So far, though, only legal briefs filed by the two sides have been made public. Underlying evidence, such as deposition transcripts and corporate records, have not been released, making it difficult to get a complete picture of the events described.
In a related case, Kanawha Circuit Judge James Stucky on Wednesday morning signed an order sealing all records concerning an effort by Massey shareholders to have a collection of company executives and board members held in contempt of court.
That case involves a court settlement, reached after the deaths of two miners in the January 2006 Aracoma Mine fire, in which Massey managers agreed to more closely police the company's safety practices to ensure better compliance with federal regulations.
Badge<co > Humphries, a lawyer for Massey shareholders in both cases, said the petition filed with Stucky included documents obtained during discovery under a confidentiality agreement signed by both Massey and the shareholder groups who filed the suit.
But in a brief filed for the Gazette and NPR with King, Charleston lawyer Sean McGinley argued that the two sides in a lawsuit couldn't on their own decide which records in the case are public and which are not.
West Virginia's Constitution mandates open court records, as does the First Amendment of the U.S. Constitution, McGinley said. Records can be sealed only in very limited circumstances that don't exist in the Massey cases, he said.
"It is unsurprising the parties to this case 'endorse' the secrecy orders; they likely would prefer to avoid any public scrutiny," McGinley wrote. "Yet this court is not obligated to pander to parties' desires to hide from public scrutiny.
"Massey Energy and its related entities form one of the largest employers in this state. As such, Massey's conduct, the sale or potential sale of the company, the required public disclosure of relevant information concerning the value of the company to shareholders so they can make informed decisions, and the actions of the parties in this case is of great interest and concern both to the citizens of West Virginia, and nationally as well.
"In addition, there is greater cause for public scrutiny of the filings in this matter in light of the April 5, 2010, explosion at Massey's Upper Big Branch Mine," McGinley wrote. "The suspicious circumstances surrounding that tragedy has resulted in numerous lawsuits, including the recently-filed suit alleging that the sale of Massey to Alpha will harm the ability of victims and their families to recover damages. The filings in this case likely will shed new light on Massey's acts and or omissions in relation to this tragedy."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.