One important theme that has underscored much of the TJX data breach saga has been secrecy, starting with TJX having learned of the breach in mid-December 2006 but not reporting it publicly until mid-January 2007. With so much of the law on its side in the consumer lawsuit, the most pressing matter for TJX was the fear of having to reveal embarrassing internal security details in open court. Young waited until the end of the hearing to address confidentiality, and he lectured TJXs attorneys on abusing discretion and operating in secret when dealing with what the judge called "so-called confidential data.""This court has and will respect that," he said. "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, and thats the location of servers, and that could have been worked around by use of equivalent phraseology or data. I have people redacting the names of experts here." The judge then ordered all attorneys to halt sending documents directly to his chambers labeled confidential. "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 cant 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 whats confidential. Ive told you whats confidential: Things that bear on the actual operation of the computers, the actual security standards for the computers, and the like." Young also said he wants attorneys to reveal much more to the public. "Given the nature of this case, I dont see why any of this case, any of it, should be conducted out of the publics spotlight, and it will not be, unless there is a specific reason, persuasive to me, made in public documents," he said. Retail Center Editor Evan Schuman can be reached at Evan.Schuman@ziffdavisenterprise.com. Check out eWEEK.coms for the latest news, views and analysis on technologys impact on retail.
Young said there are some confidential elements to this case, including specific details that could allow cyber-thieves to break into the systems of TJX and other retailers.