Unnecessary Court Secrecy In Product Liability Litigation

, The Connecticut Law Tribune

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Despite the presumption of open courts with public access that stems from the First Amendment and the common law, far too much civil litigation is taking place in secret. Unnecessary court secrecy is a threat to public health and safety, the fair and efficient administration of justice, and our democratic system of government. This problem is especially widespread and dangerous in product liability litigation.

The American public has a right to know what is done in its name. Because "[w]hat happens in the halls of government is presumptively public business," courts in this country "issue public decisions after public arguments based on public records." Union Oil Co. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). The presumption of public access is fundamental to the American system of justice. See Rosado v. Bridgeport Catholic Diocesan Corp., 292 Conn. 1, 30 cert. denied sub. nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991 (2009) (concluding that Practice Book § 11-20A codifies the common law presumption of public access to judicial documents; noting that public access to court documents traces its roots back centuries).

Limited secrecy may be appropriate in some circumstances (i.e., the protection of Colonel Sanders' secret recipe). A judge could easily determine that no public interest would be harmed by confidentiality there, but in a case where the information would make consumers aware of a defective product secrecy is not appropriate. Allowing public courts to be used by private parties to hide evidence of product defects fails to discourage the use of dangerous products as many examples through our recent history demonstrate. Defective lighters, car seats, tires, and asbestos were all subject to protective orders while consumers continued to be at risk from using these products.

Court secrecy also subverts our system of open government and undermines trust in the court system, and makes discovering the truth much more difficult and expensive.

Too often, the effect of this greatly increased cost is to effectively close the courthouse doors to people who have suffered serious injuries from defective products. In a complex design defect claim with damages in the range of a few hundred thousand dollars, most plaintiffs attorneys would be reluctant to get involved because "blazing the trail" of discovery without the benefit of discovery from other cases tilts the cost-benefit analysis against taking the case. This burden is much less when a plaintiff is permitted to access information obtained in previous similar cases.

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 essentially re-invent the wheel in each case, while judges have to decide the same discovery disputes repeatedly.

Corporate defendants, especially those in product liability cases, often refuse to produce information in discovery without a protective order prohibiting the plaintiff from sharing the information with others. Settlements conditioned on confidentiality prevent victims from discussing how a product caused their injuries. Courts on occasion seal entire case files, making it impossible for the public to know what happened.

So why are product liability and other cases involving large corporate defendants often shrouded in secrecy? Corporate defendants embrace secrecy because it maximizes profits and allows 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. Overburdened judges may be unlikely to reject proposed secrecy where neither side is advocating for the public's right to know.

Pre-trial discovery proceedings are supposed to take place in the open unless compelling reasons exist for imposing confidentiality. Yet in nearly all product liability cases protective orders are entered, many of which are "restrictive" in that they prohibit plaintiffs counsel from sharing discovery with other lawyers.

The defendant typically asserts that the material sought by discovery involves a trade secret or other "proprietary information," or, if disclosed, would result in embarrassment or damage to reputation. These defendants are most interested in preventing plaintiffs and their lawyers from sharing information with other litigants. This contravenes the fundamental purpose of our civil justice system—to advance justice.

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