Secrecy in the Courts News
Open Courts with Sealed Files: Secrecy's Impact on
American Justice
What Judges Can and Should Do About Secrecy in the
Courts
By Richard A. Zitrin © 2000
Executive Summary
Mr. Zitrin begins by disclosing his personal perspective
on secrecy issues. In his view, the public's right to know should outweigh
secrecy concerns as to both court records and discovery material. This follows
from his belief that even private disputes take on a quasi-public character
when brought to a public forum like a court. He has reached his position,
however, not through allegiance to any particular side in litigation or
to any public interest movement, but through his long-term involvement in
the field of legal ethics.
Mr. Zitrin next acknowledges that there are many practical
limitations on what courts can reasonably do, or be expected to do, about
secrecy in litigation, given the universal problem of inadequate judicial
resources. These realities require an analysis of secrecy that accounts
for several judicial cultures that arise either from that same lack of resources
or from personal or institutional philosophies. Accordingly, he divides
his analysis between courts that involve themselves in secrecy matters (subdivided
into situations into which the parties before the court either agree on
the matter in dispute or disagree on it), and courts that do not.
Mr. Zitrin then outlines what options judges have--what courts can
do about secrecy matters--within the bounds of each of the several judicial
cultures: maintain a "hands off" policy (usually the status quo position);
engage in an evaluative, or information-gathering, process when a secrecy
issue arises, followed by a decision on the merits of the specific case
before the court; or take a more "access-proactive" approach that promotes
openness and requires parties to justify any requests for secrecy.
Finally, Mr. Zitrin returns to his personal perspective and suggests what
he believes courts should do when faced with demands for secrecy.
He argues that the justifications for secrecy raised by its proponents (e.g.
privacy of civil disputes, promotion of settlements, possible encouragement
of frivolous lawsuits by opening up discovery material) have not been proven.
Also, he contends, there are enough examples of dangerous products and other
threats to safety that have been hidden behind secrecy agreements to warrant
a general policy of openness. He also argues that tolerance of secrecy may
actually foster attempts top mislead the courts. In closing, Mr. Zitrin
cites three individual judges who, despite the usual pressures of lengthy
dockets and limited resources, have helped to advance the ideal of open
court records and proceedings in the U.S.
I. Introductory Issues and Biases
The purpose of this paper is to augment and complement rather than duplicate
Professor Doré's work. Accordingly, I will attempt to minimize revisiting
both her overview of the issues and her review of specific law in the area.
I will focus instead, in essay format, on what choices are available to
judges as they deal with a variety of issues relating to secrecy in the
courts, as well as what suggestions I have for the choices courts and judges
should make in addressing secrecy vs. openness.
A. Personal Perspective
Because I intend to be prescriptive (or perhaps more accurately "suggestive,"
since it is those in my audience who wield the gavels while I--as any lawyer
appearing before members of the bench--have only words), I must confess
my biases before going further. First, I believe in "sunshine in litigation"
and openness of both court records and discovery. I reason that arguments
about the privacy of disputes should generally be outweighed by the public's
right to know. Some have strongly argued that civil courts exist to serve
"private parties bringing a private dispute."(1)
I believe, however, that even if the dispute began as a private one, once
the courts are involved it is at most a private dispute in a public
forum. The public nature of the forum is, to me, generally more compelling
than what once was the private nature of the dispute. I suppose this makes
me, in Professor Doré's terminology, a "public access advocate."
Second, although I have been a trial lawyer since my bar admission, I
come to my position not primarily from the perspective of a litigator with
either a plaintiffs' or defense perspective, but rather from my involvement
in the field of legal ethics. Having evaluated what is and what I believe
should be the ethical behavior of lawyers, and after seeing
my views evolve substantially over more than two decades in the field, I
have come to believe that the traditional model of the "zealous" advocate,
who does everything within the bounds of the law for his or her client almost
without regard to consequences, is both inappropriate and unnecessary to
being an excellent lawyer.
