“I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.” – Representative John Dingell

After decades of inability to stem the tide of the contract-to-fiduciary movement in law, major corporations have redirected their energy from the substance to the procedure of law. Redress in civil litigation has long ceased to be a function of merit. Justice in our legal system is largely bought and sold. Notice pleading and liberal discovery have borne the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments.

Armies are expensive and the contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. The few who manage to procure an army are oftentimes unable to share the information they have obtained with others. Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document.

In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, the Court stated, “abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the . . . the government's substantial interest in protecting the integrity of the discovery process.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process.

The weak “good cause” standard for protective orders essentially eviscerates all notions of open access. Rule 26(c)(1) of the FRCP states that “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” What constitutes “annoyance” or “undue burden” is amorphous. Even the definition of traditionally private information like trade secrets has become bloated, including revenue information and profits (such information is publicly filed with the SEC). Judge Weinstein’s injunction related to the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.”

In reality, public access to information and the resolution of cases on the merits are not mutually exclusive. Protection orders and sealing mean that subsequent litigants retain lawyers who need time to learn the details of the case and must begin the process of discovery and scavenging through the data dump anew. If gag orders are still in effect, plaintiffs are limited in potential witnesses as well. For repeat defendants, each subsequent discovery process can be cheaper because the defendant uses the same lawyer who does not need to be brought up to speed, knows where to find all the documents it needs to send, and if utilizing electronic discovery, may have them on hand quickly and avoid almost all production costs. The documents the plaintiff produces are generally not nearly as voluminous as the defendant’s and the plaintiff’s facts do not differ substantially from those of previous plaintiffs. Secrecy drives up the costs for plaintiffs.

Many plaintiffs agree to secrecy because they are paid a premium. Neither the plaintiff nor the defendant has the interests of future plaintiffs in mind. While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public.

Proponents of public access to discovery documents often cite the need for government oversight, public health and safety, and media and research access. However, the elephant in the room remains unnamed: few want to say that the rules of discovery discriminate against the poor. That’s a redish banner few care to carry

-- KateVershov - 05 Apr 2008