This is the last of our continuing series of articles taking a look at the presumption of public access to Court files. In recent articles we have been looking at the examples of secrecy on display, as it were, in recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen. In this final article, we will bring the series to a close with our look at the Volkswagen "pollution defeat device" MDL. Our special focus will be trained on the secrecy involved in this huge lawsuit, secrecy that is built into multi-district litigation and similar huge lawsuits. To a great extent secrecy is a major reason such lawsuits exist in the first place.
"Use Restriction": In other cases, standard blanket secrecy orders purport to prohibit disclosure to others, who may be identified, by category but never by name, or maybe not at all. The use restriction in the VW order was written to go one step further. It is a "Restriction on Disclosure in Actions Outside U.S." and in particular to "legal counsel[.]"[1]
By way of contrast, in many other cases, a stipulated protective order will specifically say who will never be given concealed material. When material is designated as not subject to public disclosure in a given case, the agreed order may be written so as to single out in particular lawyers representing other plaintiffs in other cases against the same or similar defendants.
Here, in the stipulated protective order in the VW MDL, we get to see the flip side of that coin. In the VW MDL order, the approach was taken to list every kind of person who can see the otherwise publicly undisclosed information. That list in the stipulated secrecy order in the VW MDL simply does not include lawyers involved in the representation of other clients in other cases. Parenthetically, it also does not include requests for public information under the Freedom of Information Act, or "FOIA."[2]
These more or less unique provisions may reflect the international marketing of Volkswagens. Describing the set of people who can see the concealed information is infinitely simpler than trying to describe all the different proceedings and the people involved in them all over the world who cannot see the information. Denying access under the Freedom of Information Act, if valid, will prevent or at least slow down the availability of that information for other proceedings of any type across the planet.
Sealing the materials a judge uses to make a ruling. The VW order clearly provides that any "Protected Material" under the agreed order that "is used in any court proceeding ... shall not lose its protected status through such use."[3] Once again, as we have already seen in earlier sections, in particular in section 2:20 regarding insurance companies, many courts treat materials used by a judge to make her ruling as presumptively open to the public by the very fact that the judge based her ruling on it, so that the public should see it too.
The Crucial Feature of agreed Umbrella Secrecy Orders: Agreed blanket secrecy orders prevent disclosure of the evidence without the requirement that a judge determines whether there is good cause for the nondisclosure. The VW order shares this feature with standard Umbrella Orders, unlike it must be said, the GM order which does require proof of good cause for the "Confidential" or "Highly Confidential" marking.[4]
The VW order is the same as the GM order, however, with respect to what the lawyers mark as "Confidential" or "Highly Confidential." What the lawyers mark with those designations will be "Confidential" or "Highly Confidential," even after the particular case is over. The lawyers only need to do their marking "in good faith" of all the evidence they "reasonably believe to be" either Confidential or Highly Confidential.
What the lawyers may choose to mark "Confidential" in the VW MDL seems anchored on things "that qualify for protection under Federal Rule of Civil Procedure 26(c)." So far, so good, but the permissions to the lawyers and parties to designate things "Confidential" and so withhold them from the public do not end there.
The VW stipulated secrecy order changes the Rules by adding that nothing in this agreed order precludes any party from "seeking additional protections not currently contemplated by this Order to be applied to any particular document or category of documents," which of course includes Confidential Information.[5]
Exactly what are the "additional protections"? The order does not say, and it does not offer a clue. What the "additional protections" to keep evidence Confidential may be, remains to be determined by the lawyers and their clients in that case.
Both the GM stipulated secrecy order in New York and the VW agreed secrecy order in California provide that if the lawyers were wrong in concealing evidence from the public as Confidential or Highly Confidential, that is no problem once again -- even if a Court declares that the evidence in question should be opened to the public, it will still be protected so long as the lawyers marked the evidence with the words, "Confidential" or "Highly Confidential."[6]
An old standby: "Non-public information." Similar words and phrases are used throughout the secrecy documents in many cases and in a lot of situations. The VW MDL secrecy order refers, for example, to concealing information simply because someone claims that it is "non-public information"[7] as in the Wells Fargo settlements of cross-selling accusations that we encountered in section 2:21. These agreed secrecy orders are not alone in using the term. That same term, "non-public information," is also used and is also not defined, in the Nondisclosure Agreements apparently introduced to employees in the White House since on or about January 20, 2017.[8]
Summary of the effects of stipulated umbrella protective orders on litigation of catastrophe claims and of insurance coverage claims for natural and man-made disasters. State court actions may provide more transparent lawsuits than federal courts. The United States Constitution provides the presumption followed by many federal courts to allow the public access to court files, yet federal procedures not only authorize but encourage concealed evidence and secret settlements.
