All anybody outside the inner legal circle has to go on are clues in the original motion to compel, as initially filed, including the four appendices... and the one batch of doc's that Sweeney already released. Pretty much everything else, including the criteria used to determine what doc's were being sought under discovery, remains under seal. There is substantial legal precedent for huge amounts of content remaining under seal and not being released for public view for sustained periods of time. One such case that comes to mind was the Kodak bankruptcy where scads of discovery materials were produced for intellectual property valuation analysis of the estate, but all specifics regarding technology and patents were redacted and remain under seal, in many cases until the patents expire. So the answer is that we may NEVER really know what is in whatever gets released to the court, and the part of Sweeney's order that deals with that subject could, itself, be redacted.
I think that Docugate is blown way out of proportion to its likely impact on either the Perry Appeal or the Fairholme case before Sweeney. I do think it could provide evidence support for some of the peripheral cases pending because many of them are focused in part on 2008 as much as on the sweep in 2012, but I'll skip that digression for now. Let's just consider one key aspect to the two, main cases.
The first document release ordered by Sweeney lit up the blogosphere and Twitterverse for months which bombshell conclusions of all manner of illegal skullduggery. Every literary or financial pundit living jumped on that one, big time. Why, we even had a few more mainstream types like George Will piling on the excoriation of the government. It was like watching sharks in a textual feeding frenzy. Just one problem, though. Nothing in the first release moved the needle any closer to any verdict supporting any plaintiff action. In fact, after that release, several dismissals were ruled. So, yes, can the government be made to look bad in the remaining cache of paper? You betcha. But will it really move the needle in any aspect of Fanniegate? I seriously doubt it.
I, for one, would like all the documents released for controlled use in the pending legal matters. You can honor the protection concerns of government attorneys by redacting the contents while permitting any discovered evidence to be fully considered by the court. This may, in fact, be in Judge Sweeney's recent ruling. I can't say, not having seen it.
The fact remains that most of the claims against government are straightforward issues of empowerment under the law (HERA), alleged contract violations and a takings claim for property taken without just compensation. I don't see the other claims as ever gaining much traction after the slew of dismissals already issued by the lower courts. There is nothing lurking in the closet of secrecy that is likely to impact the outcome in any of the claims put forth in Perry or Fairholme. Motive is not important.
I still expect some sort of government recoil from the motion to compel, but nobody can say for certain.
JMHO.
