Company cited for filing public court documents with FCC

NEBRASKA–In early February, federal District Judge Thomas Shanahan in Omaha held Cottonwood Communications and its vice president, Rick Dahlgren, in civil contempt after it included evidentiary documents from a lawsuit as part of its comments to the Federal Communications Commission in a regulatory proceeding.

In a report to Shanahan issued in mid-January, federal magistrate Kathleen Jaudzemis in Omaha acknowledged that the documents were publicly available from the court clerk, but nevertheless recommended that Cottonwood and Dahlgren be held in civil contempt.

Jaudzemis stated that a protective order issued in the case forbade the parties to use confidential information in other proceedings absent consent or permission by the court. Jaudzemis stated that “Members of the general public may also review the court file if they have any interest in doing so” but that “the average member of the general public . . . probably does not have the desire or incentive to peruse thousands of pages of court files for secret documents.” Jaudzemis recommended that because Cottonwood and Dahlgren knew how to locate documents US West claimed were “sensitive,” and was motivated by a desire to place US West in a bad light before the FCC, they should be held in contempt.

In February of 1994, Cottonwood filed suit claiming US West had violated anti-trust laws. In the course of the case, Cottonwood won access to thousands of pages of internal US West documents. In December 1994, Jaudzemis issued a protective order covering documents stamped “highly confidential — attorneys only.”

After Cottonwood lost at the trial level, it obtained unsealed documents from the court clerk that were part of the evidentiary record. It then filed comments on a proposed rulemaking with the FCC, and included several of the publicly available exhibits to support an argument that the FCC should not allow unregulated separate subsidiary access to data services markets. In mid-January, Jaudzemis recommended that Cottonwood and Dahlgren be held in contempt for submitting the documents to the FCC.

In his contempt order, Shanahan remanded the case to Jaudzemis for a determination of what contempt sanctions should be issued. (Mostly Media v. US West Communications)