Unsealing Safety
It would have been easy to miss a recent New York Times article
about a class-action lawsuit brought by disgruntled consumers against Microsoft
for misleadingly marketing Microsoft Vista as being ready for use on certain
computers for which it was clearly not ready. This case became more
interesting when discovery led Microsoft to disclose a series e-mails to the
company from some customers, who also happened to be Microsoft executives,
documenting their own troubles with
Windows product management complained that incompatibilities with
machine[.]”)
Civil litigation serves the public good in a variety of ways: it helps to create
accountability to the public in business, and deters potential bad
behavior. This case is also a prime example of how lawsuits increase
transparency. In the absence of formal legislative hearings, litigation
gives the public a unique opportunity to peek into the inner workings of
corporations that make obfuscation a routine business practice with the help of
restrictive secrecy policies and high-powered PR masters. Without a class
action suit against Microsoft, the public likely never would have learned of
the 200 or so e-mail messages and internal reports documenting the
that Microsoft’s own executives had with the program.
Excessive secrecy in civil litigation has resulted in numerous sealed
settlements of cases involving such widely-used products as Firestone tires,
the Shiley heart valve,
the Dalkon Shield contraceptive device
and the anti-depressant Prozac.
Sealing these cases and hiding corporate wrongdoing is a threat to the public. In the Firestone case, 59 lawsuits were filed
against Firestone between 1991 and 2000. There were total of at least 35 documented deaths and 130 documented
injuries involving these tires. How can consumers,
regulators and policy makers accurately observe and assess the numerous hazards
facing the public without such essential information?
Fortunately for opponents of secrecy, Congress has a partial fix for the
court secrecy problem. A bill
proposed by Senator Herb Kohl (D-WI) and co-sponsored by Sens. Patrick Leahy
(D-VT) and Lindsay Graham (R-SC) would make it harder to bury important public
health and safety information behind court orders. This commonsense bill,
the Sunshine in Litigation Act, S. 2449, would prevent federal courts from
sealing court records, discovery materials and settlement agreements when the
public interest in information concerning the public health and safety
outweighs the parties’ need for secrecy. The bill is not a complete fix
to all unnecessary court secrecy. It
applies only to court-ordered secrecy and in many cases the parties make
agreements without the court’s involvement. Also, the bill focuses specifically on public health rather than the
more general public interest. Still,
Senator Kohl’s bill is a great first step — as the Times has said,
"modest but potentially life-saving[.]"
Last week, the Senate Judiciary Committee reported the Sunshine in Litigation
Act favorably by a 12-6 vote. While this is a positive step, there are
many more legislative hurdles that this bill must clear. We hope that
this proposed bipartisan legislation becomes law, and we agree with the Times:
The Senate should move quickly to approve this
much-needed bill. And the House should move quickly to introduce the same
legislation. When the courts have information about serious threats to health
and safety, the public has a clear right and need to know.
The public also deserves to know information that does not implicate
health or safety, but which is still in the public interest – like the information
that came to light in the Microsoft Vista case. We’ll keep working to end
all unjustified court secrecy. But in
the meantime, we should all be able to support the Sunshine in Litigation Act,
which would provide access to information that could save lives.