On June 30, 1998 federal judge Susan Webber Wright rescinded her order from October 30, 1998 that sealed the Paula Jones sexual harassment case against President Clinton.

The gag was placed to ensure that both sides got a fair trial, and after her summary judgment on April 1, 1998 that threw out the case, she argued that the gag had effectively served its purpose.

But her lifting of the gag order was not without caveats. She ordered that any references to "Jane Does" -- confidential witnesses in the case -- be kept sealed and that any videotapes of depositions in the case would be kept from the public.

However, the transcripts of the depositions were part of the material that could be unsealed.

On July 9, Wright delayed unsealing the case after Clinton lawyers filed a request for her to reconsider her decision.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

PAULA CORBIN JONES, Plaintiff,

v.

WILLIAM JEFFERSON CLINTON
and DANNY FERGUSON,

Defendants.

MEMORANDUM AND ORDER

Faced with intense and often inaccurate media coverage of virtually every aspect of this civil case, this Court, on October 30, 1997, entered a Confidentiality Order on Consent of all Parties, thereby imposing limits on the dissemination of information concerning a large portion of discovery and placing under seal court filings dealing with discovery. The Court took this action to help ensure that a fair and impartial jury could be selected in the event this matter went to trial by limiting prejudicial pre-trial publicity. Following entry of the Confidentiality Order, various media entities filed a motion for Leave to Intervene, Motion to Modify and/or Rescind Confidentiality Order and Motion for Access to Court Records and Discovery. Other parties also sought rescission of the Confidentiality Order and for access to Court records and discovery. By Memorandum and Order dated March 9, 1998, this Court denied the motions seeking to rescind and/or modify the Confidentiality Order. In its Memorandum and Order, the Court pointed out the need to ensure a fair trial and, further, that there existed a need to protect the privacy interests of third-party witnesses pursuant to Fed.R.Civ.P. 25(c). The media entities appealed. Following the filing of the notice of appeal but before the Court of Appeals for the Eighth Circuit could issue an opinion on the matter, this Court, by Memorandum Opinion and Order dated April 1, 1998, granted the President's and Ferguson's motions for summary judgment and entered judgment dismissing this case. See Jones v. Clinton, 990 F.Supp. 657 (E.D.Ark. 1998). The Eighth Circuit subsequently issued an order dismissing the media entities' appeal and directing this Court to consider on remand the need for keeping its Confidentiality Order in place in view of the grant of summary judgment. See Jones v. Clinton, 138 F.3d 758 (8th Cir. 1998). The Eighth Circuit's mandate was filed in this Court on June 3, 1998. In accordance with the Order of the Eighth Circuit, this Court, by Order dated June 8, 1998, asked the parties to file briefs on or before June 19, 1998, setting forth their positions, if any, on the need for keeping in place the Confidentiality Order. With the exception of defendant Ferguson (who apparently takes no position on the matter), all the parties timely filed briefs as directed by the Court. Having considered the matter, this Court concludes that the primary reasons for maintaining the Confidentiality Order are no longer in place and that the Confidentiality Order should be and hereby is vacated in part as set forth below.

I.

Plaintiff essentially argues that the Confidentiality Order should remain in effect for so long as there is a possibility that this case will be tried to a jury as the parties' rights to a fair trial are paramount. The President likewise argues that so long as any appeal is pending, the parties' rights to a fair trial and a fair and impartial jury remain an issue and the Confidentiality Order should thus remain in place. The media entities, however, argue that the two primary purposes of the Confidentiality Order -- preserving the parties' fair trial rights and protecting third party witnesses from "the stigma of being associated with a case that involves alleged sexual indiscretions and which is being played out on a national stage" -- has been mooted by virtue of this Court's grant of summary judgment to the defendants and by virtue of the fact that the identities of many third party witnesses have been made public in one manner or another. It is also argued that possible embarrassment from the disclosure of discovery materials does not in itself justify sealing such materials and that any privacy interests implicated in this case are diminished due to the compelling public interest in the conduct of one of the most public officials in the world, the President of the United States.

II.

In an effort to keep the Confidentiality Order as narrow as possible, the Court previously unsealed pleadings and/or rulings involving, among other things, the Paula Jones Legal Fund, the United States Secret Service, Monica Lewinsky, and the Office of Independent Counsel. See Memorandum and Order of March 9, at 8. Since that time, a significant portion of the matters previously under seal have now been made a part of the public record by virtue of the briefing of the issues regarding summary judgment and the filing of additional pleadings in the period that followed. Because a significant part of the record relating to discovery has, in one form or another, been made public, there is no need to maintain under the seal those materials that continue to be subject to the Confidentiality Order. See In re Texaco, Inc., 84 B.R. 14, 18 (S.D.N.Y. 1988) (noting that the need to seal court records is diminished where the information has already been disclosed to the public in some fashion.)

