RISING SECRECY IN CIVIL CASES PROMPTS LEGISLATIVE BACKLASH

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92M00732R001000040037-3
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 3
• Document Creation Date: December 23, 2016
• Document Release Date: April 15, 2014
• Sequence Number: 37
• Publication Date: March 17, 1989
• Content Type: MEMO

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Rising Secrecy in Civil Cases
Prompts Legislative Backlash
Calls for Limits Reflect Consumer Concerns
By Elsa Walsh
Washington Post Staff Writer
? Several lawmakers?including
some in Maryland, Virginia and the
Congress?have undertaken sep-
arate and unprecedented efforts to
enact legislation aimed at curbing
the growing use of secrecy in civil
lawsuits involving questions of
health and safety.
? Secrecy procedures have become
entrenched in the past 15 years as a
favored way for companies and oth-
er parties in lawsuits to avoid the
disclosure of sensitive or potentially
damaging information. Attorneys
also use them to bargain for larger
settlements, and judges rely on
them as useful tools to clear
crowded court calendars.
The legislative proposals face
stiff opposition from corporations
and the insurance industry, which
tend to view lawsuits exclusively as
disputes between private parties.
They say the secrecy procedures
are their only protection against the
disclosure of proprietary informa-
tion of interest to competitors.
The initiatives, which have the
backing of several consumer
groups, include:
? A bill that has won majority sup-
port in both houses of the Virginia
General Assembly and that would
allow attorneys to share with each
other confidential documents that
they obtain from companies in lit-
igation. The measure, introduced
by Del. Bernard S. Cohen (D-
Alexandria), is awaiting final action
in the House of Delegates after mi-
nor amendments were made Friday
by the Senate. If approved, the law
would make Virginia the first state
in the country to legalize such shar-
ing.
Although the legislation would
not allow attorneys to share the
documents directly with the public,
supporters say it would significantly
increase the likelihood that impor-
tant safety information would reach
government regulators and even-
tually be aired publicly at a trial.
? A bill in Maryland, sponsored by
Del.' Samuel I. (Sandy) Rosenberg
(D-Baltimore), that would make it
more difficult for judges to seal rec-
ords or close court proceedings. A
similar measure is pending in the
Texas Legislature.
? A bill in Congress, introduced by
Rep.. Cardiss Collins (D-Ill.), that
would permit attorneys to share con-
fidential company documents with
safety regulators and each other.
In addition, Sen. Arlen Speeter (R-
Pa.) has announced his intention to
introduce federal legislation, while
Sens. Edward M. Kennedy (D-Mass.)
and Paul Simon (D-Ill.), who like
Specter are members of the Senate
Judiciary Committee, have said they
may submit bills. Rep. John Conyers
Jr. (D-Mich.), chairman of the House
Government Operations Committee,
also has announced his intention to
hold oversight hearings to review
how court secrecy procedures "un-
dermine ..the health and safety pro-
cess set up by the federal govern-
ment," according to his chief aide, Ju-
lian Epstein.,
"Everyone is sort of working to-
gether to find a way to come up
with something that will have a
meaningful difference," said a
spokeswoman for Rep. James
Scheuer (D-N.Y.), member of the
subcommittee on commerce, con-
See SECRECY, B9, Col. 1
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? .
THE WASHINGTON POST
Consumer Concerns Reflected in Efforts
To Limit Secrecy Orders in Civil Cases
SECRECY, From B1
sumer protection and competitive-
ness. "Its time has come."
The proposals that may draw the
most opposition are those that
would restrict judges' broad discre-
tion to grant protective orders dur-
ing the early stages of a lawsuit.
Such orders permit attorneys in a
dispute to share confidential doc-
uments on the condition that they
not share them with anyone else.
Collins filed a similar version of
her legislation as an amendment to
another bill last year, but the other
lawmakers said their measures
were prompted, in part, by a recent
series of articles in The Washington
Post on eourt secrecy. The Post re-
ported that judges routinely grant
requests for ' protective orders in
the pretrial stages of lawsuits with-
out reviewing any of the confiden-
tial documents. Because more than
90 percent of most lawsuits are set-
tled before trial, the information is
rarely made public or brought to
the attention of government safety
regulators.
For example, General Motors
Corp., in defending itself against
scores of lawsuits filed by victims of
fiery car crashes, avoided that type
of public debate about the safety of
its gas tanks by obtaining protective
orders preventing the disclosure of
key documents.
Johnson & Johnson adopted a
similar strategy in defending itself.
against more than 600 lawsuits that
followed the company's decision to
withdraw its popular painkiller
Zomax from the market after re-
ports of hundreds of adverse reac-
tions to the drugs.
Specter's proposal would make it
far more difficult for judges to grant
protective orders. According to his
administrative assistant, Carl Feld-
baum, Specter's initiative, which is
being drafted, would require judges
to "consider the public interest be-
fore granting a protective order"
"The public courts
have been closing
the door on a lot of
information that
could have saved
lives and prevented
injuries for too
long."
? Ralph Nader
and establish a three-pronged test
that would weigh heavily toward
public disclosure, including proof
that no less restrictive alternative
is available.
Such measures concern lawyer
Victor E. Schwartz, author of a text
on product liability and general
counsel to the Product Liability Al-
liance, which represents the inter-
ests of manufacturers. Schwartz
said the current procedures "are
one of the greatest means we have
of facilitating settlement negotia-
tions and not going to trial." He sug-
gested that a more appropriate
remedy for ferreting out defective
products would be to strengthen re-
gulatory reporting standards and in-
vestigations.
Others, such as consumer advo-
cate Ralph Nader, disagree. "The
public courts have been closing the
door on a lot of information that could
have saved lives and prevented inju-
ries for too long," he said.
The Post series also reported
that several local judges have
sealed cases in which doctors were
accused of professional misconduct.
Implicit in the sealing orders was an
understanding that the information
would not be brought to the atten-
tion of regulatory authorities.
Under the Maryland bill, a re- '
quest to seal court records or pro-
ceedings would trigger an automat-
ic hearing, and state judges would
be required to give three-day notice
to the public and the media, a pro-
cedure long advocated by' consumer
groups such as Public Citizen, which
unsuccessfully proposed that a sim-
ilar process be adopted in U.S. Dis-
trict Court here nine years ago.
Public Citizen has fought for ac-
cess to confidential documents in
several courtrooms across the
country, winning a federal appeals
court ruling last fall that said public
policy dictated that the confidential
material in a liability case against a
cigarette manufacturer should be
made available to the public.
"The problem has been and re-
mains acute," said Collins, whose bill
would permit safety regulators to in-
spect the confidential documents in
addition to permitting the sharing of
the documents among attorneys with
similar cases. "The big loser contin-
ues to be public safety."
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