Some of the procedures followed in federal courts that encourage concealed evidence and secret settlements include judicial approval of secret class action settlements, and multi-district litigations or MDLs. Judicial certification of classes for the purpose of settlement, and MDLs by their very nature, are designed and constructed to encourage settlements. Both class action settlements and MDLs are by their nature large cases which put tremendous pressures on individual plaintiffs by a few very large, usually corporate defendants.
We have discussed numerous examples in the immediately preceding sections of this Chapter of how the judicial system, and particularly the federal judicial system, encourages and approves concealed evidence and secret settlements, including the GM ignition defect MDL and the VW defeat-device MDL.
The intention behind the recent previous sections of this Chapter has been to illustrate the difference between concealing evidence and making the evidence publicly available for the public to see. In order to achieve this result uniformly throughout federal courts and state courts alike, it is now clear that changes are necessary. First and foremost, the behavior of judges needs changing. No new rules are needed. What is needed instead is to enforce the rules that exist, particularly the requirement that protective orders and sealing orders depend on a showing of good cause from the party or parties requesting the secrecy.
Last in a series. Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.
[1] This is § 7.5, at page 11 in Pretrial Order No. 12: Stipulated Protective Order, Doc. No. 1255, filed on February 25, 2016 in In re: Volkswagen "Clean Diesel" case.
[2] The distribution list' simply does not include lawyers involved in the representation of other clients in other cases: §§ 7.2 and 7.3, on pp. 9-11, in id., titled, respectively, "Restrictions on Use of Confidential Information" and "Restrictions on Use of Highly Confidential Information."
The concealed information cannot be obtained with FOIA requests: § 12.4, p. 16, in id.
[3] § 13.4.2, at p. 18, in id.
[4]See GM Order No. 10, filed 09.10.14, ¶ 4, at p. 6.
[5] VW Pretrial Order No. 12: Stipulated Protective Order, § 2.9, filed on February 25, 2016, pp. 3-4.
[6] Designating evidence as "Confidential" or "Highly Confidential," which the lawyer "reasonably believes," in "good faith": It is enough to quote one of the two secrecy orders, because in substance they are identical. To quote the VW secrecy order, VW Pretrial Order No. 12: Stipulated Protective Order, §§ 2.3, 2.6, 2.9, 2.18, and ¶ 5, at pp. 3-4, and 5-8, filed on February 25, 2016:
If counsel for the Producing Party agrees or if the Court orders that Discovery Material initially redacted shall not be subject to redaction or shall receive alternative treatment, and the Discovery Material is subsequently produced in unredacted form, then that unredacted Discovery Material shall continue to receive the protections and treatment afforded to documents bearing the confidentiality designation assigned to it by the Producing Party.
The quotation is from id., § 11.1, p. 14, in a paragraph titled, "11. REDACTIONS ALLOWED." (Underlining in original.) The corresponding GM secrecy order's provision is in ¶ 3(d) at page 5, GM Order No. 10, filed 09.10.14. Although the wording is slightly different when the two provisions are compared side-by-side, the substance is virtually identical. Clearly whoever wrote the VW order filed in February 2016 in a Court in California read the GM order that was filed in a Court in New York a year-and-a-half earlier in September 2014, and changed the words in order "to protect the innocent," you might say..
[7] VW Pretrial Order No. 12: Stipulated Protective Order, § 12.7, at p. 13, filed on February 25, 2016.
[8] Cf. Ruth Marcus, "Trump Had Senior Staff Sign Nondisclosure Agreements. They're Supposed to Last Beyond His Presidency" (Washington Post Online, posted March 18, 2018) (quoting from a reported draft nondisclosure agreement implemented by the current Administration at the White House, as to "'confidential' information, defined as 'all nonpublic information ....'" (emphasis added).) The author was clear that she was in possession of only a draft nondisclosure agreement, and so she was not quoting any other version of the document, if any.
Last in a series. Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.
