Much has been written, with good reason, about increasing secrecy in government. The Bush administration's obsessive classification disorder seems to have infected every part of the federal government -- which seems to want to classify every document it can with a bright-red rubber stampped "Top Secret." As bad as that obsessive compulsive secrecy disorder can be in an open sociey, what is particularly worrisome is that it seems to be contagious.
Corporations are busy trying to keep their dirty laundry a deep dark secret. Fortuntely, there is a large national network of public interest lawyers that is battling those who are trying to keep the public in the dark and unable to get justice.
The hub of that network is Trial Lawyers for Public Justice, based in Washington, DC. The good news is this: They are fighting the good fight -- and winning.
TLPJ is a national, non-profit public interest law firm that seeks a more just society on many fronts -- and uses the courts to do so, in the best tradition of attorneys fighting on the front line for civil rights, on behalf of injured consumers, and the excesses of the powerful at the expense of the poor and defenseless.
TLPJ fights for justice through precedent-setting and socially significant individual and class action litigation designed to enhance consumer and victims' rights, environmental protection and safety, civil rights and civil liberties, workers' rights, America's civil justice system, and the protection of the poor and powerless. Trial Lawyers for Public Justice has special litigation projects that secure access to justice by battling unnecessary secrecy in the courts, mandatory arbitration abuse, federal preemption of injury victims' claims, and class action abuse.
"I never imagined we'd have to fight to keep public documents unsealed," writes TLPJ executive director Arthur Bryant, "but corporate efforts to expand court secrecy have gotten out of control."
He says that his organization is "now challenging a court secrecy order so astonishing that we successfully petitioned the Colorado Supreme Court to reach down and take the case directly from the trial court. The justices agreed to hear our challenge to a sweeping protective order that would make key evidence in an insurance bad faith case secret, even though the documents are already public and an injury victim's attorney got them without a protective order after they were disclosed in a prior case against the same insurance company....The Colorado Supreme Court granted review on January 5, 2006. Argument has not been scheduled. However, in its order, the Colorado Supreme Court stayed all proceedings in the trial court, and directed Farmers Insurance to show cause why the protective order should not be struck down."
The unusually broad protective order in Jessee v. Farmers Insurance was issued without the insurance company showing any good cause for secrecy. It requires the injury victim's lawyer to identify all documents in his files that relate to the subject of the case, and permits the insurer to stamp all those papers "confidential" -- regardless of where they came from, even if they came from the public domain. In addition, it requires that any court records containing those documents be filed under seal.
It's wrong for an insurance company to use a protective order to play keep-away with key evidence obtained from outside the case. And it's outrageous for a court to issue an order allowing it to do so. If this order stands, then key evidence of corporate wrongdoing that anyone uncovers -- free and clear from a protective order -- can be buried again at the whim of the accused wrongdoer.
In our briefs to the Court, which were authored by TLPJ Staff Attorney Leslie A. Brueckner, TLPJ Brayton-Baron Fellow Leslie A. Bailey, and Plaintiff's Counsel Randal R. Kelley, we arguedthat the order is an unconstitutional prior restraint on free speech that violates the First Amendment. [TLPJ also rebutted the pro-secresy argument]
Jessee was filed in a Colorado state trial court against Farmers Insurance for breach of contract, bad faith, and unfair and deceptive trade practices. The victim was injured in a car crash. She seeks damages for the insurer's refusal to pay uninsured motorist protection under her policy. The complaint alleges, among other things, that Farmers Insurance trains and incentivizes adjusters to limit the amount of compensation awarded on claims by linking the adjusters' pay to how much money they save their company on claims.
Jessee's trial attorney, Randal R. Kelly of Denver's Irwin & Boesen, P.C., had obtained documents that had been disclosed without a protective order in a South Dakota case and began using them in Jessee's Colorado case. Kelly had also received key documents relating to the company's practices from his own expert. All of these documents are readily available to the public. But the company moved for, and obtained, this so-called protective order that purports to preclude Kelly from disclosing to anyone documents he got without protection in another case and from other sources. The order even obligates the victim and Kelly to return all documents rubber-stamped as "confidential" to the insurance company when the case concludes.
Meet the good guys.
If you are going to be in a fight. It's good to know who you've got on your side.