Visa trial judge assumes authority over time and space
How to make the legal illegal
Judge Jones, the federal judge presiding over the government's antitrust trial against Visa and Mastercard, has attempted to push the boundaries of law by insisting anyone who downloaded confidential trial documents accidentally posted to the Justice Department either destroy or return them.
Uncensored versions of 12 pieces of evidence appeared on the department's antitrust Web site on 4 August and stayed there until 14 September, during which time a number of people, including lawyers representing Wal-Mart in an upcoming case against Visa and Mastercard, downloaded them.
However, Judge Jones' edict that all copies be returned or destroyed has annoyed many, especially since they were lawfully obtained. The government doesn't make mistakes of course and Judge Jones was obviously aware of the damage a wide dissemination of the information would have on her case. Refusing to allow the files to be used as evidence in future trials would not be enough as the media would still be able to publish the evidence. Since it would then be in the public domain, the evidence could then be legitimately pulled into future trials through a different route.
The legal logic is clear, but how much right has Jones to make things illegal in retrospect? Well, every right, but would the decision stand up to a court case itself? It remains unclear whether any media companies will take her on - we suspect it will depend entirely on how juicy the information in the documents is.
The order was as follows: "All third parties informed of this order shall forthwith return or destroy all copies of documents that the government has stated were inadvertently posted on its Web site, as well as any other documents reflecting the confidential information contained therein." Plus, those who have passed on the info "shall ensure" that the receivers return or destroy the documents.
The government has accused the credit card giants of damaging consumer interests by stifling innovation and strong-arming banks not to accept rival cards. Jonesy has yet to give any indication as to when she will announce her decision. ®
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