Courts are sometimes accused of overstepping their authority. In a case involving inadvertently leaked documents, the Ninth Circuit Court of Appeals ruled that a district court didn't flex its legal muscles enough. The decision means that the district court had the power to order the newspaper that received the erroneous gift and refused to give it back to either return or destroy the classified documents.
The question arose due to a high-profile lawsuit filed by four women against Nike in 2018. The parties have reportedly reached a tentative agreement. When a plaintiff's attorney asked for the Oregonian to return unredacted documents it was sent by mistake and the paper refused, it was up to the courts to decide who could read all about it.
Sneakers and Starfish
Athletic shoe and apparel behemoth Nike, Inc. had been accused of having a toxic culture and being a "boy's club," which led to the dismissal of several employees in 2017. In March 2018, Nike began a series of confidential questionnaires to better assess the state of its corporate culture.
These were known as the "Starfish surveys" and contained numerous accusations by employees against their coworkers and superiors including harassment, discrimination, and sexual misconduct. While Nike began addressing the issues internally, the Starfish surveys weren't shared with the public.
In 2018, four female employees filed a lawsuit against Nike, Inc. The suit accused the company of paying women less than their male counterparts, creating a hostile work environment, and sexual discrimination. The Starfish surveys were offered as evidence by the plaintiffs during the long pre-trial period.
Sealed at first, the courts agreed to release about a third of the material after a legal challenge by three media groups — Advance Local Media, American City Business Journals, and Insider. The groups also filed for access to versions with the names unredacted.
In January 2024, one of the plaintiff's attorneys accidentally sent a reporter at the Oregonian a copy of some Starfish files with the names of those accused of misconduct unredacted. While perhaps not the biggest goof in the sharing of confidential information by an attorney, it was still a serious error.
When she recognized her mistake, the attorney alerted the court to the mistake and asked the journalist to return the files. After a series of back-and-forth conversations and consultations with superiors, the Oregonian (part of Advance Local Media) refused.
Okay, Give It Back. No, Keep It. Wait ...
The plaintiffs filed a motion to force the Oregonian to give back the unredacted version of the documents. A magistrate judge granted the motion, blocking the paper from publishing the names contained in the papers. That order was reversed by the district court on February 28, 2024, which ruled that the Oregonian was not a party to the case and the need for privacy didn't outweigh their First Amendment rights.
The Ninth Circuit panel didn't see it that way, ruling that the Oregonian was an intervenor in the case, and therefore a party. Because they were a party to the case, they were required to follow court orders regarding discovery. The panel unanimously concluded that the district court had the power to order the return of the materials and remanded the case back to the lower court.
Cleaning Up the Swoosh
Names of some of the Nike employees charged by the plaintiffs were released in unredacted documents soon after the ruling. Nike claims that they are committed to creating and maintaining a workplace that is respectful and inclusive of all employees, with no discrimination or harassment in any form.
While there have been rumors of the suit expanding to a class action, no details concerning the alleged settlement have been released yet.
Related Resources
- Sexual Harassment Laws (FindLaw's Employment Discrimination Law)
- What Is FOIA? How Does It Work? (FindLaw's Law and Daily Life)
- When Redaction Goes Wrong (FindLaw's Legal Technologies)
