Trump University case shows consequences of court secrecy

May 31, 2016

In July 2014, nearly a year before Donald Trump declared his candidacy for the presidency of the United States, lawyers representing people who claim they were swindled by Trump University marketing asked a federal magistrate in San Diego to unseal documents that Trump and his co-defendants had designated as confidential.

Plaintiffs’ lawyers from Robbins Geller Rudman & Dowd had obtained the material – which included a PowerPoint presentation shown at Trump University seminars, as well as “playbooks” detailing the school’s intricate operating procedures – under a sweeping protective order both sides signed. But according to the plaintiffs’ motion to unseal the records, the Trump defendants were “trampling” the First Amendment and abusing the protective order, insisting that materials from a business that had ceased operations were somehow trade secrets.

Trump’s lawyers agreed to remove the confidentiality designation from some documents, but maintained the annual playbooks – which dictated everything from the Trump University logo to what language Trump University “team members” should use to sell customers increasingly expensive followup classes – were confidential and proprietary.

U.S. Magistrate Judge William Gallo conducted a line-by-line review of the disputed documents and decided to keep the playbooks under wraps. “In isolation, nothing appears to be unique, proprietary, or revolutionary,” he wrote. “The information is very routine and commonplace information. However, when considered as a whole or compilation, the information is arguably trade secret, deserving of a ‘confidential’ designation pursuant to the terms of the protective order.”

You can’t read Gallo’s August 2015 order, which was itself sealed. But thanks to a ruling Friday from U.S. District Judge Gonzalo Curiel of San Diego, who is overseeing two class actions by disgruntled Trump University attendees, you can read the playbooks for yourself. (Politico obtained and posted the 2010 Trump University playbook in March.) Judge Curiel granted the Washington Post’s motion to unseal all of the Trump University records, ruling that under recent precedent from the 9th U.S. Circuit Court of Appeals, Trump failed to show a compelling reason why the material should remain confidential.

According to the judge, the public interest in Trump University’s marketing far outweighs Trump’s “blanket assertion” that the playbooks contain trade secrets, particularly because the real estate seminars have not enrolled new attendees since 2010 and Trump’s assertion that operations may someday resume is purely speculative. (Plaintiffs’ lawyers did not oppose the Post’s motion to unseal, pointing out that they asked for the same thing in 2014.)

Would the unsealed documents have changed the course of the Republican primary elections? We will never know, but the playbooks could have provided Trump’s opponents with talking points. From the sales playbook, which was posted on the docket Tuesday, I learned how Trump University instructors were trained to ferret out trainees’ finances during the initial three-day seminar and then sell the most expensive possible programs, right down to scripted answers to common objections. “Don’t let them think three days will be enough,” the playbook exhorted. “If all Trump U team members are following these procedures, it will greatly improve our chances to sell elite packages.”

Sure, Trump’s opponents capitalized on broad accusations about Trump University from the California class actions (and a separate fraud case by the New York attorney general). But it would have been interesting to see how Trump reacted to an opponent quoting, say, the 2010 playbook’s instruction that in order to identify buyers, trainers should scrutinize attendees’ profiles and rank students by their liquid assets (not counting their 401ks and IRAs “since these are not liquid, available cash” to pay for additional Trump University programs).

I’ve been on a bit of a campaign of my own this year to highlight secret court proceedings – not in matters of national security but in ordinary cases in which the two sides agree to litigate under a protective order and no one, including the presiding judge, challenges confidentiality designations. Even at the U.S. Supreme Court, the justices have accepted sealed filings in more than 130 cases since 1988.

The Trump University documents are embarrassing to Donald Trump. They show the fundamental purpose of the project was to squeeze money from people who signed up for seminars. It’s easy to understand why Trump and his lawyers didn’t want the playbooks to become public.

It’s a lot harder to understand why the magistrate judge allowed them to remain confidential after plaintiffs’ lawyers complained. The First Amendment finally prevailed only after the Post brought in media lawyers from Davis Wright Tremaine to convince the trial judge of the absurdity of protecting the so-called trade secrets of a business that hasn’t been operating for six years and may never run again.

If you were waiting for a sign that unwarranted sealing motions and protective orders have become too common for the good of the court system and the Constitution, I’d say the Trump University case has just provided it.

I emailed Trump’s lawyers from Foley & Lardner, who represent him in one of the California class actions, and from the Trump organization, which filed the brief opposing the Washington Post’s motion to unseal in the other California case. I didn’t receive a response.

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