Woodbridge
November 15, 2000
HAND DELIVERED
Honorable Neil H. Shuster, J.S.C.
Mercer County Civil Courts Building
175 South Broad Street
Trenton, New Jersey 08650
Re: Frankl,
et al. v. Goodyear Tire & Rubber Co., et al.
Docket No. MER-L-003052-99
Dear Judge Shuster:
Please accept this Reply in letter form in lieu of a more formal reply to the Response filed by Goodyear Tire & Rubber Co. (Goodyear”) to the Brief of Consumers for Auto Reliability and Safety (“CARS”) in Support of its Motion to Intervene, Vacate or Modify Protective Order, and Seek Public Access to Documents (“CARS Br.”). There is enormous public concern that the currently-secret pleadings and documents in this case may be hiding evidence of a grave danger to the motoring public posed by Goodyear’s 16-inch Load Range E tires. For that reason, we are replying to Goodyear’s Response on an expedited basis -- and respectfully request that oral argument be scheduled on our motion as quickly as possible. [1]
Before we address the specific arguments in advanced in Goodyear’s Response, we must note that Goodyear=s submission fails even to mention the most important factor to be considered by the Court: the public’s interest in determining whether Goodyear’s tires pose a threat to public safety. This vitally important consideration lies at the heart of CARS’s efforts to obtain public access to the sealed documents and pleadings in this case. As the Supreme Court of New Jersey stated in Hammock by Hammock v. Hoffmann‑LaRoche, 142 N.J. 356, 378 (1995), “[I]n litigation that comes before our courts, there is a profound public interest when matters of health, safety, and consumer fraud are involved.” See also, CARS Br., at 20-21 (citing Pansy v. Borough of Stroudsburg, 23 F.3rd 772 (3rd Cir. 1994); In re Agent Orange Product Liability Litigation, 821 F.2d 139 (2d Cir.), cert. denied, Dow Chemical Co. v. Ryan, 484 U.S. 953 (1987); Hammock; and CPC Int=l Inc. v. Hartford Accident and Indemnity Co., 262 N.J. Super. 191 (1992)).
In this case, information available to the public already shows that tread separation in Goodyear’s 16-inch Load Range E light truck tires is widespread, and is already responsible for killing or maiming individuals across the country and internationally. The public’s legitimate interest in the potential danger of these tires is growing. See, e.g., Associated Press Worldstream, Brazilian Family Sues Goodyear, Nov. 9, 2000; John Russell, Goodyear’s Secrecy Under Fire: Tire Maker Acknowledges Replacements, Denies Recall, W.S.J., Nov. 8, 2000; Diane Evans, Holding Back Information Didn’t Work in Firestone Case, and It Won’t Work Now, Akron Beacon-J., Nov. 8, 2000; MSNBC Worldwide Web site, Report: Goodyear critics claim tires replaced in “Silent Recall”, <www.msnbc.com/news/486657.asp>, Nov. 7, 2000; David Kravetz, Lawyers Seek Goodyear Documents, Associated Press, Nov. 2, 2000; John Russell, Goodyear Taking Heat: Pressure Mounts on Tire Maker to Release documents Related to Accidents, Akron-Beacon J., Nov. 2, 2000. Goodyear cannot avoid this public interest by failing to mention it. The arguments that Goodyear does advance, moreover, cannot overcome CARS’s and the public’s interest in access to the pleadings and documents in this case.
CARS’s Motion to Intervene Should
be Granted.
Goodyear does not actually address, much less contest, CARS’s Motion to Intervene. Instead, it begins its Response by asserting (1) that CARS “apparently has some association with” the national public interest law firm that represents it in this case, Trial Lawyers for Public Justice (“TLPJ”); (2) that TLPJ is Aaffiliated with ATLA@ (the Association of Trial Lawyers of America); and (3) that CARS’s mission in this case must, therefore, be to “secure release of [the] documentation” in this case “for the benefit of Plaintiffs represented by members of th[at] Association.” It is true that TLPJ “has some association with” CARS; specifically, TLPJ represents CARS in this case. Otherwise, these statements are both false and utterly irrelevant. Indeed, under the law, assisting injury victims would be an entirely appropriate reason for seeking public access.
