It’s been almost two months since my last post. Although not writing here, I have been busy writing – including a number of briefs in an ongoing products’ liability case and a separate case involving a public contract in Alabama. Both cases share a common (and troubling) issue. Both involve serious public issues shrouded in secrecy by confidentiality orders. One case involves a medical device marketed and implanted in women despite huge dangers known by the manufacturer. The other involves a company with a public contract affecting health benefits for thousands of beneficiaries across Alabama.
In the medical device case, patients and their doctors should have access to important information concerning research, testing, and FDA approval. Yet, they do not. Many of these documents are shielded from disclosure by court order. How many women could have been saved from the chronic pain and disabling injuries of this product? If only important information had been disclosed.
In the public contract case, Alabama’s citizens should have access to information concerning how a company spends their money. Yet, they do not. Why should any company ever be allowed to spend public money in secret? Yet, much of this information is shielded from disclosure by court order.
The New York Times calls it – Secrecy That Kills. A proposed law would change this. It’s called the “Sunshine in Litigation Act.” If passed, this law would prevent courts from restricting disclosure of information important to public health or safety. It would also prevent courts from enforcing some secrecy provisions in settlement agreements. The proposal is an important step for justice. This law could prevent many needless injuries and deaths. Yet, it is not enough. The proposal includes issues of public health and safety. It should also include cases involving the use of public money.
Secrecy in our judicial process harms all of us. Broad confidentiality orders allow defendants to continue their wrongful conduct and hurt more people. It’s time for a real discussion on the role of our courts in promoting the wrongful conduct of defendants through secrecy. A change is needed.