The Best Person Of The Week

By: Mark Fitzgerald Black robe-itis usually isn't very pretty. That's the specific bacillus responsible for turning judges into arrogant asses, lecturing and hectoring self-importantly from the bench.

But if there's such a thing as good black robe-itis, U.S. District Court Judge William Young has got it. Judge Young laid down the law in his Boston courtroom the other day in a way that should thrill all of us who occasionally despair that the judiciary is falling as inexorably as the White House has into the black hole of secrecy.

Young told lawyers in the lawsuit revolving around the millions of credit card numbers the off-price retailer TJX somehow let slip into unauthorized hands in an 18-month period.

"Given the nature of this case, I don't see why any of this case, any of it, should be conducted out of the public's spotlight and it will not be, unless there is a specific reason, persuasive to me, made in public documents," he said.

I was tempted, as any purple-prose journo is, to say instead that the judge "thundered" those words. But I wasn't there. Neither was Evan Schuman but he?s following the case closely through the transcripts of hearings and he?s been constantly talking with the lawyers involved.

Schuman is covering the TJX developments like a blanket on his blog "Storefront Backtalk: Techniques, Tools, and Tirades About Retail Technology and E-Commerce." (http://storefrontbacktalk.com/story/101707tjxbankjudge)

Judge Young is presiding over lawsuit a number of credit card-issuing big banks have filed against the off-price retail chain TJX, which operates Marshall's and T.J. Maxx. In January of this year, TJX fessed up that, um, well, it messed up.

Here's Schuman's summary of the action so far:

"The core accusation against TJX is that it was not truthful with the banks-and with Visa and MasterCard specifically-as to the state of its data security operations for its credit cards.

"In what is widely considered the worst ever data breach reported, the retail chain in January disclosed that the credit card data of some 46 million consumers fell into unauthorized hands in a series of penetrations from July 2005 to December 2006. TJX filings have raised questions about its encryption practices, its wireless security choices and whether intruders successfully planted Trojan horses into the system and whether they had the company's encryption key."

But what will interest E&P readers is what happened at the end of Tuesday's hour-long hearing. (What follows is taken from Schuman's story and a court transcript he provided.)

Young served stern notice that the courts are a public forum -- not a place where the banks and TJX can expect to make their cases behind closed doors. Sure, Young said, there are a few -- a few -- confidential aspects to case, and he would respect that information.

But then he zeroed in on the lawyers who are trying to keep documents out of public view:

"But because the Court has acknowledged that from the get-go, and will continue to respect that, you people have chosen to try to gain the litigation advantage for your respective clients in this case behind closed doors. You are taking a sweeping view of what is confidential and what the public cannot see. And you are sadly mistaken. I have carefully gone over the record before me with respect to this motion. There is only one fact, one, that falls within that ambit."

From now on, he said, lawyers were forbidden from trying to introduce court papers by slapping on a "confidential" label, and sending them past the public files, and directly to the judge's chamber.

"You will not in the future file any document other than electronically, pursuant to the rules of this court," he said. "And the documents you file will be public. Entirely public. You will not file a document under seal and some (cleaned up) document that the public can look at. You will file a public document. If you think anything needs to be filed under seal, you will file a public document, supported by public affidavits, detailing why the specifics, and I am extraordinary skeptical of your view of what's confidential. I've told you what's confidential. Things that bear on the actual operation of the computers, the actual security standards for the computers, and the like."

Even then, he wasn't done. "I'm especially offended by a filing which said, pursuant to the protective order, we're doing thus and so," he said. "I made it clear in the protective order, it had no application, none, to documents to be filed in court. Therefore, as a sanction for you people not paying attention to my statements along this line, these motions are all denied without prejudice to refiling within a week electronically in accordance with my order."

As a final warning that the court belong to the public, Judge Young added: "So file what you want to file publicly. I will pay attention to anything that's filed publicly. None of the arguments we've had here, it seems to me -- I mean, how do you calculate fraud loss? -- it is not and should not be a secret."

Schuman realized he was witnessing a bravura performance, and one, sadly, that was unusual enough to call to attention.

As Keith Olbermann might say, were he in one of his rare non-snarky moods, Judge William Young -- best person of the week.