The sole “evidence” Goodyear submits in support of these assertions is a copy of one page from TLPJ’s web site that does not mention CARS, but does include “links” to the web site of ATLA and many state trial lawyer associations under the heading “Trial Lawyer Associations.” This is absurd. TLPJ’s web site also contains links to the web sites of the American Bar Association, RAND, the Harvard Law School Library, the Society for the Study of Legal Aspects of Sport and Physical Activity, and numerous other groups and institutions. We can only imagine what fictitious conspiracy Goodyear would attempt to weave out of them.[2]
As the Certification of CARS President Rosemary Shahan demonstrates, CARS has worked for decades to promote auto safety and prevent auto-related deaths and injuries. It seeks to intervene here to further those goals. Its motion to intervene should be granted.
The Umbrella Protective Order
Should be Vacated.
In our opening brief, we showed that the umbrella protective order in this case should be vacated both because there was never any good cause shown for its entry and because, regardless of what happened when the order was first entered, Goodyear cannot prove that good cause exists for it now. See CARS Br. at 9-15. In its Response, at 2 (citing Pansy), Goodyear concedes that it was required to make a threshold showing of good cause to justify the order’s original entry. The sole ground Goodyear offers to establish that it met this burden, however, is the fact that Plaintiffs’ counsel stipulated to the order at the Court’s urging. Id. Goodyear cites no legal precedent for this novel argument and the cases it does cite specifically contradict it, saying that an umbrella protective order may only be entered “upon a threshold showing by the movant of good cause.” Pansy, 23 F.3d at 787 n.13; Rutigliano v. Appleton Papers, Case No. 90-1432, slip op. at 6 (D.N.J. Oct. 6, 2000) (same).
In fact, courts have specifically
held that good cause must be proven even when parties stipulate to a protective
order. E.g. Jepson, Inc. v.
Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (AEven if the parties agree
that a protective order should be entered they still have >the burden of showing
that good cause exists for issuance of that order.”). Goodyear’s argument that good cause is shown whenever the parties
stipulate to secrecy would render the good cause requirement meaningless. In fact, the U.S. Judicial Conference
recently considered a proposal to amend Federal Rule 26 (c) so courts could
enter protective orders “on stipulation of the parties” even if there was no
showing of “good cause.” The Conference
overwhelmingly rejected the
proposal. See “Judges Reject
More Civil Court Secrecy,” New York Times, Mar. 15, 1995, at A1; Glenmede
Trust Co. v. Hutton, 56 F.3d 476, 484, 485 n.14 (3rd Cir. 1995)
(citing Judicial Conference of the United States, Preliminary Report Judicial
Conference Actions, March 14, 1995; Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, Report of Advisory
Committee on Civil Rules, December 13, 1994, and rejecting rule that would
allow parties to control the use of protective orders).
Far more important, Goodyear offers no evidence B much less “good cause” B to support a finding that there is currently a valid basis for continuing the umbrella protective order. That, however, is the burden Goodyear is required to meet. See CARS Br. at 12-15. Surely the value of prompt and efficient litigation, cited in Goodyear’s Response at 2, cannot B without more B justify the entry of a protective order. If it did, then all litigation would be conducted in secret. Moreover, Goodyear cannot make any showing sufficient to overcome the enormous national public interest in evaluating the safety of Goodyear’s tires in this case. Because good cause has not been proven, and because the public interest outweighs the corporation’s interest in secrecy, the protective order should be vacated in its entirety.
If the Umbrella Protective Order is Not
Vacated, It Should be Modified.
In our opening brief, we noted that, if the umbrella protective order was not vacated, Paragraph Five of the order needs to be modified to allow public access to all nondiscovery motions and to allow public access to as much of each pleading as possible. See CARS Br. at 15-16. These modifications are required by the common law right of access to pleadings, as articulated by the Supreme Court of New Jersey in Hammock. Goodyear concedes that Hammock provides “much higher protection” for public access to certain pleadings, but erroneously states that the presumption of public access under Hammock applies only to “dispositive” nondiscovery motions. Response at 2. In fact, the Supreme Court of New Jersey expressly stated to the contrary. Hammock, at 380-81 (holding that the presumption of public access attaches to “pretrial-nondiscovery motions, whether preliminary or dispositive”) (emphasis added); accord Leucadia, Inc. v. Applied Extrusion Tech. Inc., 998 F.2d 157, 164 (3rd Cir. 1993). Thus, Goodyear has not countered CARS’s assertion that nondiscovery pleadings should be available to the public under the common law.
