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The Public’s Right to Access Trumps Trump University’s Confidentiality Claim

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James V. Irving
June 2016

Pushing aside the political issues that seem to overwhelm the subject, the litigation involving Donald Trump and Trump University, now pending in the Southern District of California, demonstrates how a person’s status as a public figure can limit his ability to restrict access to confidential material during litigation.                            

On May 27, 2016, in a class-action suit filed against Trump University, LLC (“TU”), United States District Judge Gonzalo P. Curiel ordered the unsealing of several controversial exhibits containing what Trump claimed was confidential or trade secret information. The result was the disclosure of a number of sensitive exhibits, including the Trump University Playbooks, which contain TU rules and procedures, sales scripts and employee contact information. While most of the media focus was on the Republican frontrunner’s criticism of Judge Curiel for being biased against him, the decision illuminates important discovery principles involving exhibits developed by or on behalf of “public figures,” such as Donald Trump.

In the related case Low v. Trump University, LLC, Magistrate Judge Gallo evaluated the same materials under a good cause standard and found that while nothing appeared unique or proprietary when considered as a compilation, the information deserved a line-by-line analysis. According to Judge Gallo, that analyses demonstrated that the vast majority of the material was either not confidential or only “arguably trade secret.” In particular, the Sales Playbook contained company policies and scripts, as well as names, addresses and phone numbers of TU employees. However, a complete version of a 2010 Playbook had been posted online by Politico.

The proponent of the motion before Judge Curiel was the Washington Post, which argued that the class certification motion to which the exhibits were attached was closely related to the merits of the case, and therefore the public had a presumptive right of access to the disputed information. This right of access warranted a heightened compelling reasons standard for TU to maintain confidentiality. Trump responded by arguing that the disclosure of which could harm his business interests.

In granting the Post’s motion to unseal the documents, Judge Curiel focused on whether the motion at issue was more than “tangentially related to the underlying cause of action.” Judge Curiel ruled that class certification motions are so related because they generally involve direct reference to the factual and legal issues comprising a plaintiff’s claim. Thus, Trump would need to articulate compelling reasons for confidentiality in order to overcome the strong presumption in favor of public access to the information.

Trump claimed that the information contained in the Playbooks were trade secrets, but Judge Curiel reasoned that the online publishing of the 2010 Playbook by Politico destroyed the secrecy of the documents. With regard to the Sales Playbook, the Court found Trump’s blanket assertion that it contained non-public information which was “fundamental to Trump University’s business marketing and sales strategy” unpersuasive, in part because TU has not enrolled students since 2010.

Perhaps most importantly, the Court recognized a strong public interest component in the Trump case. In another related case, Makaeff v. Trump University, LLC, the 9th Circuit found Trump to be a public figure for purposes of defamation law because the activities of the school had the potential to affect local housing markets, and the legitimacy of the school had been brought into question publicly. As the presumptive GOP presidential nominee, Trump can no longer avoid the enhanced scrutiny that comes with that designation.

The combination of Trump’s newfound status as a public figure, the conclusory nature of Trump’s arguments, the routine and commonplace nature of the information, and the public disclosure of the 2010 Playbook by Politico convinced the Court to order the requested documents to be immediately unsealed (with employee phone numbers and non-corporate e-mail addresses redacted). Though Trump may be unhappy with the decision, it clearly reinforces the importance placed on public access to information in the case of public figures and controversies.