This is the third in a series of articles taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen. In the next two installments in this series, we will take a look first at the General Motors "ignition defect" MDL. Our special focus will be the secrecy involved in these huge MDLs, secrecy that is built into such lawsuits as an integral part of them. To a great extent secrecy is a major reason such lawsuits exist in the first place.
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There is a stipulated protective order, an umbrella secrecy order, in the GM ignition defect MDL. To be sure, it does not bear either of those names in the Court file. But it has all the marks of an agreed umbrella secrecy order.
One of the first things that GM did in the new MDL was request confidentiality. Three months after the MDL case was opened and a judge was assigned to it, GM's lawyers and the lawyers representing people suing GM agreed that the evidence against GM in that litigation should be kept confidential.
The federal judge overseeing the GM MDL wrote that Lead Counsel for the people suing GM "consented" to the confidentiality order three months after the first pleading or exhibit was entered on the docket.
The order in GM's ignition defect MDL began with a recitation in favor of the presumption of public access to court proceedings. The court in that case acknowledged that it alone has the duty to authorize information in a court file to be sealed from public view. Then the order changed direction in some old ways, often with new additions.
Lawyers determine "Confidential Information" in the first place. Lead Counsel in Multi-District Litigation cases are clothed with the necessary authority to make decisions that bind the other lawyers and the parties. So it was in the GM ignition defect MDL. So it is with respect to all of the catastrophe claims in any MDL.
The blanket secrecy order in the GM MDL ruled, by agreement of Lead Counsel in the case, that the lawyers in the case would determine in the first place whether particular materials fall within the order's protection. Once again, "Confidential Information" is expansively defined far beyond what the law has usually authorized.
Due to GM's announced intent to produce "millions of pages of documents" in bulk, the judge ordered among other things that evidence discovered by the parties shall be kept secret as "Confidential Information" or as "Highly Confidential Information." In a departure from the standard umbrella secrecy orders discussed in previous articles in this series, and in a departure from the model Sample Confidentiality Order written by judges for lawyers in the Manual for Complex Litigation, Fourth edition, confidential information in the GM order broadly included "sensitive information." Parenthetically, this agreement to conceal "sensitive information" would find an echo two years later in a nondisclosure agreement required by at least one Member of Congress from interns.[1]
Returning to procedures used in standard umbrella secrecy orders, including those we have seen in previous sections, the GM secrecy order provided that the lawyers would use these markings for each document for which they had a "reasonable belief" that the documents were "Confidential" or "Highly Confidential." Once again, this is similar to the "Confidential" and "Highly Confidential" provisions in umbrella secrecy orders we have seen in earlier sections in this Chapter leading up to this section.
Parenthetically, lawyers often argue for blanket secrecy orders concealing everything in advance because it is too time-consuming and expensive to argue that individual documents should be kept secret.[2] However, apparently they have the time to mark every document "Confidential" and that expense, in their eyes, is justifiable.
"Return and destroy provision." With a return and destroy provision in a blanket secrecy order, any party receiving discovery would either return it to the disclosing party, or simply destroy the evidence. This is an obvious reaction to the admonition in 2004 by the Federal Judicial Center in the Manual for Complex Litigation, Fourth, that under the provisions used at that time and earlier, "[r]estrictions on use in other litigation may not provide complete protection."[3]
The GM order had a return and destroy provision, but the lawyers who wrote it did more than just copy from one of the orders we have seen earlier in past sections of this Chapter. For the catastrophe claims in the GM case, the Consent Order further provided that any party terminating its involvement in the multi-district case -- and settlement is certainly one way for a party to "terminate" its involvement -- would be required either to destroy Confidential Information or Highly Confidential Information, or return it to the party from which it came. And more.
The GM order added something new. Any "person or entity having custody or control of recordings, notes, memoranda, summaries or other written materials, and all copies thereof, related to or containing discovery materials" of this kind, the GM order said, would be required to provide the producing party with an affidavit that they did their best to destroy the Information or return it to the producing party. The new addition in the GM order was that the authors of the evidence not only wanted their information back but they wanted someone else's as well. The order required not only the evidence in question to be returned or destroyed at the conclusion of the case, but also all notes anyone took about the evidence after they received it as well.
