DOJ Seeks to Unseal Bench Conference Transcripts From AT&T Antitrust Trial

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WASHINGTON — Those who sat in on the AT&T-Time Warner antitrust trial last spring became all too familiar with a sound that, with a flick of a switch, pervaded the courtroom: The static-like sound of white noise, designed to muffle moments when attorneys for both parties huddled with U.S. District Judge Richard Leon to resolve disputes in private bench conferences.

Those moments took up a substantial amount of time during the trial, and now the Justice Department wants transcripts of those meetings released.

The government is asking that the D.C. Circuit Court of Appeals order that the transcripts be unsealed, except for portions that the parties already have agreed contain confidential information.

Among the topics discussed during the bench conferences were objections to witness questions and testimony, along with evidentiary issues, as well as a number of Leon’s rulings.

“Except for the legitimate need to preserve the confidentiality of certain testimony elicited at trial, no reason has been provided by either the defendants or the district court why the trial transcript should not now be public,” the Justice Department said in a filing to the D.C. Circuit on Wednesday.

The DOJ pressed for the release of the bench conference transcripts during the trial, but Leon agreed to release them only to the counsels of record on June 7, after the proceedings ended. The Reporters Committee for the Freedom of the Press sent a letter to Leon on May 3.

“The one court that has examined the issue found that, at the very least, the public has a common law right of access to bench conference transcripts following the trial,” wrote its executive director, Bruce Brown.

On June 12, Leon ruled in favor of AT&T-Time Warner, but the DOJ is appealing. Their first brief in the case is due on Aug. 6, but the DOJ said that third parties seeking to file friend-of-the-court briefs in the case need access to the transcripts.

“This impasse must be resolved in order for the appeal to proceed,” the Justice Department said.

The D.C. Circuit is asking AT&T to file a response to the issue by Tuesday. The company’s attorney’s previously wrote in a filing that they had no objection to be transcripts remaining under seal but would defer to Leon on whether to release them.