I'm just sketching out an idea for now. “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.” – Representative John Dingell

After decades of inability to stem the tide of the contract-to-fiduciary movement in law, major corporations have redirected their energy from the substance to the procedure of law. Redress in civil litigation has long ceased to be a function of merit. Justice in our legal system is largely bought and sold. Notice pleading and liberal discovery have borne the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments.

Armies are expensive and the contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. The few who manage to procure an army are oftentimes unable to share the information they have obtained with others. Supposedly, there is a presumption of access to documents related to litigation proceedings in the US (Firestone). However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document.

Open Access is an Illusion

The weak “good cause” standard for protective orders essentially eviscerates all notions of open access. Rule 26(c)(1) of the FRCP states that “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” What constitutes “annoyance” or “undue burden” is amorphous. Even the definition of traditionally private information like trade secrets has become bloated, including revenue information and profits (such information is publicly filed with the SEC). Judge Weinstein’s injunction related to the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.”

Secrecy is Costly for Plaintiffs

In reality, public access to information and the resolution of cases on the merits are not mutually exclusive. Protection orders and sealing mean that subsequent litigants retain lawyers who need time to learn the details of the case and must begin the process of discovery and scavenging through the data dump anew. If gag orders are still in effect, plaintiffs are limited in potential witnesses as well. For repeat defendants, each subsequent discovery process can be cheaper because the defendant uses the same lawyer who does not need to be brought up to speed, knows where to find all the needed documents, and if utilizing electronic discovery, may simply make copies of documents previously distributed. The documents the plaintiff produces are generally not nearly as voluminous as the defendant’s and the plaintiff’s facts do not differ substantially from those of previous plaintiffs.

Of course plaintiffs’ costs are in actuality far greater than those involved in discovery. Secrecy also means that by covering up defective products or toxic leaks, more unsuspecting victims are created. Consider that Bridgestone/Firestone tires killed 103 people by 2000, even though the Van Etten discovery commenced two years earlier.

Who Represents the Public Interest?

Many plaintiffs agree to secrecy because they are paid a premium. Neither the plaintiff nor the defendant has the interests of future plaintiffs in mind. While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public as well.

New Arguments for Open Access

In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, the Court stated in 1984, “abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the . . . the government's substantial interest in protecting the integrity of the discovery process.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process worth protecting.

Rampant discovery abuse has not improved since 1984 despite revisions to the FRCP and new (confusing) e-discovery rules. A strict scrutiny standard for pre-trial protection orders may be exactly what is needed to reverse this trend. If parties are aware that all discovery documents are presumptively public, but remain subject to mandatory redaction, they will be less likely to dump items like thousands of invoices for pretzels, which include account numbers, or irrelevant documents they truly do not want exposed. They may also seek judicial discretion to narrow overly broad production requests. This will shift costs to the cheapest cost avoider: the document owner will have to parse through his own records, rather than forcing the other party to do so. Parties may be less likely to turn over relevant documents, but that has always been the case and sanctioning is available. Truly private information could still be sealed if a party indicated particular documents and demonstrated with specificity the harm that would result from their disclosure. For defendants, keeping discovery public would lower the costs of production: subsequent plaintiffs would be privy to the discovery received by other litigants and future plaintiffs may be eliminated entirely. Overall costs for defendants may not be lowered, but unlike the costs of discovery to potentially innocent parties, the prevention of further meritorious lawsuits is hardly a legitimate judicial concern.

Where all abdicate any responsibility to the public, the public should at least be given the chance to fend for itself. When the courts don’t want to get their hands dirty in discovery, and they want to sweep the results under the rug, the justice system ceases to be about truth finding. It becomes just a war of attrition. To that end, it can be argued that unnecessary secrecy in litigation is as much a violation of equal protection as the 1st Amendment. Unwilling or unable to exercise due discretion, judges are essentially shifting costs onto the public.

-- KateVershov - 05 Apr 2008