Yet, those lawyers--whether for plaintiffs or the defense--who might otherwise
agree with this perspective too often feel they have no choice but to accept
and even argue for secrecy. Because the rules of ethics generally (with
narrow exceptions) require putting the interests of the client ahead of
those of society, lawyers are bound to settle cases in ways that serve the
needs of specific clients even if they potentially harm the interests of
society as a whole. Unless counsel are operating in one of the very few
states with strong "sunshine in litigation" laws (and sometimes even then,
see infra), they may feel that there is little that can be done
when the defendant demands, and the plaintiff accepts, secrecy as a condition
of obtaining information or resolving a case.
Accordingly, in 1998, I proposed a new ethics rule that would prohibit
lawyers from "prevent[ing] or restrict[ing] the availability to the public
of information that the lawyer reasonably believes directly concerns a substantial
danger to the public health or safety...."(2)
Such an ethics rule would give counsel an opportunity (and, indeed, require
them) to take the high road of openness, notwithstanding the needs
of individual clients.
One assumption made in drafting this rule was that courts had little power,
inclination, or resources to investigate the facts behind stipulations entered
into by all counsel, much less the many agreements about secrecy that routinely
occur outside the court's field of vision. I understand, of course, that
most judges are ordinarily loathe to interfere with agreements made by counsel,
particularly those that occur outside their purview. Nevertheless, having
been asked to examine what courts might themselves do in the interests of
openness, I have come to believe that judges have several viable, even reasonably
practical, alternatives.
B. Practical Limitations on What Courts Are Able to Do
It would be foolish to comment on what courts can and should do about
openness and secrecy without recognizing the limitations some--perhaps most--judges
face in dealing with anything beyond the everyday business on their dockets.
Resources available to courts in general and trial courts in particular
vary widely from state to state, even from venue to venue within states.
Among these variations (there are undoubtedly many others) are:
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the extent to which the court can utilize magistrates, commissioners,
special masters, or "private judges";
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the extent of both system-wide and individual case and calendar management
problems, including the extent of overall court backlog and length of
each court's docket; and
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whether courts are segregated into issue-specific departments or at
least have separate criminal and civil departments.
These limits on resources present a particular problem to courts concerned
with openness and secrecy. Since much of what occurs that affects openness
happens outside the court's ordinary purview, see infra, taking
the time to examine these occurrences almost certainly means extra time
and work for both the judge and his or her staff beyond the ordinary functions
of the court. Given the press of ordinary court business, this can be a
daunting obstacle.
C. Two Important Variables: The Involvement of the Court and the
Agreement of Counsel
One can divide issues of openness and secrecy into two broad, general
categories: those that involve lawyers interacting with the bench, and those
that do not. This is undoubtedly an oversimplification, but I believe it
is useful to look at this issue from the point of view of the judge. That
is because there will be a considerable difference in the allocation of
judicial resources depending on whether or not the court is already
involved in the substantive issue.
Court "Involved". Among others, the following matters that commonly
require court involvement may raise issues of openness vs. secrecy:
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motions to compel discovery and for sanctions for discovery failures;
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protective orders;
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rulings about privilege, including attorney-client and work product;
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requests or motions to seal documents or testimony;
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motions in limine and other motions affecting trial evidence;
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motions to compromise claims where the court's approval is necessary
(e.g., bankruptcy, probate, class actions, cases involving minors, etc.)
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stipulations regarding any of the above;
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stipulations regarding post-trial settlement (including waivers of
motions for new trial or appeal, stipulated reversals of judgment, etc.)
It is obvious that the extent of judicial resources necessary to deal
with any of these matters will depend directly on whether the parties come
to the court in dispute or in agreement. For the most part, the court's
decision, or even a series of decisions is required where the parties are
in dispute, while if the parties agree or stipulate, all they seek is the
court's ratification. It is much easier--and far less time-consuming and
resource-intensive--for the judge to sign a stipulation and order than to
make a decision on the merits. But while the judicial resources needed to
decide the substance of the disputed matter may be vastly greater than the
resources needed to ratify a stipulation, the issues concerning secrecy
and openness may be identical. A court that elects to make an inquiry, ab
initio, about the validity of such a stipulation will usually be engaged
in a time-consuming, resource-intensive process that it could have avoided.