"Good cause" kept alive. The GM agreed secrecy order provided that the party objecting to concealment could file a motion with the Court "for an order withdrawing the designation as to the specific designation on which the Parties could not agree." If the objecting party filed a motion to disclose a document or part of a document, then the party that marked it Confidential or Highly Confidential "shall have the burden of proving that 'good cause' exists for the designation at issue and that the material is entitled to protection," but not under the law or the Rules. The good-cause-burden would be to prove entitlement to concealment "as Confidential or Highly Confidential Information under applicable law," meaning that the parties' agreement had already expanded the law's capacity to conceal to previously unauthorized "other confidential, non-public information," including any person's notes about the information, whether made by a lawyer, a paralegal, a party, or anyone else.
The GM Agreed Secrecy Order's New and Revised "Confidential" and "Highly Confidential" provisions. Then the Consent Order changed direction again. If the lawyers were mistaken, no problem. Under their Consent Order in this GM MDL, even if they did not designate information as "Confidential" or "Highly Confidential," they could still designate anything "Confidential" or "Highly Confidential" later on at any time, and they could also challenge one another's "Confidential" and "Highly Confidential" designations at any time.
The "disappearing ink provision." Further, if the lawyers were mistaken in blacking out information or if the Court ruled that those materials should not have been blacked out and redacted, in that event this Consent Order added a very unusual blessing to the parties and their lawyers. If the evidence should not have been redacted, but was redacted and even though a judge ruled that it should not have been blacked out and ordered that it be disclosed instead, then the disclosed information shall still "bear the legend 'Highly Confidential' and shall continue to receive the protections and treatment" of Highly Confidential documents. In other words, even if a document which the lawyers marked "Highly Confidential" was disclosed because a judge ordered it disclosed, this language appears to require that the marked document would still be "Highly Confidential" anyway.
It might be helpful to think of this as the "disappearing ink" protection. Even after the information is disclosed, it will disappear.
This is not a matter of inadvertent production of privileged documents. It is routine for confidentiality orders to provide that inadvertent or unintentional disclosure of confidential documents or information, or disclosure of them to a judge in chambers for her review, shall not generally be deemed a waiver of any claims of confidentiality. The model Confidentiality Order proposed in the Manual for Complex Litigation, Fourth contains such a provision, for example.[4] Rules of Civil Procedure generally allow for the unintentionally disclosed information to be sequestered until a judge allows it to be disclosed once a party makes the claim of privilege and notifies the receiving party that the information was unintentionally disclosed.[5] That is not the situation addressed by the GM ignition defect MDL secrecy order "disappearing ink" provision, however.
I am confident in the belief that I have not seen all of the stipulated umbrella protective orders that lawyers have written and judges have ever signed, but I have seen many. I have never seen any part of an agreement or an order to compare to the disappearing ink provision in the GM MDL litigation.
Except in the VW MDL litigation. I will return to this subject later.
NEXT: CONCEALMENT EVEN AFTER DISCLOSURE IN THE GM "IGNITION DEFECT" MDL.
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[1] The model Sample Confidentiality Order written by judges for lawyers in the Manual for Complex Litigation, Fourth edition: § 40.27, "Confidentiality Order," ¶ (c), at page 752, in Manual for Complex Litigation, Fourth (2004).
The nondisclosure agreement for interns used in at least one Congressional office in the Spring of 2018: Rachel Wolfe, Exclusive: Congress Requires Many Unpaid Interns to Sign Nondisclosure Agreements, Vox, posted on March 5, 2018).
[2] The matters that should be specifically set forth in "[a]pplications for umbrella orders, usually presented to the court by stipulation of the parties," are set out by the Federal Judicial Center in Section 11.432, "Limited Disclosure/Protective Orders," at pp. 65-66, in the Manual for Complex Litigation, Fourth.
[3] § 11.432, "Limited Disclosure/Protective Orders," p. 65 n.138 in Manual for Complex Litigation, Fourth.
[4] § 40.27, "Confidentiality Order," ¶ (b), at page 752, in Manual for Complex Litigation, Fourth (2004).
[5] See, e.g., Fed. R. Civ. P. 26(b)(5)(B); Fla. R. Civ. P. 1.285.
NEXT: CONCEALMENT EVEN AFTER DISCLOSURE IN THE GM "IGNITION DEFECT" MDL.
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