September 19, 2002
Larry W. Propes
Clerk of the Court
U.S. District Court
1845 Assembly Street
Columbia, South Carolina 29201
Re: Comment on August 1, 2002 Proposed Local Rule 5.03 Amendment
Dear Mr. Propes:
Trial Lawyers for Public Justice (“TLPJ”) respectfully submits the following comment on the proposed amendment to Local Rule 5.03, dated August 1, 2002, which would prohibit the sealing of settlement agreements filed with the court. We wholeheartedly endorse the proposed amendment, which we welcome as an important step forward in the fight against unnecessary court secrecy.
TLPJ is a national public interest law firm dedicated to using trial lawyers’ skills and approaches to advance the public good. Litigating throughout the federal and state courts, TLPJ prosecutes cases designed to advance consumers’ and victims’ rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees’ rights, and protection of the poor and the powerless.
TLPJ is also dedicated to ensuring the proper working of the civil justice system and open access to our courts. For over a decade, we have had a special project – “Project ACCESS” – that opposes unnecessary court secrecy as a threat to public health and safety, the fair and efficient administration of justice, and our democratic system of government. As part of Project ACCESS, TLPJ has intervened in a wide variety of cases to fight for the public’s right to know and has advised attorneys across the country on how to fight unnecessary secrecy in cases implicating public health, safety, and welfare.
Comment on Proposed Amendment to Rule 5.03
TLPJ supports the proposed amendment because it would ensure that the public
has access to important information about the judiciary. Sealed settlements effectively
censor such information, undermining the principles that lie at the core of our democracy.
As James Madison wrote, “A popular government, without popular information, or the
means of acquiring it, is but a prologue to a farce or tragedy; or, perhaps both.
Knowledge will forever govern ignorance: And a people who mean to be their own
governors, must arm themselves with the power knowledge gives.”
Based on this historically rooted system of open government, courts have recognized that the
public has a presumptive right to inspect and copy court records.
The proposed amendment
comports with this right of access by allowing the public to view settlement documents filed in court,
which are, by definition, judicial records.
As the Arkansas Supreme Court has held, once settling
parties “seek the imprimatur of a court, . . . it becomes the public’s business.”
The proposed amendment would also confer a specific, vital benefit on the public by
revealing information about hazardous products or dangerous patterns and practices that lie at the
heart of litigation, thereby avoiding risks that would otherwise remain unknown.
A notorious
example of the harm caused by such hidden dangers is the gruesome pattern of injuries and deaths on
Bridgestone/Firestone tires, which confidential settlements kept hidden for almost a decade. As a
result, millions of unsuspecting consumers continued to trust their lives to potentially deadly tires.
More recently, courts have facilitated secret settlements in sexual abuse cases brought against
officials of the Catholic church, which hid important information relevant to children’s safety. The
Connecticut Superior Court, for example, recently admonished the lower courts of that state for
participating in the “cover-up” of twenty-three sexual abuse cases against a local diocese by sealing
files and delaying trials, “thus encouraging the plaintiffs to enter into settlement agreements
containing confidentiality and non-disclosure provisions . . . .” Rosado v. Bridgeport Roman
Catholic Diocesan Corp., 2002 WL 1837910, at *6 (Conn. Super. Ct. June 12, 2002). Now, more
than ever, courts cannot allow themselves to become unwitting accomplices to such hidden dangers.
Conclusion
In Justice Brandeis’ oft-quoted words, “Sunshine is . . . the best of disinfectants.”
Access to
settlements filed with the court would make the bench and bar accountable, help demystify the court
system, and promote the free flow of information that is so cherished in our country. For the reasons
set forth above, TLPJ respectfully urges the Committee to adopt the proposed amendment to Local
Rule 5.03. Please direct any questions regarding these comments to TLPJ Staff Attorney Rebecca E.
Epstein, who can be reached at (202) 797-8600 (telephone), (202) 232-7203 (fax), or at
repstein@tlpj.org.
Respectfully submitted,
/s/
Rebecca E. Epstein
Staff Attorney