Frank Hoover Easterbrook's opinions suggest a healthy self-regard.
Blawgletter has asked if the Chief Judge of the Seventh Circuit cares what you think. The way we posed the question implied how we would come out on it.
Today His Honor performed a Britney Spears. Oops, he did it again.
The case raised a nifty issue: can parties to a dispute stop others from learning their secrets by vowing to each other to keep the stuff away from others' prying eyes? Chief Judge Frank Easterbrook today said no:
[S]uch a provision would be ineffectual. Contracts bind only the parties. No one can “agree” with someone else that a stranger’s resort to discovery under the Federal Rules of Civil Procedure will be cut off. We applied this principle in Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d 854 (7th Cir. 1994), to confidentiality agreements reached during litigation. That conclusion is equally applicable to confidentiality agreements that accompany arbitration. Indeed, we have stated more broadly that a person’s desire for confidentiality is not honored in litigation. Trade secrets, privileges, and statutes or rules requiring confidentiality must be respected, see Fed. R. Civ. P. 45(c)(3)(A)(iii), but litigants’ preference for secrecy does not create a legal bar to disclosure. See Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002); United States v. Foster, 564 F.3d 852 (7th Cir. 2009) (Easterbrook, C.J., in chambers).
Gotham Holdings, LP v. Health Grades, Inc., No. 09-2377, slip op. at 2 (7th Cir. Sept. 3, 2009).
Except that the case didn't really present that issue. The court could have ruled on the basis that the agreement not to disclose by its terms said the promise didn't apply if a party got a subpoena. See id. (noting that "¶6 of the agreement between Health Grades and Hewitt Associates provides that materials from the arbitration may be disclosed in response to a subpoena").
What moved Judge Easterbrook to go on to give us obiter dicta? Perhaps so he could share with us this thought (plus a few others):
According to Health Grades, access to the information would undermine the national policy favoring arbitration. There is no such policy.
Id. at 3.
We don't deny His Honor's wisdom and cleverness on this head. But we do marvel that he seems to think we need them so much.