Please reply to:

Woodbridge

(732) 855-6428

 

 

                                  September 13, 2001

 

Hon. Jack M. Sabatino, J.S.C.

Superior Court of New Jersey

Mercer County Civil Courts Building

175 South Broad Street, 4th Floor

P.O. Box 8068

Trenton, NJ 08650-0068

 

     Re:  Estate of Frankl v. Goodyear Tire & Rubber, et al.

          Docket No. MER-L-3052-99

 

Dear Judge Sabatino:

 

In accordance with R. 2:6-2(b), please accept this letter brief in lieu of a more formal brief.  CARS submits this Brief in response to the Court’s invitation during the status conference on August 22, 2001, to file supplemental briefs in this case.  In accordance with the Court’s instructions, this Brief will address only developments that have arisen since briefing concluded last year.

1.              The Public Interest in this Case Continues to Grow. 

CARS based its Motion to Intervene and Modify or Vacate the Protective Order in part on the significant public interest in this case.  That interest has increased since CARS filed its motion on November 1, 2000, as shown by fifteen new complaints submitted to the National Highway Safety Administration (“NHTSA”) regarding tire tread separation on P245/75R16 Goodyear tires.[1]  See Exhibit A, attached to Certification of Robert T. Haefele (Hereinafter, “Haefele Certif. at Exhibit __.”). 

The continued reporting of tire tread separation on these model tires supports CARS’ original contention that the public interest in this case, and its safety implications for the public, is significant, and outweighs Goodyear’s interest in secrecy.[2]  As CARS stated in its original Brief, the current public interest is relevant to Goodyear’s burden to prove good cause for the protective order at the time access is sought.  CARS’ Br. Supp. Mot. Intervene and Modify or Vacate Prot. Ord. (“CARS’ Br.”), at 12-15.

2.              The Eleventh Circuit’s Recent Opinion in Van Etten Supports CARS’ Request that Goodyear be Held to the Well-Established Good-Cause Standard.

 

In its original Brief, CARS cited to Van Etten v. Bridgestone/Firestone, 117 F. Supp. 2d 1375 (S.D. Ga. 2000).  See CARS’ Br., at 14, 21.  Recently, the Eleventh Circuit vacated and remanded that case.  Chicago Tribune Co. v. Bridgestone/Firestone, 2001 WL 984637 (11th Cir. Aug. 28, 2001).  Despite the decision to remand, however, the substance of the Eleventh Circuit’s opinion still supports CARS’ principal argument:  that is, courts must conduct a good-cause balancing test to determine whether to issue protective orders.  See id. at *5-*6 (establishing standard and finding that lower court did not determine whether request for protective order was supported by good cause under Federal Rule of Civil Procedure 26); accord CARS’ Br., at 9-15, 17-22 (arguing that Court should make findings regarding good cause under Rule 4:10-3, which is analogous to Federal Rule of Civil Procedure 26).

The Eleventh Circuit’s opinion reinforces the requirement that when lower courts conduct this mandatory good-cause test, they must make detailed findings regarding good cause.  Bridgestone/Firestone, 2001 WL 984637, at *6 (remanding case, instructing court to reexamine sealed documents to determine good cause).  CARS has requested that this Court make similar findings in the case at bar.  CARS’ Br., at 19 n.9.  If the district court concludes that the documents do not fall within one of the categories of confidential information established in Rule 26, “good cause does not support the protective order, and the documents may be unsealed.”  Bridgestone/Firestone, 2001 WL 984637, at *6.  Because Goodyear did not even attempt to make a showing of good cause, the Protective Order should be vacated or modified, and access should be granted to the disputed discovery documents. 

Finally, even when district courts conclude that documents do contain trade secrets, the Eleventh Circuit re-emphasized that the courts still must balance the interest in secrecy against the allegation that disclosure “serves the public’s legitimate interest in health and safety” and make specific findings on the issue.  See id. at *6.  These requirements are consistent with CARS’ argument that the Court should disclose the documents because they are relevant to the issue of the dangerousness of Goodyear tires.  See CARS’ Br. at 20.  In light of the public interest in this issue of safety, Goodyear cannot meet the balancing test articulated in Bridgestone/Firestone, and the Protective Order cannot stand. 

3.              The Third Circuit’s Recent Opinion in Cendant Corporation Supports CARS’ Request to Modify Paragraph Five of the Protective Order.