Court "Uninvolved". Jurisdictions vary in the extent to which
they require, or even permit, lawyers to make the court aware of their progress
in litigation, both procedurally and substantively. In the last generation,
the interests of judicial economy, concerns about the allocation of precious
court resources, the effect of technology, and the institution of "meet
and confer" requirements and the like have materially diminished courts'
record-keeping about cases--and issues within cases--that are resolved outside
the courthouse corridors. To the extent that document production requests,
for example, are no longer even filed with a court unless there is a dispute,
a court's ability to acquaint itself with a particular case, even if it
wants to, is considerably less than it was a generation ago.
Nevertheless, many matters that lie beyond the court's purview or knowledge
may have an important impact on the question of openness vs. secrecy. Most
of these relate to how discovery is handled by the parties--interrogatories,
deposition testimony, and, perhaps most significantly, document production.
In order to obtain discovery materials they seek, parties may have
to enter into private agreements to return documents after the case is concluded,
or agree not to disseminate deposition transcripts. In order to secure
a settlement, there may be these and other requirements to maintain
a veil of silence. If these agreements do not require judicial intervention
or even ratification, courts will ordinarily never learn of them.
In light of the foregoing, in discussing what courts can and should do,
I have broken down the analysis into three general areas: (1) where the
court is involved and the parties disagree; (2) where the court is involved
and the parties agree; and (3) where the court is ordinarily not involved
at all.
II. What Can Courts Do? What Options Are Available to
Judges?
To an extent, the options available to some judges will be significantly
affected by the laws in each jurisdiction. Existing, generally applicable
civil procedure rules and statutes may be as important, or more important,
than measures that specifically target secrecy. For example, the standards
for protective orders vary significantly among jurisdictions.
A. Maintaining the Status Quo, or a "Hands Off" Policy
(1) Bench involved, parties disagree. Most judges favoring a
"hands off" approach will resolve contested issues presented to them in
relatively traditional ways. For example, protective orders are likely to
be viewed more broadly, seen as a way to move the process of discovery along
in a manner that avoids costly court fights and may enhance the chances
of settlement.
(2) Bench involved, parties agree. Traditionally, most courts
have taken the view that so long as the parties agree, especially on discovery,
they have neither the time nor inclination to interfere. There are sound
public policy reasons for this, most tellingly courts' limited resources
and the difficulty (if not impossibility) of reevaluating the merits of
matters already agreed on. Judges who take this view are most likely to
accept the stipulations offered by counsel, including those that limit access
to discovery by persons not involved in the litigation.
The only likely significant limitation on a court with a "hands off" culture
is any "sunshine in litigation" requirement in force in that particular
jurisdiction that would limit the court's ability to accept secrecy. Currently,
only a few jurisdictions have sunshine measures of that kind that are strong
enough to either preclude courts from ratifying what they choose to, or
to create clear presumptions of openness that can only be overcome by specific
showings of necessity.(3)
(3) Bench not involved. Courts would not inquire into the private
agreements among the parties and their counsel respecting limitations on
disseminating information. Even in states with the broadest "sunshine in
litigation" approaches, there exists no affirmative duty on the part of
courts to make inquiries sua sponte into parties' agreements made
outside of court.
B. Evaluative, or Information-Gathering
(1) Bench involved, parties disagree. As part of the decision-making
process, these courts would evaluate the extent to which secrecy is a necessary
or appropriate condition of resolution of the dispute. This evaluation could
include making active inquiry to the parties, through counsel, regarding
the extent to which secrecy is actually appropriate, rather than merely
desired. Courts acting in this way will, for example, tend to regard claims
of trade secrets, work product, or other reasons for protective orders with
some degree of skepticism.
