Between June of 2019 and January 2020, Reuters released a multi-part investigative series explaining how secrecy within the federal court system dealing with products liability cases curtails the public’s access to information regarding unsafe products—with sometimes lethal consequences. Public access to court records is considered fundamental to the U.S. judicial system. However, judges often grant protective orders that give companies latitude in designating the material exchanged between parties in the discovery process as “confidential.” Further, judges often grant motions by companies to file court records “under seal.”
This widespread practice has hidden access to information regarding public health and safety while diminishing the ability of consumers—and regulators, to be alerted to the dangers of defective products. When lawsuits are settled before trial, which they often are, sealed evidence is never exposed to the public. When protective orders are issued, any documents shared in the discovery process that have been deemed “confidential” cannot be shared with non-litigants. This means parties involved in the case cannot share evidence of dangerous products to lawyers representing other clients, to regulators, or to the public.
As part of the Reuters investigation millions of civil suits filed in federal court between 2006 and 2016 were analyzed. A mixture of Artificial Intelligence computer searches and good old-fashioned document review by a team of journalists uncovered troubling data. The analysis revealed that in 65% of products liability actions, some court filings and documents were sealed. Then, a team of journalists determined the nature of the sealed material by reading unredacted passages and other documents describing the sealed content. It was found 48% of the cases reviewed contained sealed public health and safety evidence. In 85% of these cases, judges offered no on the record reasoning for sealing the records.
The initial investigative series was broken down into four parts:
1. How sealed documents and evidence in litigation against Purdue, the manufacturer of Oxycontin, kept the public in the dark for years regarding the risks of the potent painkiller and its contribution to the opioid epidemic.
2. How confidential documents and evidence in a case against Merck, the manufacturer of a hair loss drug, accuse the company of exaggerating the drug’s safety record.
3. The competing obligations Plaintiff’s lawyers face—go along with Court ordered secrecy in order serve their duty to their clients which includes minimizing delays in receiving necessary discovery and resolving the case, versus fighting for the documents to be public.
4. How the civil defense bar representing big companies persuaded Congress, other rule-makers, and many of members the federal judiciary to allow the transformation of the federal courts into a much more closed system. This “secrecy allowed drug makers to market painkillers as safe while the body count from the opioid-related epidemic mounted; auto makers to sell cars with lethally weak roofs that killed people in rollovers though tests had years earlier revealed the risk; gun maker Remington to knowingly sell rifles with bum triggers that killed scores of people.”
Here at the Poppe Law Firm, we take our responsibility to hold companies accountable for making and selling harmful products seriously. We fight for our clients and the transparency needed to ensure a safer marketplace.
If you would like to the Reuters investigative series, it can be found online at https://www.reuters.com/investigates/section/usa-courts-secrecy/