When corporations get sued, they hire armies of lawyers if necessary to slip out from under the litigation, using any and all means. The cornerstone strategy of a corporate lawyer is delay, and lots of it. I know, I used to be one.
Every little allegation is disputed, innumerable motions are brought, extensions, continuances, anything to delay the impaneling of a jury of 12 ordinary people to decide the corporation’s fate. But when the allegations are too egregious, or the evidence against them is too strong, or the exposure too great, or when it’s otherwise cost-effective, the corporate lawyers settle. Indeed, this happens in most cases.
But under current law most judges will grant requests to keep the settlement confidential, with no admission of any guilt or liability, so that the public is left in the dark as to what happened. Corporate lawyers also love their "protective orders." Protective orders make information exchanged in discovery secret, not to be disclosed to anyone other than specified parties, typically the litigants and their reps. Most times, the litigants themselves are able to deem information confidential under protective orders without much, if any, oversight from the court.
More and more, corporate lawyers are able to wield their vast resources to convince courts to make jury trials secret as well. (Their abuse of the attorney-client and work product privileges to keep things under wraps is a whole other story, and perhaps the subject of a different post.)
The end result is that the public at large is unable find out about what exactly happens in these cases. Those smoking gun documents, that damaging testimony, the information proving that the corporation and its execs have little, if any, regard for the health, safety or well-being of their customers, clients, shareholders, contractors and/or the public–all are kept under lock and key, never to see the light of day.
To take one example among many, very many:
The popular painkiller Zomax, manufactured by McNeil Pharmaceuticals and linked to a dozen deaths and more than 400 severe allergic reactions, was taken off the market only after McNeil settled dozens of lawsuits with sealed settlements. In 1990, Devra Lee Davis testified before the Subcommittee on Courts and Administrative Practice about how she nearly died from taking this legally prescribed drug. She later learned that the company had known that the drug could kill some people and used judicially sanctioned secrecy to keep the information from the public and from others injured by the drug.
Significantly, in the case of settlements the plaintiff(s) and the plaintiffs lawyers, so long as they’re only looking out for their own pocketbooks, have no incentive to object to secrecy. They’re getting paid and their harms "compensated" either way.
The so-called Sunshine In Litigation Act has been getting tossed around in Congress and committees for a few years now. It purports to address in the federal courts the comprehensive secrecy, hatched primarily by clever corporate lawyers, that pervades litigation in this country. It limits a court’s ability to order non-disclosure of information by forcing courts first to weigh "the public interest in the disclosure of potential health or safety hazards" with the "specific and substantial interest in maintaining the confidentiality of the information."
But it also creates a "rebuttable presumption that the interest in protecting personally identifiable information relating to an individual’s financial or health, or other similar information, outweighs the public interest in disclosure."
I think it’s plain as day that the business lobby has its fingers in this pie. First, the Act’s balancing test will not only put more money into the pockets of corporate lawyers, but will also give corporations and their captive judges plenty of wiggle room. Because there’s always some kind of private interest in confidentiality, or at least one that can be made up. And give the corporations and their lawyers an inch, and they’ll take nine yards.
Second, anytime corporations have a so-called "rebuttable presumption" on their side, it’ll get applied. A lot.
Finally, why limit this to health or safety hazards? What about, among other things, financial hazards, moral/ethical hazards and the general public’s right to know how corporations, which were originally chartered to serve the public interest, are conducting themselves?
I suppose real change can only come in increments. And the Sunshine in Litigation Act is a start. That is, if it gets passed–a big "if," though somewhat smaller after the thump of November 4th, 2008.
Why can’t all aspects of all litigation (save for small core of sensitive information such as SSNs and the maybe sensitive medical information of strangers to the case) be made public? Why should anything be made secret? Why so secretive? I think we all know the answer to that.
Perhaps the Obama administration can use its mandage to put some more teeth in this bill and push it through quickly. Think of how much less litigation we’d have, and how much more careful the business community would be in the first instance, if litigation in this country were to be exposed to some real sunshine.
-----
Orginally posted on The Post Partisan