Courts evaluating the showing made in support of such claims will decide
on the merits, rather than granting pro forma acceptance of such
orders (or other secrecy devices) as the path of least resistance to resolving
contested issues. Such courts will also be more inclined to consider remedies
for inappropriate efforts at secrecy, including discovery sanctions.
(2) Bench involved, parties agree. Notwithstanding the agreement
of the parties, some courts would be interested in making an independent
evaluation of the legitimacy of the proposed agreement, at least to the
extent it "secretizes" information or issues related to the litigation.
This means that instead of merely accepting the stipulations of the parties,
these courts would require an actual showing that the limitations on access
or dissemination of information are actually warranted under the circumstances.
Although stipulations for protective orders may be the most common form
of proposed agreement, there are many others, including stipulations regarding
privilege or a privilege log, post-judgment stipulations including stipulated
reversals or vacatur, and various agreements relating to case settlement,
from filings under seal where court approval is necessary for stipulations
to change the name of the parties so that they would be unrecognizable to
anyone going to the court file to examine the case.(4)
(3) Bench not involved. Many (and likely most) courts, including
those that may have a substantial interest in making inquiries about the
necessity for secrecy in matters that come before them, will nevertheless
be unlikely to create inquiry into matters resolved by the parties and counsel
outside their purview. In federal court, or where state and local judicial
rules permit, courts may have options available such as standing orders
that require counsel to inform them when agreements involving secrecy are
entered.(5) In reality, of course, such orders
may be problematic: difficult to implement from a procedural point of view,
and even more difficult to enforce. The principal salutary effect of such
standing orders may be to enable counsel from one side to point to the order
as the reason why a secrecy agreement must be refused.
C. Presumed Open, or "Access-Proactive"
(1) Bench involved, parties agree or disagree. Courts can take
the "evaluative" process a step further by presuming, as do those states
with strong "sunshine in litigation" standards, that openness will be the
order of the day unless there is a specific, particularized showing of the
necessity for secrecy. In addition to skepticism about the reasons for secrecy,
this presumption would generally be based in part on a public policy perspective
that information likely to materially affect the public welfare should be
available to the general public. If this "openness presumption" were uniformly
applied, it would operate for all matters involving the courts, whether
the parties were in dispute or evinced agreement.
This presumption of openness could apply to all those matters involving
the court that are listed in part I.C. above. On the appellate level, this
could include both stipulated reversals(6)
and the somewhat counterintuitive process in a few states of "depublishing"
opinions--particularly controversial and potentially erroneous ones--to
avoid having them stand as precedent.(7)
Both standing orders and case-specific orders could be used. Orders, even
if broad, would almost certainly be enforceable; almost all courts have
recourse to a variety of sanctions, including monetary and issue preclusion
sanctions and contempt powers, to enforce their orders.
(2) Bench uninvolved. Obviously, judges have a limited ability
to monitor the activities of parties whose secrecy agreements or understandings
are never before the court. This is particularly true on a case-by-case,
or microcosmic level. Moreover, even among states with sunshine in litigation
laws that favor openness,(8) only Texas specifically
deals with "discovery, not filed of record,"(9)
and only Florida, arguably, has language sufficiently broad to cover discovery
and other matters not filed with the court.(10)
Accordingly, outside of the possibility of the standing orders referred
to above, there is little judges in the vast majority of states can do on
a case-by-case basis if they follow the culture of their courts to stay
uninvolved.
(3) Macrocosmic solutions. There is, however, a great deal courts
can do, even when a particular case's secrecy issues are not before them,
if they choose to look at the larger landscape. Here are some of the most
important possibilities:
They can implement court rules, locally and statewide, that actively promote
openness. If they choose, such rules can include a bar on secrecy even for
those matters, like much discovery, that are part of a case but not filed
or lodged with the court.
