Why Americans Should Oppose Secrecy in Litigation

Secrecy in our state and federal courts undermines the right of every American citizen too know about dangers to their health and safety. This insidious practice keeps vital health and safety information out of the public's reach—and it leads to even more needless injuries and deaths caused by defective products. If we change anything in our civil justice system, it should be this practice, which leads to untold suffering and increased legal costs.

Since at least the mid-1970s, the disturbing practice of secrecy has taken root in courts across America. Defendants in civil litigation, as a condition to discovery or settlement, have sought to keep private the information that emerges from litigation.

Secrecy in litigation can take many forms:

• Protective orders, which prohibit parties who receive information in a case from distributing it to others.
  
  
• Confidentiality agreements, which can require that certain matters, once discussed or agreed to by the parties, remain confidential. A confidentiality agreement, for example, may prohibit disclosure of the cause of injury, the terms of settlement, or even the fact that a claim was ever filed.
  
  
• Sealed court files can bar access to any details of a case, including the parties' names. In such cases the court records may simply be titled "Sealed v. Sealed," giving no information about who sued whom and for what reason.
  
  
• Unpublished (or depublished) court opinions and negotiated court orders that withdraw or otherwise negate the effects of legitimate decisions by taxpayer-supported courts can give parties who have superior financial resources extra chances to prevail in litigation, regardless of the merits of their cases.

Secrecy orders should not be enforced unless they meet stringent standards to protect the public interest. The following points illustrate why secrecy should be disfavored in American courts.

Secrecy keeps vital health and safety information from consumers.
American consumers have a right to know whether products or services are defective or hazardous. The confidential settlements of early litigation involving the Bjork-Shiley artificial heart valves kept life-threatening defects secret even as more valves were implanted in patients. Hundreds of patients died as a result of valve failure. In other cases, doctors have avoided disciplinary charges because court files, which would document negligent care, have been sealed. And the manufacturer of a drug that caused internal bleeding secured a secrecy order barring the injured consumer's attorney from disclosing information to any government agency—even the FDA!

Secrecy creates more litigation.
The most effective way to prevent injuries and deaths—and resulting tort claims—is to ensure that consumers have adequate information about the safety of products and services. The free flow of information can lead more awareness about hazards and opportunities to avoid harm, with the result that there will be fewer injuries—and less litigation. Secrecy orders, however, prevent consumers from making informed decisions. Secrecy permits defendants to bury "smoking gun" evidence and limit public debate on real hazards associated with their products. In a series of suits over faulty fuel systems, General Motors obtained protective orders for internal company documents showing that financial considerations had been allowed to outweigh safety concerns. And a manufacturer repeatedly used secrecy to stifle attorneys from revealing dangerous seat belt hazards.

American courts are public institutions.
Records and materials obtained during civil litigation are generally public information. The courts and what goes on within them are the province of the people. When a private dispute is taken before a city council, a state regulatory body, or a court it is no longer purely private. Taxpayers finance public institutions and have a fundamental right to know how such matters are being resolved. Private litigants should not be allowed to determine what the public will see. Secrecy orders, however, threaten to turn courts into mere deciders of private disputes.

American courts operate under a presumption of openness.
As public institutions, our courts function under a presumption of openness. This presumption should not be overcome except in extraordinary circumstances and for very limited purposes. Secrecy orders restrict the information available to consumers, the media, and government regulatory agencies, thereby threatening to obscure injury patterns caused by dangerous products.

Secrecy threatens to undermine public respect for courts.
If Americans lose faith in courts and their ability to function for the public good, then confidence in our whole system of government begins to erode. Public trust in government's ability to protect consumers is clearly frustrated when secrecy is allowed to hobble health and safety initiatives.

Updated March 18, 2005