Bankers Trust: Judge Feikens Responds

Regarding your article "The Bankers Trust tapes" (Cover Story, Oct. 16), I recognize the concern that you have as to confidential sources of information. I understand the vital role that the media has in making information available publicly that would not otherwise come to public light.

My central concern is the overarching requirement that court orders be obeyed. The court order that was entered by the late Judge Carl B. Rubin required that all the documents obtained through the discovery process must be sealed and not publicly used until such use was court ordered. That order applied not only to Procter & Gamble Co. and Bankers Trust Co. It also applies to all other persons, organizations, and corporations.

When you obtained the sealed documents and sought to use them without court approval, you faced the real prospect of being in contempt of court. The fact that you did not publish evidences the point.

Recall that Justice John Paul Stevens observed that the manner in which the media comes into possession of the court-ordered sealed information may have a bearing on the media's right to publish it.

It became clear to me that you did not desire a hearing on how you obtained the sealed documents, undoubtedly because you could not show that you obtained them lawfully. After having been directed by two appellate courts, there was an evidentiary hearing in which it became abundantly clear that the sealed documents had been obtained and were ready to be used by you in violation of the court order.

That is the central issue in this case. When it was determined that you had obtained these documents unlawfully, the inevitable conclusion followed--you could not publish them. To do so would be to violate a court order which was in full force and effect.

My ruling stands foursquare for the proposition that court orders must be obeyed. The First Amendment cannot be used to ignore court orders.

John Feikens

U.S. District Judge


Editor's note: BUSINESS WEEK contests the judge's notion that the protective order sealing the documents extended to all organizations, including this magazine. In addition, the evidence fully supports our position that we obtained the documents lawfully. These and other issues will be addressed in early December, when the U.S. Court of Appeals for the Sixth Circuit hears our appeal.

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