They can adopt a scheme of sanctions or discipline for those lawyers who
don't abide by such court rules. With the cooperation of the state's disciplinary
authorities, they can develop ethical requirements for attorneys along lines
such as those set out in my proposed amendment to ABA Model Rule 3.2, which
is reproduced in Appendix A.
Both trial and appellate courts can adopt policies of openness with respect
to their own proceedings. For trial courts, these might include revisiting
and revising broad definitions that are currently considered adequate justification
for protective orders, sealing documents, and the like. For appellate courts,
these might include reexamining and revising the rules on unpublished opinions,
partial publication, and depublication. Appellate courts could also examine
the informal or semi-formal practice in many states of avoiding mentioning
the names of certain offending attorneys or others when a written opinion
is issued. Although this practice appears most common in opinions about
prosecutors found to have committed misconduct,(11)
other sanitizations also occur.
III. Conclusion--What Courts Should Do: The
Case For Openness
A. What Courts Should Do
Given the personal perspectives set out in part I.A. above, it will surprise
no one that I believe courts should do what they can by taking
the "access-proactive" approaches I have described immediately above. The
suggested "macro" solutions can reach all four corners of civil cases, whether
before the courts or not. For the most part they can only be implemented
by a cooperative effort among members of the bench, with input from lawyers
and other interested persons. Some practices, like sanitizing or depublishing
court opinions, may be within the power of individual courts to change.
Those solutions that relate to cases where the court is directly involved
are easier to deal with case by case and court by court. But it is apparent
that the resources of any court that chooses to be proactive will surely
be taxed, particularly where the parties agree and the court declines to
accept that agreement without examination.
B. Why Courts Should Favor Openness
In addition to the perspectives with which I began this paper, there are
three important additional reasons why courts should favor openness.
The first relates to the claim of Professor Arthur R. Miller and others
that there exists only "anecdotal evidence," or what Miller calls "stories,"
that secrecy has ever prevented the public from learning vital information
on issues of health and safety. It is true, of course, that allegations
in a lawsuit --even an occasional jury verdict--don't prove anything. But
there is no evidence that openness actually encourages frivolous lawsuits.
More significantly, an examination of specific cases shows that many were
far more than mere "anecdotes," several involving products that were eventually
removed from the market.(12) Moreover, even
if legal and scientific experts disagree about whether something is truly
dangerous, the argument made by Professor Miller and others begs the more
fundamental question: Does the public have a right to know what the risks
are--and what the evidence is?
Second, while there have been numerous claims that secrecy is necessary
for settlement, these claims do not appear to have even strong "anecdotal"
support. I know of no studies demonstrating this, nor of any such claims
from the states with the strongest anti-secrecy laws.
Third, I believe that one of the natural consequences of permitting secrecy
is to foster the art of lying to or misleading the court. Perhaps the best
example of this is the Fentress case, which I hope to discuss in
my oral remarks, in which the Kentucky Supreme Court found that lawyers
who engaged in an ongoing trial after a secret settlement had already been
reached showed "a serious lack of candor with the trial court, and there
may have been deception, bad faith conduct, abuse of the judicial process
or perhaps even fraud."(13)
C. One Judge Can Make a Difference
Faced with limited resources and time, no judge can take on the job of
"secrecy cop" lightly. Nevertheless, it seems there have increasingly been
instances in which a single jurist acted alone in a way that helped maintain
openness in our courts. I close with the brief mention of three such examples,
which I hope to address more fully in my oral remarks.
1. In early 1995, Kentucky judge John Potter, suspicious of the actions
of the lawyers in the aforementioned Fentress case, changed his
minute order on his own motion from recording a dismissal after verdict
to "dismissed as settled." This act set off a controversy that resulted
in the discovery that the 28-plaintiff case had indeed been settled, though
the judge was never told.
