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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 Vista. (Microsoft’s own Vice President in charge of

Windows product management complained that incompatibilities with Vista turned his laptop into “a $2,100 e-mail


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 Vista marketing strategy and cataloging the various difficulties

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,

Graco childrens’ products,

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.