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Public hurt by 'confidential' court settlements By KIM GREENE
KPA A recent article in the newsletter of the Libel Defense Resource Center (LDRC), reprinted from Business Week, highlighted a problem that is all too common in Kentucky. Time and again we receive Hotline calls concerning case settlements, or other court documents, which have been labeled "confidential" and sealed by the court. I'd wager each and every one of you has encountered this road block. Other than offending our instinct to want to see what we've been told we can't, are there ramifications to this apparently growing trend to seal court records? Mike France, the author of the Business Week article, argues emphatically that there are. And we agree. France uses the example of the Bridgestone/Firestone tires which have been the subject of so much media attention within the last few months. Those tires, when placed on certain Ford vehicles, appear to have been responsible for a number of blow-out related injuries. In the last several months, there has been much finger pointing, rationalizing and justifying going on. But France argues that it's not just Bridgestone/Firestone, Ford, and the National Highway Traffic Safety Administration (NHTSA) who share blame for the tire debacle. He says that the American legal system also shares some responsibility for this public safety disaster. The reason? Long before NHTSA announced last summer that it was investigating the tires, there were more than 60 personal injury lawsuits arising from blow-out related injuries, according to an association of plaintiffs' lawyers who share information and documents among themselves. The earliest of these cases was initiated in 1991. Why didn't these 60 cases make a bigger splash in the news? Why didn't these 60 cases alert the regulators and the public to the dangers of those tires well before the summer of 2000? In many of those cases Bridgestone/Firestone and Ford won protective orders that kept much of the information generated by the cases from becoming public. In addition, plaintiffs and their lawyers signed confidentiality agreements which prohibited them from discussing details of the lawsuits, including terms of settlement. Why is this practice so common? Many corporate defendants in product liability cases seek and obtain protective orders and confidentiality agreements. That keeps information about the allegedly defective product and the terms of any settlement of the claim from the public. Perhaps the corporate defense attorneys see it as their job to protect their clients' interests in any way they can. And perhaps plaintiffs' lawyers agree to confidentiality in settlements in order to hasten and maximize the monetary victory for their clients, thus doing their best to protect their clients' concerns. But what about the judges? Court rules in every jurisdiction allow judges some discretion to seal records or grant protective orders. That discretion is not unfettered, however. There are standards which must be met to establish that withholding the information at issue from the public is a reasonable and well founded action. And, of course, there are the First Amendment interests which must be considered anytime an effort is made to close court records. As the highest courts in Kentucky have recognized, the court's business is the people's business. Surely one of the functions of the judicial system is to help right wrongs, and that function is broader than any single case. Among those 60 cases involving Bridgestone/Firestone tires, was there no judge who recognized that a serious public safety might be involved and that secrecy would only delay efforts to correct it? There certainly was no judge who acted upon that recognition. Closer to home, we see the same sort of inattention to the public's First Amendment right of access to judicial proceedings and records. For example, it was only after the Kentucky Attorney General instructed the City of Shepherdsville that its secret settlement agreement with the Reverend Abraham Lincoln Washington and Lisa Washington was improper that the City divulged the amount of money paid to the Washingtons. The Washingtons had filed a civil rights lawsuit against the City of Shepherdsville, resulting from incidents that occurred as they traveled through Shepherdsville. The Washingtons had pulled off I-65 in Shepherdsville to make a telephone call at a gas station. While Reverend Washington waited for a call back, Lisa Washington went shopping. Police received two 911 calls reporting a disturbance at the gas station. One said a woman in a van had tried to run over a man. When the Shepherdsville officers responded, Reverend Washington was sitting alone at a picnic table. Police said Washington refused to cooperate. In their lawsuit, Reverend Washington claimed he was assaulted, falsely imprisoned, defamed and prosecuted with malice and without probable cause when he was arrested at a gas station in Shepherdsville. He claimed the arrest was based largely on the fact that he is African-American. The City denied all of the allegations. Some months later, the parties agreed to settle the controversy. But the City extracted the Washingtons' promise not to talk about the settlement. Then the City refused to release the amount of money paid, claiming it had been paid by the City's insurance carrier and not directly by the City. Is it nobody's business how much money is paid on behalf of the City of Shepherdsville to settle this lawsuit concerning alleged civil rights violations by some police officers? Aside from the fact that Shepherdsville is a public agency, accountable to its citizens, there are two reasons it's important to make this settlement public. First, the public is entitled to know accusations about how public officers charged with maintaining public safety are doing their jobs. Of course, allegations in a lawsuit are just that - one side of the story. But we'll never know what really happened if we never know about the allegations to begin with. Second, regardless of whether the Shepherdsville police officers acted inappropriately in their arrest of Reverend Washington, the public is entitled to know exactly how the City of Shepherdsville handled the Washingtons' allegations. How well is the City doing its job? Sweeping information about the settlement of a civil rights suit, including the amount of money paid to the plaintiffs, under the rug undermines the manner in which our democratic society is supposed to work. There may be absolutely no threat to public safety from the Shepherdsville police. We assume and trust that is the case. But there may be some city or some county in Kentucky where police officers make a habit of violating individuals' civil rights based on some characteristic, such as their race, gender or sexual orientation. If the public is deprived of information about lawsuits challenging that governmental action, do we run the risk of allowing a full-scale public safety issue to develop? The news media have a crucial role to play to prevent this scenario from occurring. News organizations must be extremely vigilant. Ask questions when court files are sealed or court proceedings are closed. Protest when a public agency refuses to provide you information about the settlement of litigation. Two states, Texas and Florida, have tightened up their court rules about protective orders and secret settlements. Without depriving the courts of their discretion to approve such orders, the new Texas and Florida rules require judges to go on record about why those court pleadings should be kept secret. Is seeking similar changes something members of the KPA would want to advocate? If you have questions about this subject or any other covered by the Hotline, we're standing by. Jon L. Fleischaker: Kimberly K. Greene: R. Kenyon Meyer: Cheryl R. Winn: Lora S. Morris: DINSMORE & SHOHL, LLP |
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