Treading on Discovered Ground

New Jersey Supreme Court decision highlights access to discovery materials

From the Summer 2004 issue of The News Media & The Law, page 22.

By James McLaughlin

It has long been settled law that court records are available to the public. With few exceptions, if you file a document with a court in the United States, you should assume that anyone can read it.

But that presumption has not usually applied to discovery materials — documents exchanged in the court-sanctioned process by which litigants obtain information from their adversaries prior to trial. If discovery materials are filed with the court in support of a motion, they generally become publicly available. But if they are never filed with the court, as is often the case with discovery documents, judges have traditionally considered them private property, off-limits to the public and the press.

In a decision issued July 28, the New Jersey Supreme Court re-examined — and ultimately reaffirmed — that long-standing rule. “The universal understanding in the legal community is that unfiled documents in discovery are not subject to public access,” the court said.

But the justices also made clear that the issue remains open for debate, inviting the state’s Civil Practice Committee to consider whether the rule should be changed. The Civil Practice Committee is a standing committee of judges, lawyers and academics that evaluates proposed changes to the rules of civil procedure and makes recommendations to the Supreme Court.

The case, Frankl v. Goodyear, illustrates the potentially high stakes involved in access to discovery materials. The contested documents contain information about the safety record of Goodyear’s Load Range E tire, which has been responsible for at least 18 deaths and 158 injuries, according to a March 2002 report of the National Highway Traffic Safety Administration.

In 1997, three U.S. Air Force personnel were killed, and three others injured, when their GMC Suburban flipped over in Saudi Arabia. One of the injured victims and the estates of two of the deceased occupants sued Goodyear, alleging that the accident was caused by a defective tire design. It was one of hundreds of cases in which Goodyear has been sued over the Load Range E.

Goodyear settled the underlying case in 2000, but controversy continued to persist over the fate of 31 internal records Goodyear provided to the plaintiffs during discovery. The documents contain details on the design, testing and safety history of the tires.

In November 2000, the consumer advocacy organization Consumers for Auto Reliability and Safety (CARS) intervened in the case, arguing that the documents should be released to the public because they contain potentially life-saving information.

Trenton Superior Court Judge Jack Sabatino agreed, at least with respect to some of the documents. He issued a ruling in July 2002 that called for 14 of the 31 documents to be released either in part or in full.

“There is no good reason to bottle up the Goodyear information,” Sabatino ruled. “Directly or indirectly, that information may help save lives and limbs.”

Though he acknowledged that the public does not generally receive access to unfiled discovery documents, Sabatino said the July 2000 protective order drafted by the parties was too broad. He cited New Jersey Rule 4:10-3, which says that protective orders should be entered only for “good cause.”

Unless modified, the protective order “would afford Goodyear protection beyond what it deserves,” Sabatino determined.

The documents remained confidential pending Goodyear’s appeal, however. More than a year later, in September 2003, a New Jersey intermediate appeals court issued its decision: every page of the 31 documents should remain confidential.

Further Debate Needed

In what was perhaps the last chance for members of the public to gain access to the Goodyear documents, the New Jersey Supreme Court sided with the court of appeals, ruling that the public has no right of access to discovery materials. The court found that Rule 4:10-3, which says protective orders must be based upon good cause, is merely “a procedural device by which documents, otherwise accessible, can be protected.”

CARS’s attorney, Rebecca Epstein of Trial Lawyers for Public Justice, disputes that characterization.

“Parties must prove ‘good cause’ [under Rule 4:10-3] to justify secrecy over discovery,” Epstein said. “And the public has the right to hold parties to that standard since it is injured when information is wrongfully withheld.”

CARS, she said, was “simply asking the justices to enforce already existing law.”

Though the justices did not side with Epstein’s position, they did leave open the possibility of further dialogue on the issue. The court’s opinion instructed the Civil Practice Committee “to address whether, going forward, we should maintain the position that unfiled discovery is insulated from public access or whether changes are warranted in that approach.”

A revised approach to the confidentiality of discovery documents would have consequences that extend far beyond the Goodyear cases. As public health and safety issues are increasingly resolved through class-action litigation, discovery rules have become a major battleground in the fight for public access to information.

Conversely, if litigants remain free to write protective orders without much thought of judicial oversight, “the public will be chilled from mounting challenges to unnecessary secrecy,” Epstein said.

A Muddled Area of Law

Despite the weighty interests at stake, federal and state courts generally lack clear rules on when the public has a right to inspect discovery documents.

The Federal Rules of Civil Procedure, which govern discovery in all federal district courts, specify that judges should grant protective orders only “for good cause shown.” But federal judges are generally reluctant to second-guess the confidentiality designations of litigants.

The U.S. Court of Appeals in Philadelphia (3rd Cir.), for instance, has declined to recognize a right of public access to unfiled discovery materials. In a 1986 case, the court reasoned that discovery “stands on a different footing than does a motion filed by a party seeking action by the court.”

Later that year, a federal appeals court in Boston (1st Cir.) went a step further, ruling that discovery documents filed with a court are not even necessarily public. If the document is attached to a discovery motion, rather than a motion concerning the merits of the case, the presumption of access does not apply, the court held. The public has a right only to “materials on which a court relies in determining the litigants’ substantive rights.”

At the state level, only a few states have enacted laws that directly address the public’s right of access to discovery materials. Florida’s Sunshine in Litigation Act, passed in 1991, prohibits judges from entering “protective orders that have the effect of concealing a public hazard,” which the statute defines as any product, person, device or condition that “has caused and is likely to cause injury.” Florida courts have applied the law to require disclosure of discovery materials in asbestos litigati on.

A similar law in Louisiana nullifies any agreement that “has the purpose or effect of concealing a public hazard.” The Louisiana statute specifically authorizes “any representative of the news media” to contest such an agreement.

And Texas Rule of Civil Procedure 76a gives the public a qualified right of access to unfiled discovery materials that “have a probable adverse effect upon general public health or safety.”

In practice, however, protective orders often go unchallenged. Busy judges tend to rubber-stamp the orders, which are usually drafted by the parties and submitted to the court without dispute. And the public and the news media have, at best, a limited capacity to police the abuse of protective orders in all but the most high-profile cases.

“For various reasons, including judges’ overloaded dockets and their eagerness to facilitate settlements, courts often sign off on these orders,” Epstein said.

Despite those realities, Epstein believes judges have an obligation to curb the trend toward secrecy. “In cases where good cause is never shown,” she said, “the protective orders violate the law, plain and simple.”