In addition, the Court has since granted the defendants' motions for summary judgment and there is now no imminent trial in which prejudicial pre-trial publicity remains a concern. While there is, of course, the possibility that the Eighth Circuit will determine that the grant of summary judgment to defendants was erroneous (whether in part or in whole), any such decision would not be handed down for several months and any trial date would most likely not be set until sometime after the first of the year, a significant passage of time from today's date. That being so, and considering the substantial information already in the public domain, the Court determines that the primary basis for the Confidentiality Order -- the threat of prejudicial pre-trial publicity -- is no longer sufficient justification for its maintenance.

III.

The Court does determine, however, that compelling privacy interests weigh in favor of maintaining under seal the identities of any Jane Does that may be revealed in the record or in any materials in the possession of the parties that have not been filed of record. This includes, but is not limited to, their names, addresses, occupations, or any other identifying information. As the Court previously noted, protecting the privacy interests of individuals who might be the subject of intrusive and embarrassing discovery is good cause under Rule 26(c) for maintaining the Confidentiality Order:

Rule 26(c)...protects privacy interests and specifically includes among its express purposes the protection of a party or person from embarrassment. See Seattle Times, 467 U.S. at 35 n.21. If ever there was a case necessitating such protection, the case of Jones v. Clinton is it. Much of the discovery in this case of alleged sexual harassment has delved deeply into the personal lives of individuals and elicited information that, regardless of its truth or falsity, could prove damaging to reputation and privacy. Many in the media have shown no restraint in their willingness to place such personal information in the public domain, despite the pain it may cause. Driven by profit and intense competition, gossip, speculation, and innuendo have replaced legitimate sources and attribution as the tools of the trade for many of these media representatives. Stories are apparently no longer subjected to critical examination prior to being printed. Indeed, the printing of a story in one publication is itself now considered newsworthy and justification for its reprinting in other publications, without critical examination for accuracy and bias. Thus, stories without attribution and based on gossip, speculation, and innuendo fly through media outlets with blinding speed only later to be placed in context or subjected to clarification and/or retraction, as the case may be. The Court finds there is good cause under Rule 26(c) in attempting to protect private individuals from the stigma of being associated with a case that involves alleged sexual indiscretions and which is being played out on a national stage.

Memorandum and Order of March 9, at 6-7. The Court continues to adhere to that aspect of its Memorandum and Order and, thus, determines that the Confidentiality Order will remain in place insofar as the identities of Jane Does are concerned.

IV.

With the exception of the identities of any Jane Does (to which the Confidentiality Order will remain in effect), the Court's decision to vacate the Confidentiality Order applies as well to any materials that may be in possession of the parties but which are not a part of the Court record. This includes the full transcript of the plaintiff's and President's respective depositions, but not, however, the videotapes, of any depositions taken in connection with this lawsuit. All videotapes shall remain under seal. In addition, the parties may make any public statements that would otherwise have been subject to the Confidentiality Order to the extent such statements do not reveal the identities of any Jane Does. The parties may decide for themselves whether to release any such materials that may be in their possession and which were previously subject to the Confidentiality Order and whether to make any public statements that would otherwise have been subject to the Confidentiality Order. Should any of the parties release any materials in their possession they must redact any and all portions of those materials that reveal in any way the identities of any Jane Does including, but not limited to, their names, addresses, occupations, or any other identifying information. Should any of the parties make public statements, any such statements must likewise not reveal in any way the identities of any Jane Does.

V.

In sum, the Court vacates the Confidentiality Order as to those matters which do not reveal the identities of any Jane Does and hereby unseals the record in this matter. The Confidentiality Order shall remain in effect with respect to the identities of any Jane Does who may be revealed in the Court record, in any materials in possession of the parties that have not been filed of record, any in any public statements. In addition, all videotapes of depositions taken in connection with this lawsuit shall remain under seal. The parties shall have until and including July 10, 1998, in which to file a notice of appeal from today's decision and to ask that today's decision be stayed pending appeal. If no notice of appeal and motion to stay is filed within that time, the Court will proceed to unseal the record in a manner consistent with today's Memorandum and Order.

IT IS SO ORDERED this 30th day of June 1998.

/s/
Honorable Susan Webber Wright
United States District Judge