Open courts with public access to information are a right American’s often take for granted.
Sadly, far too much civil litigation is now taking place in secret. This problem is especially widespread and dangerous in product liability cases.
How does it work?
Corporate defendants, especially those in product liability cases, often refuse to produce information when sued unless they receive a confidentiality agreement or a protective order prohibiting they receive a protective order prohibiting the plaintiff (the injured party) from sharing the information with others. Settlements conditioned on confidentiality then prevent victims from discussing how a product caused their injuries. In fact, courts on occasion may seal entire case files, making it impossible for the public to know what happened. (Products such as defective lighters, car seats, tires, and asbestos were all subject to protective orders while consumers continued to be at risk from using these products).
Corporate defendants embrace secrecy because it gives them a legal and financial advantage while allowing them to avoid negative publicity. Plaintiffs’ lawyers frequently agree to secrecy because their role is to be zealous advocates for the particular clients they represent (not the public at large, which might have different interests), and practical realities often dictate that the client’s interests are best served by agreeing to secrecy.
What’s more, overburdened judges are often unlikely to reject proposed secrecy where neither side is advocating for the public’s right to know.
The cost of secrecy to the judicial system (and, by extension, to taxpayers) is enormous. Cases are unnecessarily prolonged and costly because plaintiff’s counsel must exhaustively investigate each case (essentially re-invent the wheel in each case), while judges have to decide the same discovery disputes repeatedly.
How it works…
Pre-trial discovery, the phase of the case in which the facts are developed, as well as related court proceedings are supposed to take place in the open unless compelling reasons exist for imposing confidentiality.
Sadly, in nearly all product liability cases, protective orders are entered and many are “restrictive” in that they prohibit plaintiff’s counsel from sharing discovery information with other lawyers.
Product liability defendants (corporations) often assert that material sought by discovery involves a trade secret or other “proprietary information,” or, if disclosed, would result in embarrassment or damage to reputation. In truth, these defendants are most interested in preventing plaintiffs and their lawyers from sharing information with other litigants.
This action contravenes the fundamental purpose of our civil justice system-to advance justice.
As the Texas Supreme Court once observed:
Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses. In addition to making discovery more truthful, the shared discovery makes the system itself more efficient. The current discovery process forces similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical. Benefiting from restrictions on discovery, one party facing a number of adversaries can require his opponents to duplicate another’s discovery efforts, even though the opponents share similar discovery needs and will litigate similar issues. Discovery costs are no small part of the overall trial expense.
Confidential settlements in product liability cases also pose a danger to public safety. A young boy strangled to death when his Playskool travel-lite crib collapsed in 1998. His parents later learned that three prior lawsuits involving the same product defect had been secretly settled. (The manufacturers offered this family a confidential settlement as well, but the boy’s parents successfully fought the secrecy request.)
Recently, some product defendants have even required that the plaintiff’s counsel agree not to sue the company again. This too is a troublesome trend, and highlights the tension between a lawyer’s duty to his or her client and the public’s right to know.
Motions to Seal
Motions to seal are another means by which large corporations seek to cloak product liability litigation in secrecy. Though difficult to obtain, motions to seal involving defective products are nonetheless granted by some courts.
It’s crucial that people understand there is much that can be done to combat court secrecy.
Plaintiffs’ lawyers should oppose protective orders that are overbroad or that prohibit sharing with other litigants. Plaintiffs in product cases are in the vulnerable position of having to develop a substantial portion of their evidence from the defendants. If a protective order must be agreed to, the best mechanism is a protective order that protects the alleged proprietary interests but keeps the documents available to other litigants. Likewise, plaintiffs’ counsel should be wary of agreeing to confidential settlements involving dangerous products.
In the end, lawyers, judges, and legislators should strive to prevent powerful product liability defendants from co-opting our system of open government as a tool with which to hide the truth from the public. Otherwise, we are all in unnecessary danger.