2. In December 1997, California appeals court justice J. Anthony Kline
filed a dissent in which he said that "as a matter of conscience," he would
refuse to follow the California Supreme Court's decision allowing stipulated
reversals of court judgments as a condition of case settlement.(14)
Although Kline wrote that he would obey a direct order to implement a stipulated
reversal, he nevertheless was accused by the state's Commission on Judicial
Performance of "willful misconduct in office [and] conduct prejudicial to
the administration of justice." The case created a political firestorm as
well as front page news and lead editorials. A year and a half later, the
charges against Kline were dismissed, but stipulated reversals continue
in California.
3. Finally, the tobacco industry's wall of secrecy crumbled in April 1998
when the House Commerce Committee opened its files and unsealed 39,000 documents
after the Supreme Court refused to overturn Judge Kenneth J. Fitzpatrick's
broad December 1997 disclosure order in the State of Minnesota's suit against
the industry. But much of the most explosive and shocking documents, including
evidence of the Council for Tobacco Research's so-called "special projects"
unit, supervised and run by lawyers in order to use the attorney-client
privilege, had already been disclosed in 1992 in a published opinion written
by then United States District Court Judge H. Lee Sarokin.(15)
Judge Sarokin's opinion, overruling many of the tobacco companies' privilege
claims, was reversed and he himself was removed from the case. But the opinion
remained, providing the outlines of a road map for others, including many
state attorneys general, to use in the years that followed.
The architect of Texas Rule 76a, former Texas Supreme Court Justice Lloyd
Doggett, now a member of Congress, is another judge who made a difference.
As he put it, "To close a court to public scrutiny of the proceedings is
to shut off the light of the law."(16)
APPENDIX A
PROPOSED AMENDMENT
(Wording to be added is underscored.)
ABA MODEL RULE 3.2--EXPEDITING LITIGATION AND LIMITATIONS
(A) A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.
(B) A lawyer shall not participate in offering or making an
agreement, whether in connection with a lawsuit or otherwise, to prevent
or restrict the availability to the public of information that the lawyer
reasonably believes directly concerns a substantial danger to the public
health or safety, or to the health or safety of any particular individual(s).
Comment
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Dilatory practices bring the administration of justice into disrepute.
Delay should not be indulged merely for the convenience of the advocates,
or for the purpose of frustrating an opposing party's attempt to obtain
rightful redress or repose. It is not a justification that similar conduct
is often tolerated by the bench and bar. The question is whether a competent
lawyer acting in good faith would regard the course of action as having
some substantial purpose other than delay. Realizing financial or other
benefit from otherwise improper delay in litigation is not a legitimate
interest of the client.
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Some settlements have been facilitated by agreements to limit the public's
access to information obtained both by investigation and through the
discovery process. However, the public's interest in being free from
substantial dangers to health and safety requires that no agreement
that prevents disclosure to the public of information that directly
affects that health and safety may be permitted. This includes agreements
or stipulations to protective orders that would prevent the disclosure
of such information. It also precludes a lawyer seeking discovery from
concurring in efforts to seek such orders where the discovery sought
is reasonably likely to include information covered by subsection (B)
of the rule. However, in the event a court enters a lawful and final
protective order without the parties' agreement thereto, subsection
(B) shall not require the disclosure of the information subject to that
order.
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Subsection (B) does not require the disclosure of the amount of
any settlement. Further, in the event of a danger to any particular
individual(s) under Subsection (B), the rule is intended to require
only that the availability of information about the danger not be restricted
from any persons reasonably likely to be affected, and from any governmental
regulatory or oversight agencies that would have a substantial interest
in that danger. In such instances, the rule is not intended to limit
disclosure to persons not affected by the dangers.
1. Arthur R. Miller, "Confidentiality, Protective Orders,
and Public Access to the Courts," 105 Harvard Law Review 427 (1991)
2. This proposed rule, originally presented at Hofstra
University's symposium "Legal Ethics: Access to Justice," was published
at 2 Hofstra J. Inst. Stud. Leg. Eth. 115 (1999). The text of the proposed
rule is attached hereto as Appendix A.
