The bill-S. 2449, sponsored by Sens. Herb Kohl (D-Wis.), Lindsey Graham (R-S.C.), and Patrick Leahy (D-Vt.)-would amend Chapter 111 of the U.S. Code, relating to protective orders, sealing of cases, and disclosures of discovery information in civil actions. It would require judges to consider public health and safety before allowing secrecy agreements.
“Too often, court secrecy agreements are used by powerful corporations to hide public safety hazards from the American people and the public safety agencies responsible for protecting them from dangerous and defective products,” said AAJ President Kathleen Flynn Peterson in a statement when the bill was reintroduced in December.
The bill would not ban all secrecy agreements but “simply says that while litigants may want total confidentiality when resolving their disputes in court, information about public health and safety dangers does not deserve court-endorsed protection,” Kohl said after the Senate committee approved the bill.
In Senate testimony, Johnny Bradley Jr. of Pachuta, Mississippi, said the rollover that injured him and killed his wife could have been prevented because the manufacturer of the tires on his Ford Explorer knew about a series of design defects but kept that information secret. When the tread on a rear tire of the Explorer separated, the vehicle rolled over. Numerous similar incidents had been reported, and Cooper Tire & Rubber Co. faced 200 lawsuits, said Bradley, but none of the information the company had about the hazard was made public.
“I found out through my attorney that almost all of these documents were kept confidential through various protective orders demanded by the tire company and entered by courts around the country, so that vital information that could have saved our family would never be disclosed to the public,” he testified.
Bradley’s attorney, Bruce Kaster of Ocala, Florida, said his client’s compelling story should reinforce the need for openness of court records on a national level. Florida has the strongest sunshine in litigation act of the states that have similar statutes. Like the federal bill, the Florida law provides that if documents disclose a public hazard, the court must open them to the public.
Kaster first invoked the state’s antisecrecy statute in Jones v. Goodyear Tire & Rubber Co., which went to the state supreme court twice before the court ordered the defense to make its documents public. (871 So. 2d 899 (Fla. Dist. App. 2003).) He presented the sunshine argument in a later case, and the judge followed Jones and entered an order to open the documents. (Vaughn v. Goodyear Dunlop Tires, No. 01-2089-CA-B (Fla., Marion Co. Cir. Ct. 2006).)
Kaster thinks Florida lawyers are in a strong position to fight sealed court records. “Now with the Jones decision and the trial judge who applied Sunshine in Litigation afterward, there’s some pretty good ammunition for the plaintiff to get those records opened up,” he said.
Kaster said the bar and the media need to be educated about antisecrecy legislation-both state and federal.
“It’s a tool to help the public; it’s not a tool to help your client-at least not directly. But it helps their peace of mind,” he said. “Someone who’s lost a child is not motivated by money, because it does not do them any good. They’re more motivated to try to prevent the product from injuring someone else’s child.”
San Francisco lawyer Richard Zitrin, who teaches legal ethics at the University of California, Hastings College of Law, noted in Senate testimony that professional ethics require lawyers to put their clients’ interests ahead of society’s-and the client’s interest is to obtain the best settlement possible, even if it means agreeing to secrecy. Because only 15 to 20 states have enacted rules that try to keep discovery information public-and they aren’t uniform rules-the country needs a federal law, he said.
“Until the law is changed to prevent the practice, attorneys believing it to be in their client’s best interest to enter into a secrecy agreement that conditions the return of the ‘smoking gun’ to the defendant will simply do so,” Zitrin said. “The attorney’s perceived duty of zealous advocacy will trump the possibility of disclosure.”
At press time, the House had yet to introduce a companion measure.