Blue Shield launched its suit accusing me of disclosing confidential information and demanding a court-imposed gag order a little over a year ago. Since then, we’ve fought over my motion to dismiss the suit under California’s anti-SLAPP law, which is intended to enable defendants to strike down early in the process lawsuits that target free speech activities and don’t have clear merit.
I now have the judge’s ruling, and it’s terrible. She denied my motion, green-lighting the lawsuit. But what led up to the decision was even worse. After I submitted written testimony giving my defense to Blue Shield’s allegations, Blue Shield went to the judge and asked her not to look at nor allow the public to see major portions of it. Blue Shield claimed, falsely, that the material consisted entirely of information I had learned from the company’s general counsel and that it was all attorney-client privileged.
Incredibly, the judge granted the request. Based on nothing more than Blue Shield’s broad claims about the evidence, she sealed from her own and the public’s view everything that the company wanted buried. (Here’s what Blue Shield was allowed to remove from my testimony and supporting diary excerpts.)
Under California law, a court can seal information in legal filings only if it makes certain fact-based determinations, such as that there is an overriding interest in sealing specific material that outweighs the public right to open court records. The judge in my case, however, ruled that the requirement to make such determinations doesn’t apply when a party is seeking to seal records from the court itself or when the targeted information is claimed to be attorney-client privileged.
I’m quite sure that letting Blue Shield blind the court to evidence supporting my defense is not what “justice is blind” is supposed to mean, so I’m appealing. And I’m pretty confidant that the California Court of Appeals won’t affirm a ruling that would give corporations a virtually free hand to suppress evidence from whistleblowers that they'd rather no one see.
October 6, 2017 Update: My appeal brief was filed today.