3. See, e.g., Texas Rule of Civil Procedure
76a, which requires not only that the presumption of openness has been overcome,
but that there is "no less restrictive means" than allowing secrecy. See,
also, Florida Statute 69.081 ("Sunshine in Litigation Act"); Washington
Revised Code, 4.24.601 and 4.24.611, and Los Angeles (Calif.) County Local
Superior Court Rule 7.19 requiring a "particularized showing" as to each
document involved. Illinois's recently proposed Code of Civ. Proc. 2-1306
is very similar to the Florida statute.
4. I know of no reported cases directly addressing the
propriety of such name change stipulations, but during the course of research
for chapter 9 of The Moral Compass of the American Lawyer (Ballantine,
1999), my co-author Carol M. Langford and I learned anecdotally of several
such circumstances involving professionals who did not want their names
sullied by being found in the court record and conditioned settlement on
such "sanitization." Two of these instances are personally known to us,
though the attendant umbrella of confidentiality makes it impossible to
cite to them. Indeed, the very nature of the attendant confidentiality makes
such name-change situations extremely difficult to uncover, as anyone connected
with the matter who disclosed information would be breaching a confidentiality
order or agreement.
5. Carol Langford and I have become aware anecdotally
of such orders, including a few in Northern California. To my knowledge,
no study of such orders has been conducted.
6. See, e.g., Neary v. Regents of Univ.
Of California, 3 Cal.4th 273, 834 P.2d 119 (1992).
7. See, e.g., California Rules of Court 976-979,
especially Rule 979.
8. While it is beyond the scope of this paper, it is
worth noting briefly that some of the measures described as "favoring openness"
or "anti-secrecy" may actually foster secrecy, either by ratifying exceptions
to openness such as the traditional broad definition of what is appropriate
for protective orders (including "annoyance," and "embarrassment"), see,
e.g., New Jersey Rule of Court 4-10.3 and New York Rule 3103(a), or by seeming
to actually favor a presumption of secrecy, see, e.g., Mass.
Rules of Impoundment Procedure.
9. Texas Rule 76a(2)(c).
10. "Any portion of any agreement or contract which
has the purpose or effect of concealing a public hazard...." Fla. Stat.
69.081(4). Note the contrast with the language of Wash. Code 4.24.611, limiting
the agreement to those "settling, concluding, or terminating" a relevant
claim. The recently proposed Illinois statute has language similar to Florida's
on this question.
11. See, for example, the informal survey
of this issue undertaken by journalist Edward Humes in Mean Justice
(Simon & Schuster, 1998).
12. There is no space here to document what my co-author
Carol M. Langford and I
have articulated elsewhere on several previous occasions. See,
e.g., The Moral Compass of the American Lawyer, supra,
note 4, Chapter 9, and, most recently, "It Is Time to Question How Our Legal
System Can Afford to Allow Secret Settlements," 7 [ABOTA] Voir Dire
No. 1, at 12 (Spring 2000). Among the examples of secrecy involving
what appear to be circumstances of clear potential danger were the drugs
Halcion and Zomax, the Shiley heart valve, the Dalkon Shield intrauterine
device, and General Motors side-mounted gas tanks. (Note that such dangers
are not limited to products, but also include environmental toxins, serial
child molesters, and other circumstances.)
13. Potter v. Eli Lilly & Co., 926 S.W.2d
449 (Ky. 1996). We have commented on Fentress at length elsewhere
(see note 12).
14. Morrow v. Hood Communications, Inc., 59
Cal.App.4th 924 (1997). Judge Kline was commenting on the Neary
case, supra, note 6. His interesting defense of his dissent can
be found in California Lawyer, September 1998, at 25.
15. Haines v. Liggett Group, Inc., 140 F.R.D.
681 (D.N.J. 1992), rev'd 975 F.2d 81 (3rd Cir. 1992).
16. Lloyd Doggett and Michael J. Mucchetti, Public
Access to Public Courts: Discouraging Secrecy In the Public Interest,
69 Tex. L. Rev. 643 (1991).
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