The case of the day is In re Mutual Assistance to the Local Court of Wetzlar, Germany (E.D. Cal. 2018). The opinion doesn’t give the facts in any detail, but we know from the application that the case is a child custody dispute, in which the mother and child lived in Germany and the father lived in California. Via the Hague Evidence Convention, the Amtsgericht Wetzlar sent a letter of request to the US central authority, asking for the father to answer several questions in writing. The US Attorney’s Office sought the father’s voluntary cooperation, but when that was not forthcoming, an AUSA applied to the court for appointment as a commissioner for purposes of executing the letter of request.

After filing the application, the government moved to seal the application. I don’t know this is so, but I suspect the motion came after either the litigants or the German court realized that, contrary to their expectations and contrary to how things work in Germany, all the documents in the case were available to the public online. The court denied the AUSA’s motion to seal on the grounds that the government hadn’t met the heavy burden that it would have to meet in order to justify sealing the record, which after all implicates First Amendment issues and the fundamental notion that courts should conduct their proceedings in public.

While Europeans sometimes are incredulous about our system of open court records, the issue can work the other way, too. In my experience, in § 1782 cases involving German litigation, one of the hardest issues to work out can be negotiation of a protective order in such a way as to ensure, or at least attempt to ensure, that once highly confidential materials are filed with the German court, they won’t fall into the hands of competitors.