March 2009
Attempted Restriction On Confidentiality Orders In Discovery
For at least the eighth time, the U.S. Congress killed an effort in its last session to enact a bill, S-2449, that would restrict a federal court’s use of protective orders under Fed. R. Civ. Pro. 26. See, Kenneth J. Moran, Recent Trends in Discovery Against Tire Companies, ITEC Seminar (Sept. 2008), available at www.mrcpclaw.com/2008 Articles.
As reported in the The News Tribune, “Don’t Let the Courts Hide Public Dangers,” (February 23, 2009), the state of Washington is considering similar legislation introduced by State Sen. Adam Kline – SB 5886. This would amend R.C. Wash. §§ 4.24.601, et seq., to no longer allow protective or discovery orders issued pursuant to court rules to stand at the end of litigation. Rather, the trial court would be required, in any case, to review all discovery or protective orders for assurance that such orders do not conceal the existence of a public hazard. Kline’s bill, like its federal counterpart, seems ill-advised, creating potential and unanticipated pitfalls.
The proposed Washington bill creates a “presumption against the sealing of court documents relative to public hazards as defined in this act. SB 5886, § 1. Unfortunately, the term “public hazard” is not defined beyond the minimum requirements for a product under the Restatement of Torts (Second), § 402A: The proposed bill defines a “public hazard” as “a condition of a product . . . that has caused, or can be reasonably expected to cause death or serious bodily harm or other serious harm to a person unaware of its condition.” Id., § 2(1)(d). Similarly, Section 402A, the normal foundation for any product claim, provides:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property . . .
Thus, any product liability action raises the spectre of a public hazard, and none of the proprietary documents produced by the manufacturer in such an action qualify for a protective order protecting the documents confidentiality from competitors. Moreover, the decision about the defectiveness or “condition” of the product necessarily arises at the earliest steps of the litigation – long before the jury makes its determination (which may well be at odds with the discovery judge).
Furthermore, under the Washington bill, “confidentiality provisions may be entered into or ordered . . . only if the courts finding, based on the evidence, that the confidentiality provision does not conceal the existence of a public hazard.” Id., § 2(4)(b). Notwithstanding the fact that the standard for “concealing” remains undefined, how can a busy trial court be expected to hold an evidentiary hearing well-before trial to determine whether the act applies?
Finally, Section 3 of the proposed bills, aptly states the inherent conflict in such restrictive legislation.
The legislature finds that public health and safety is promoted when the public has knowledge that enables members of the public to make informed choices about risks to their health and safety. Therefore, the legislature declares as a matter of public policy that the public has a right to information necessary to protect members of the public from harm caused by a public hazard. The legislature also recognizes that protection of trade secrets, other confidential research, development, or commercial information concerning products or business methods promotes business activity and prevents unfair competition.
In difficult economic times, the Washington bill seems to ignore its obvious effects on commerce.