Woodbridge
October 5, 2001
Hon. Jack M. Sabatino, J.S.C.
Superior Court of New Jersey
Mercer County Courthouse
P.O. Box 8068
Trenton, NJ 08650-0068
Re: Estate of Robert Frankl,
et al v. Goodyear Tire & Rubber,
et al
Dear Judge Sabatino:
We are writing on behalf of Consumers for Automobile Reliability and Safety (“CARS”) to call Your Honor’s attention to information that we learned on Thursday. The information is pertinent to Your Honor’s consideration of CARS’ application to vacate or modify Goodyear’s protective order in the above-referenced case. Rather than waiting until the date of the hearing, October 9, 2001, we wanted to identify this material in advance of the hearing, rather than having the material appear as a surprise at the hearing.
Implicit in Goodyear’s most recent opposition to CARS’ motion is the proposition that the motion should be considered moot because the plaintiffs and Goodyear have resolved their differences. The significance of the Frankl protective order, as well as its propriety, is underscored by arguments Goodyear’s counsel are making throughout the country, where they are seeking to thrust confidentiality upon other plaintiffs’ counsel by citing to the Frankl protective order.
As Goodyear has acknowledged, various plaintiffs’ counsel in similar litigation throughout the country have received Goodyear documents, purportedly pursuant to terms of the Frankl order. Accordingly, Goodyear is continuing to seek enforcement of the terms of this order. Although Goodyear may suggest that individual protective orders are being negotiated in each of those individual cases, again, the focal point has been repeated reference to the Frankl order. Goodyear has repeatedly taken the position that these other lawyers have only two choices: either return all of the documents to Goodyear pursuant to the Frankl order, or consent to a separate protective order in the individual cases. (See attached letter from Goodyear counsel, John W. Rogers, dated September 14, 2001, at Exh. A.) Hence, Goodyear is using the Frankl protective order to strong arm other plaintiffs’ counsel into equally inappropriate protective orders throughout the country.
A particularly telling example of the expansive nature of Goodyear’s interpretation of the protection – as well as an example of the mess created by asserting national reliance upon such inappropriately designated protection – comes from an incident that happened only recently in Florida. We learned on Thursday afternoon that a reporter from the St. Petersburg Times obtained from a court clerk’s office in Florida certain Goodyear documents that Goodyear alleges should have been considered sealed. Goodyear’s allegation that those documents should have been under seal is premised upon the Frankl protective order. (See attached correspondence from Goodyear attorney Michael P. Milton, dated October 3, 2001, and reply correspondence from St. Petersburg Times attorney Alison M. Steele, dated October 3, 2001, Exhs. B and C respectively.)
Although Goodyear would apparently have this court understand that plaintiffs’ counsel are willingly entering into protective orders, the actual circumstances seem to be that the confidentiality orders are being thrust upon these counsel. At least several of the attorneys, after having an opportunity to examine the documents over which Goodyear claims privilege, have expressed concern over the propriety of the Frankl order, which is being asserted against them, and reluctance to return the documents to Goodyear. For example, in an October 4, 2001 letter from B.R. Kaster, one of the plaintiffs’ counsel in other litigation, to TLPJ attorney Rebecca Epstein, Mr. Kaster states that based on his understanding of the content of the Goodyear documents, they do not constitute trade secret or other confidential or privileged information which should be the subject of a protective order. (See attached letter from B.R. Kaster, dated October 4, 2001, Exh. D.)
Similarly, another plaintiffs’ counsel, Don Fountain, has reviewed the documents that he received from plaintiffs’ counsel in Frankl pursuant to the strict terms of the Frankl protective order. Although Goodyear is asserting that, pursuant to the Frankl order, Mr. Fountain must return the documents (or, presumably, enter a separate protective order), after examining the documents, Mr. Fountain has expressed reluctance to return them because he disputes the designation of the documents as confidential. (See attached letter from Don Fountain, dated October 4, 2001, Exh. E.)
Two resounding themes repeat in all the instances. First, the issue of the propriety of the Frankl order is not moot. Relying on the Frankl order, Goodyear continues to try to hamstring and strong arm plaintiffs’ counsel throughout the country, thereby perpetuating protection which Goodyear has never properly shown to exist – either in this Court or anywhere. Perhaps even more egregious, the public has never been given the opportunity even to glimpse at documents that may show the dangerous nature of products that may continue to be in the marketplace and, indeed, may be continuing to flood into the marketplace as further Firestone tires are recalled. The second resounding theme is that, in the reported instances where plaintiffs’ counsel have examined the documents, nowhere has anyone conceded that the documents contain anything that is appropriately deemed confidential.
Under the circumstances, we would ask Your Honor to take this new information into further account in deciding CARS’ application.
Respectfully submitted,
_________________________
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
Enclosures
cc: All counsel