Statement from Detroit City Attorney Sharon McPhail about the Appeal
February 7, 2008

This has been a very frustrating week which has highlighted the potential for abuse that exists when one party to a lawsuit is also able to provide their own unchallenged version of that lawsuit to the public.

The city is in the unenviable position of being a defendant in a lawsuit brought by plaintiffs � in this case the Detroit Free Press and the Detroit News � who then have provided the only public accounts of that lawsuit. They own the printing presses. They have hundreds of thousands of readers. The city does not. As a result, readers receive only one side of the story.

Nevertheless, we have carefully reviewed Judge Colombo�s decision in the lawsuit brought by the Detroit Free Press and Detroit News. After that review, the Mayor has decided to ask the judge to release some of the documents in question while appealing portions of his ruling.

Michigan court rules require confidentiality for any documents or information exchanged during mediation. This privacy is necessary so that all parties can communicate openly toward an agreement. The possibility that personal documents � whether financial records, health records or other information � might become public would have a chilling effect on any mediation.

When you are trying to settle a case you may have to produce medical records or financial records in the privacy of the mediation. But you would not want those personal records released to the public or published in a newspaper once an agreement has been reached. The court rules are set up to guarantee the individual�s right to privacy while encouraging movement toward a settlement.

It is for that reason that the city is appealing the court�s ruling relative to the sealed deposition of Michael Stefani, the plaintiff�s attorney, the order allowing Free Press attorney Hershel Fink to tape record the sealed deposition even though we were not allowed to tape it, and certain exhibits in the Stefani deposition.

This decision was made more difficult by the unavailability of the documents that are at issue in this case. Judge Colombo�s order prevented us from obtaining copies of those documents and, thus, we were required to make this decision without the benefit of a review of the documents or a transcript of the Stefani deposition.

We have talked to the attorney who drafted the confidentiality agreement and he believes the agreement and the two documents related to it that we are urging the judge to release could have been either a private agreement or a part of the public record regarding the settlement.

Therefore, the Mayor is asking the judge to release three documents:

1. An agreement in which the documents involved in the mediation were put in a safe deposit box until the agreements were signed,

2. The document the mayor signed accepting City Council�s approval of the settlement and

3. the confidentiality agreement itself which was signed by Michael Stefani on behalf of his clients, which acknowledges that the documents in question were personal and private.

I hope that this will put to rest media speculation about the existence of any �secret� deals. In fact, no secret deals exist or have ever existed. The decision to pay a jury verdict in any case is one that is discussed and reviewed dozens of times before any action is taken. Initial reactions to any jury verdict always give way to thoughtful consideration of the best route to protect the city�s interests. So it was with the decision to pay the settlement in the Brown/Nelthorpe case.

In fact, at the time many on the City Council, in the media and in the public at large were very strongly urging that the city settle the case once and for all without any appeal. That is what we did.

It is important to note that none of the documents involve the so-called text messages that have been the subject of such fevered media coverage in recent days. Any suggestion that they were involved in this in any way is false.