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AIEG And Public Justice Join In Fighting Court Secrecy – We Need You In The Fight

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Arthur Bryant

The past year was unprecedented in the world of auto safety. The world learned of ignition switches that could fail, causing loss of control and airbag non-deployment; airbags that shoot shrapnel into the occupant compartment when deploying; guardrails that skewer cars rather than cushion their impact; and other appalling defects resulting in one fifth of all cars on the road in America being recalled.

Sadly, there is evidence that manufacturers knew of these deadly defects years before conducting recalls and that court secrecy orders helped them hide these defects and keep dangerous products on the market.

This past year, the world found out what we have known for decades: court secrecy kills. By sealing discovery and court records, including during settlements, courts aid and abet companies in keeping evidence of deadly products from consumers.

For decades, two organizations have led the fight against court secrecy: AIEG and Public Justice. These organizations are joining forces to fight the travesty of court-sanctioned secrecy hiding dangers to the public.

AIEG – standing firm against non-sharing discovery protective orders. For decades, the Attorneys Information Exchange Group (AIEG) has led the charge against protective orders that prohibit plaintiffs’ lawyers from sharing discovery documents with lawyers for other consumers hurt by the same product.  AIEG is the leading collaborative organization of lawyers representing victims of unsafe product designs, particularly automotive products. AIEG’s members commit to doing all they can to make the evidence of public dangers that come to light in their lawsuits available to other injured consumers seeking justice. AIEG members have access to the organization’s work product resources for fighting secrecy orders including samples of agreed orders, sample briefing opposing non-sharing provisions in many jurisdictions, and case law in all jurisdictions upholding the principle of discovery sharing among plaintiffs with similar cases. AIEG stands with its members in fighting restrictive protective orders that lock up evidence of public dangers.

Public Justice – Court Secrecy Project fights to keep court records open to the public. For decades, Public Justice has fought for public access to court records about dangerous products – documents used in support of motions, at trial, or issued by judges. A national public interest law firm supported by – and able to call on and work with – over 2,500 of the top plaintiffs’ lawyers in the country, Public Justice often represents public interest groups like the Center for Auto Safety or injury victims to intervene in lawsuits to open up sealed documents and files. For instance:

  • Public Justice intervened to unseal the trial transcript and exhibits showing Cooper knew of defects in its tires, working closely with AIEG members. Toe v. Cooper Tire and Rubber Co.
  • Public Justice successfully brought to light long-sealed court records about a defective Remington rifle that fires when no one pulls the trigger. Aleksich v. Remington Arms Co.
  • Public Justice helped unseal records showing a leading pharmaceutical company ghost-wrote medical journal articles to promote its hormone replacement drug. In re Prempro Products Liability Litig.
  • Public Justice intervened on behalf of the Center for Auto Safety, and persuaded the court to unseal its decision sanctioning Honda for its expert witness’s tampering with critical evidence. Davis v. City of Auburn.
  • Public Justice joined and just helped win the fight to open up court records in the Trinity guardrails litigation in Texas, in which a jury found the guardrails endanger motorists. Unites States ex rel. Joshua Harman v. Trinity Industries.
  • Now, Public Justice is battling for access to reams of sealed and redacted court records about defective power modules in potentially millions of Chrysler, Dodge, and Jeep Vehicles. Velasco v. Chrysler Group, LLC.

Separately, AIEG and Public Justice have done a world of good, keeping evidence of public dangers unsealed. Together, we are redoubling our efforts in light of the widespread, continuing damage done by unjustified court secrecy orders.

We need you in this fight against deadly court secrecy.

We can’t stand idly by while courts participate in endangering the public. We need to be at the forefront of educating judges and lawyers that it is wrong to keep the lid on evidence of public dangers, the law supports discovery sharing – to provide efficient and inexpensive access to evidence for all litigants, and the law requires that the courts and their records be open to the public in all but the most extreme situations.

Doing your part:

  • Never agree to a discovery protective order that prevents you from sharing what you find with other plaintiffs. Commit to taking the time to fight restrictive protective orders. Contact AIEG’s Protective Order Committee if you need assistance.
  • Never agree to seal evidence of public dangers as a part of case proceedings or settlement. Take steps necessary to make sure public access to the documents are preserved.
  • Contact Public Justice if you become aware of dangers to the public sealed in court records – either trial evidence or information filed with the court. Seek Public Justice’s assistance in getting those records unsealed. Public Justice has fought this fight for decades and can help you in many ways – from providing sample briefs and case law to co-counseling with you to intervening on behalf of a public interest group to fight for public access.

Please don’t do nothing. We can’t have more of the same. We can’t have another year like the last one. The revelations of widespread suppression of evidence of public dangers provide an opportunity for us to educate judges and other lawyers about the disastrous effects of secrecy. Let’s not squander this opportunity. Together, we can help the courts turn the corner on this shameful legacy, and return the justice system to its rightful role in illuminating, not hiding, evidence of public dangers.

Thank you for joining us in this fight.

This blog originally appeared on Public Justice on October 13, 2014. Reprinted with permission. 

About the Authors: Arthur H. Bryant, Chairman of Public Justice, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts. The National Law Journal has twice named him one of the 100 Most Influential Attorneys in America.

Lee Brown is the president of AEIG, the Attorneys Exchange Information Group.

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USA Today Editorial: Court Secrecy Kills

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USA Today has just run a startling and powerful editorial that shines a bright light on a dark practice. All too often, corporations that have manufactured defective and sometimes deadly products, or are engaged in other severely illegal behavior, ask courts to cover up the wrongdoing. Through the excessive use of secrecy orders, far too many courts have sealed evidence and allowed corporations to conceal facts that – if they had become publicly known – would have stopped dangerous and illegal behavior.

In particular, USA Today focuses on the case of Rich Barber, whom we had the privilege of successfully representing in a challenge to abusive court secrecy. Rich’s son was killed because a Remington rifle had fired without the trigger being pulled due to a design defect that Remington knew about and concealed for decades. USA Today argues that a pattern developed over a number of cases: a particular plaintiff would discover key internal documents of the gun manufacturer relating to the defect and its knowledge, and Remington would settle the cases and demand (and get) broad secrecy orders sealing up the evidence. As a result, the public didn’t learn of the defect for many years, and many more people died.

USA Today notes that Rich Barber’s work, and that of Public Justice, helped break down this wall of secrecy. Rich championed important legislation in Montana that now restricts courts from sealing records in cases involving public safety.

I urge you to read USA Today’s editorial in its entirety, and to share it with others. Their editorial board put the entire problem in perspective:

Clever use of court secrecy – confidential settlements and ‘protective orders’ to seal documents – helped keep evidence of the rifle’s potential dangers under wraps. Had court documents been public, injuries might have been prevented and lives saved.

This blog originally appeared in publicjustice.net on December 30, 2014. Reprinted with permission.

About the authors

F. Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy.

Leslie A. Bailey represents consumers who have been cheated, advocates for the public’s right of access to court records, and litigates complex public interest appeals in federal and state courts throughout the country.  As a leading expert on the enforceability of arbitration clauses in consumer contracts, she has represented plaintiffs and amici in numerous arbitration-related appeals

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