The Danger of Court Secrecy
Posted by John Sedgewick - 29/01/11 at 11:01 amSecrecy is one of the weapons used by defendants in product liability cases to limit access to justice. Secrecy demanded as a condition of producing information in the context of lawsuits and secrecy and destruction of evidence demaneded in the context of settlement are both intended to keep people who may have claims similar to those of the plaintiff from learning about evidence that may help their case.
In the context of information exchange in a lawsuit, called discovery in civil cases, defendants often exaggerate the scope of information they claim to be a trade secret and demand that plaintiff keep the information hidden as condition of producing it. For example, if a component part of a machine has been modified to eliminate a defect, the manufacturer may claim that the new design is a trade secret which should be kept from the public. However, legimate trade secret protection does not to extend to information that has been otherwise publicized. Replacement parts on equipment sold publicly can be seen, measured and tested by anyone who is aware that the parts are present. The only benefit to keeping details about replacement parts secret is that people injured by the prior version of the product may not realize that they were injured by a defect that has now been eliminated from the product. This kind of secret is not what the law or the courts intend to protect.
In the context of settlement, the secrecy problem is worse. Once plaintiff has gone to the expense and trouble of bringing a lawsuit to convince the defendant that he or she can prove the product to be defective, and after trying to defeat the plaintiff in every way possible, the defendant may agree to settle. Often, such settlement agreements are conditioned on the plaintiff’s promise of secrecy and the demand that all evidence of defect, all proof such as test results, alternative designs, deposition transcripts, expert reports, and damaging photographs, be destroyed. In such cases, an injured plaintiff’s resources and energy may be exhausted and the will to fight for the protection of other victims may be overcome by the need for peace, the need for resolution of conflict, and, frankly, the need for settlement money. At that point, there is no one looking out for the public interest in the free flow of information. The defendant often takes advantage of its market power and clamps a demand for secrecy on all that the plaintiff has learned.
Individual plaintiffs have a hard time fighting for the broader public interest in limiting confidentiality orders and secrecy demands to information which can legitimately be labeled secret. Protecting the broader public interest requires the attention and efforts of those of us not directly involved as parties to a particular case. To join the fight against secrecy in litigation, read the postings on the dangers of excessive court secrecy at www.publicjustice.net
Public Justice is a great organization dedicated to protecting every individual’s right to access to the courts and the information that flows from enforcement of individual rights. It is one of the leaders in the fight against courtroom secrecy. You can join the fight against secrecy by supporting Public Justice or by joining as a member.