 

Under Paragraph Five of the Protective Order, all pretrial pleadings filed in this case are to be presumptively filed under seal if unilaterally designated confidential, a procedure that is contrary to the presumptive right of access to non-discovery pleadings.  Cendant Corp. v. Goldstein, 2001 WL 893393, at *1 (3d Cir. Aug. 8, 2001), which reversed the district court’s issuance of a confidentiality order, id. at *1, re-affirms the Third Circuit’s established presumption of public access to such judicial records.  The court stated that the presumption of access “disallows the routine and perfunctory closing of judicial records.”  Id. at *6 (citing Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994)).  It stated further:

In order to override the common law right of access, the party seeking . . . the sealing of part of the judicial record “bears the burden of showing that the material is the kind of information that courts will protect” and that “disclosure will work a clearly defined and serious injury to the party seeking closure.”

 

Id. at *7 (citing Miller, 16 F.3d at 551).  Further, the Third Circuit stated that defendant bears the burden of proving current reasons why such documents should be sealed:

The strong presumption of public access forces district courts to be cognizant of when the reasons supporting sealing in a specific case . . . have either passed or weakened, and to be prepared at that time to unseal [documents] and allow public access.  Even if a sealing order was proper at the time when it was initially imposed, the sealing order must be lifted at the earliest possible moment when the reasons for sealing no longer obtain.

 

Id. at *8.

On the basis of this presumption of access, which attaches to preliminary and dispositive pretrial non-discovery pleadings, Hammock by Hammock v. Hoffmann‑LaRoche, 142 N.J. 356,  380-81 (1995), CARS seeks to modify Paragraph Five to exclude its application to non-discovery pleadings.  See CARS’ Br., at 15-16. 


CONCLUSION

In light of the continually increasing public interest in this issue of public safety and the presumption of access to court documents, CARS respectfully requests that the Court grant its Motion to Intervene and Vacate or Modify the Protective Order and Seek Access. 

                            Respectfully submitted,

 

                            _________________________

                            CHRISTOPHER M. PLACITELLA, ESQ.

                            ANGELO J. CIFALDI, ESQ.

                            ROBERT T. HAEFELE, ESQ.

                            WILENTZ, GOLDMAN & SPITZER

                            A Professional Corporation

                            90 Woodbridge Center Drive

                            P.O. Box 10

                            Woodbridge, New Jersey 07095

                            (732) 636-8000

                            Attorneys for Intervenors

 

                            REBECCA EPSTEIN, ESQ.

                            Trial Lawyers for Public Justice, P.C.

                            1717 Massachusetts Ave., N.W., Suite 800

                            Washington, D.C. 20036

                            (202) 797-8600

 

                            ARTHUR BRYANT, ESQ.

                            Trial Lawyers for Public Justice, P.C.

                            One Kaiser Plaza, Suite 275

                            Oakland, California 94612

                            (510) 622-8150

 

                            Attorneys for Intervenors

 

cc:  All Counsel of Record


[1] Exhibit A is comprised of fifteen complaints filed with NHTSA regarding tire tread separation since November 1, 2000.  These fifteen complaints likely underrepresent the actual number of incidents that have occurred since November 1, 2000.  First, the likelihood that victims of tire tread separation underreport these problems to NHTSA is significant.  In addition, Exhibit A does not include many NHTSA complaints that included incomplete information.  For example, many complaints did not reveal the date of the incident, or the exact model of tire, or a sufficiently precise description of the problem.  Out of an abundance of caution, CARS has not included these complaints in Exhibit A.  Thus, the fifteen incidents identified by CARS merely indicate the bare minimum number of complaints regarding tire tread separation incidents on these model tires since November 1, 2000.   

 

It is interesting to note that another complainant, who reported a split in the sidewall of the same model tire, stated:  AGoodyear said they were not having problems with these tires.@  See Haefele Certif. at Exhibit B, ODI ID No. 736670.

[2] In addition to the briefing on this matter, CARS respectfully directs the Court’s attention to the three letters that CARS submitted to Judge Shuster after briefing concluded.  These letters, which urged the Judge to set a date for a hearing on this matter, contain updated information about the widespread use of Goodyear tires and growing public interest in the matter.  CARS has attached those letters to this Brief for the Court’s review.  See Haefele Certif. at Exhibits C-E.