Similarly, Goodyear has not countered CARS’s demonstration that Hammock requires Paragraph Five to be modified to ensure that the public has access to all pleadings to the extent possible, with appendices sealed or portions redacted only to the extent justified by a showing of good cause. Instead of offering any law to support its position, Goodyear simply insists that blanket secrecy of all pleadings that relate in any way to any discovery documents that Goodyear labels confidential is the only way its interests can be protected. Response at 2. This argument contradicts our country’s strong tradition of open judicial proceedings, some of which have publicly dealt with far more sensitive matters of national security than the documents at issue here. This rule is so well-established that Judge Easterbrook, when recently deciding whether to seal briefs and the court record, wrote the following:
No one would dream of saying that every dispute about trade secrets must be litigated in private. Even disputes about claims of national security are litigated in the open. Briefs in the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), and the hydrogen bomb plans case, United States v. Progressive, Inc., 467 F. Supp. 990, reh=g denied, 486 F. Supp. 5 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979), were available to the press. . . .
Many a litigant would prefer that the subject of the case . . . be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing. . . . What happens in the halls of government is presumptively public business.
Union Oil Co. v. Leavell, 220 F.3d 562, 567-68 (7th Cir. 2000) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978); In re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985)) (emphasis added).
The fact that Goodyear fails to understand this lesson is demonstrated by its insistence (apparently pursuant to Paragraph Five of the protective order) that its Response to our Motion for Public Access had to be filed under seal. By any measure, Goodyear’s Response should be open to the public. It does not even arguably contain any trade secret or proprietary information. Incredibly, Goodyear is attempting to hide from the public not only the underlying information that it has inadequately justified as secret, but also its very grounds for doing so. As Judge Easterbrook recently remarked, this argument contradicts precedent. Leavell, 220 F.3d at 567-68 (citing Pentagon Papers case and hydrogen bomb plans case). The Court should reject this fallacy, and modify Paragraph Five of the protective order to allow public access to all portions of all pleadings for which no good cause for secrecy has been shown.
In its Response, Goodyear also objects to modifying Paragraph Six of the protective order, in accordance with the American Bar Association’s recommendation, to ensure that any documents returned to Goodyear are not destroyed so “they will be available, under appropriate circumstance, to government agencies or other litigants in the future.” The only ground Goodyear gives for its position is that it takes umbrage over the fear that such destruction would occur. Response, at 3. But this is not a legal argument, and the ABA’s recommendation was addressed to all litigants, not just Goodyear. Moreover, Goodyear’s non-binding assertion that “unwarranted” destruction will not occur is hardly comforting B especially since Goodyear then says that it will maintain the documents “in accordance with recognized record retention policies and laws for the prescribed periods of time.” Response at 3. For all we know, Goodyear’s “recognized record retention policies” call for the destruction of documents disclosing dangers in its products as soon as possible, unless they are currently subject to a subpoena. Without a legally enforceable provision in the protective order, current and future parties would have no legal recourse if Goodyear participated in what it viewed as “warranted” destruction of documents after this litigation is resolved. The Court should consider the public and potential litigants’ interest in ensuring future access to documents relevant to this litigation, and amend the protective order to include the language recommended by the ABA.
The Court Should Grant Public Access to the
Contested Deposition and Documents.
Finally, Goodyear has not rebutted our demonstration that, under Rule 4:10-3, Goodyear cannot bar public access to the contested deposition and thirty-three discovery documents through generalized assertions of trade secrets and proprietary information and, instead, must prove with particularized evidence that Goodyear’s interest in secrecy outweighs the public’s interest in disclosure. While we are not in a position to address any evidence Goodyear may have submitted under seal in an attempt to show good cause for sealing these documents, the arguments in its Response have no merit.[3]
To begin with, neither Seattle Times nor that portion of the Rutigliano opinion cited by Goodyear undermines our Rule 4:10-3 contention. Instead, Seattle Times holds and that portion of Rutigliano repeats that, if good cause is shown, a protective order governing discovery does not violate the First Amendment. We wholly agree. But Goodyear has not and, we believe, cannot make any such showing here.[4]
Goodyear’s reliance on Hammock is similarly misplaced. In fact, as we have shown above and in our opening brief, Hammock makes clear that the common law right of access supports public access to the pleadings in this case. The issue of R. 4:10-3, however, was not before the court: the intervenor in that case did not make an access argument on that ground, and the court did not fully analyze that Rule in its opinion. Id., at 370 (stating that the grounds for intervenor’s claim of public access rested on the common law and First Amendment).[5] Both the plain language of Rule 4:10-3 and the case law cited in our opening brief at 17-23 demonstrate, however, that Goodyear cannot prevent public access to the contested documents unless it can show, through particularized evidence, that there is good cause for secrecy which outweighs the public’s interest in disclosure. Since Goodyear cannot make such a showing, the documents should be available to the public.
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