, most of which it says are not
confidential.
His ruling quotes a manual that Stenehjem's office has published to help
public officials interpret the state's open records law as supporting
the NCAA's case.
In a footnote to his decision, Jahnke quotes the manual as saying
records acquired by the attorney general's office from a nonpublic
entity are exempt from the open records law "if the records are
necessary ... to further ... litigation by the state, considered
confidential or privileged by the provider of the records, and the
privilege of confidentiality has not been waived."
"The information being sought by the state is indeed in pursuit of
litigation it has initiated against the NCAA, and clearly the NCAA is
seeking protection of some of that information, which is internal to the
organization and considered by it to be confidential," the judge wrote
in his ruling. "Therefore, that information is exempt by the attorney
general's own opinion."