Zipped up Documents Zapping the Public

Not a week goes by when I don't hear of or am involved with a defendant in a major lawsuit who asks that the pending settlement agreement be kept secret. Often this is despite mounds of unsealed documents filtering through open court.

The kicker is that it is precisely these same defendant corporations who months later in a similar lawsuit involving similar injuries will complain that the dollar amounts requested in settlement are unprecedentedly high. Of course, the plaintiff's attorney's hands are tied in comparing that figure to the one reached just a short time ago under a protective order.

It makes one wonder if a conspiracy of silence is going on here. And it should come as no surprise that plaintiffs' attorneys and consumer groups endorse several states' recent efforts to enact "sunshine" laws.

These measures are designed to prevent parties in civil litigation from confidentially settling their disputes in certain kinds of cases or from shielding certain documents from public view, as well as offering some guidance to the courts and predictability to litigants.

In Illinois State Rep. Louis Lang (D-Skokie) introduced the Sunshine in Litigation Act earlier this year. H.B. 538 prohibits courts from entering any order or voiding agreements that have the effect of concealing a public hazard or information pertaining to a hazard. Although it was dormant in the Rules Committee in early May, its sponsor says he is looking for another avenue for passage before the end of this session.

It's difficult to imagine any legislator who would vote against such a public-minded piece of legislation, but many have rejected similar measures in past years, apparently at the behest of manufacturing and corporate lobbyists who represent those standing to gain from nondisclosure. Imagine a negligent company's ability to settle a case without disclosing to the public or other potential plaintiffs or plaintiffs' attorneys the amount, not to mention the adverse publicity that may accompany a particularly large figure.

Illinois is among a handful of states that support a presumption in favor of public access.

In re Marriage of Johnson, 232 Ill.App.3d 1068, 598 N.E.2d 406 (4th Dist. 1992), the appellate court reversed the trial court's impounding certain documents. Frank Johnson had filed a personal injury action against a construction company. His wife's loss of consortium claim was confidentially settled. The terms of the settlement were read to the court, although the actual settlement document did not become part of the court record. A local newspaper requested access to all impounded materials, which included this settlement document.

To overcome a presumption of access, the Johnson court held that the moving party must demonstrate a compelling governmental interest and any restrictions on access must be narrowly tailored to meet these governmental interests. Therefore, the transcript where the terms of the settlement agreement were recited was subject to public access, but the actual settlement document was restricted.

The court reiterated a general common law right of access to public records and documents, including judicial records. This common law right is codified in the Clerks of the Courts Act, 705 ILCS 105/16(6) (1996), which generally grants free access to public records. In federal court Federal Rule of Civil Procedure 5(d) requires that discovery material be filed with the court unless the court orders otherwise.

The right of access is grounded primarily in the need for scrutiny and accountability of the legal process, for it is through such openness that the public will gain an understanding, confidence and respect for the system.

Every time a judge unreasonably allows the sealing of a document, the integrity of the entire system falters for it is access to public proceedings on which a strong and independent judiciary's self-image is based.

When any defendant attempts to seal part of a judicial record or settlement, that party must be made to overcome a heavy burden demonstrating why the material is the sort of information the courts should protect and that disclosure would result in a clearly defined and serious injury to the party seeking confidentiality.

Courts then go through a balancing process to determine if public access to judicial records outweighs privacy concerns. In a system in which some 90 percent of all cases are settled without trial, a course can be paved for a largely secretive system; and secrecy promotes the questioning of whether justice is being equitably administered.

The nemesis of this ad hoc balancing system also belies the spirit of the right of access. Perhaps the better rule would recognize a general right of access to all documents filed with the court, limited by exceptions pertaining to subject matter.

National security, trade secrets, threats of potential harm to others and potentially defamatory material are the types of information that give courts reason to pause. But many tort cases - mass disasters, chronically negligent doctors or product liability cases - deal with the public health, safety and right to know. Other civil litigation cases deal with public agencies or officials. In these types of cases, once the parties choose to bring their dispute into the public forum of a court, privacy interests should diminish.

Whatever disclosure's value, it should not obscure the strong public interest in and policy objectives furthered by promoting settlement. But litigants should not be entitled to seal court records simply because they reached an agreement. They can file a voluntary stipulation of dismissal if confidentiality is a priority.

It used to be the rule that when one party requested confidentiality, the courts generally agreed. But the stakes have become much higher and the motives appear to be less than honorable. More and more, courts are insisting on defendants demonstrating their heavy burden to justify confidentiality, even in the case of settlement, to protect injured consumers and to ensure justice in today's case as well as in tomorrow's.

I only hope plaintiffs' attorneys can insist on the same and point out to their clients the deleterious effect this conspiracy of silence creates for the next injured victim. If this societal duty is not taken seriously, then attorneys should not be surprised when their demands and expectations are labeled exorbitant because the precedent has been kept out of the public eye.