Court secrecy kills. Remington knew for decades that its Model 700 rifle could fire when no one pulled the trigger, was sued repeatedly for the deaths and injuries that caused, and — instead of doing the right thing and recalling the rifles — kept everything secret and paid the victims to settle their cases and keep quiet.
Remington's conduct was – and is – outrageous. But conduct like this is far too common. Secrecy pervades our civil justice system. In the auto industry alone, we learned recently about Toyotas that suddenly accelerate, Takata airbags that shoot shrapnel, and GM ignition switches that fail, causing crashes. All of these dangers were known to the companies and kept secret in litigation long before they became public.
Why?
The central reason is that defendants — interested in maximizing profits — want secrecy. When documents are sealed, many victims won't know they have claims. Others won't be able to sue (or will lose) because of the high cost or difficulty of discovering (or rediscovering) the key information. Top-notch lawyers may find the "smoking gun" documents (an apt term in Remington's case), but, when that happens, the defendant can settle in secret. The total money paid out is still relatively minimal.
In the meantime, the company's stock price is higher, government regulation is stymied, the press knows little, and the public knows almost nothing. And sales continue.
Many plaintiffs and their lawyers go along because fighting takes time and money. Defendants will say, "You can have the information now if you agree to keep it secret or you can spend a year or two trying to get it." Or they will say, "We will settle the case now — at a premium — if the settlement is sealed or we will keep fighting and you may never win anything." Most injury victims can't afford the risk of turning down a substantial settlement to fight for the public's right to know.
Judges are not supposed to order secrecy unless those seeking it prove that there's "good cause" for it. Public Justice was able to get public access to Remington's documents because, thankfully, that's what Senior U.S. District Court Judge Ortrie D. Smith did. Many judges, however, view their role as resolving disputes. When the parties agree to a protective order or secret settlement, most judges are not going to reject it. The plaintiff is satisfied. The defendant is satisfied. What's the problem?
The problem is that unjustified secrecy undermines our system of justice, threatens the public health and safety, and subverts the democratic principles on which our country is based. It makes learning and proving the truth harder, prevents injured people from holding wrongdoers accountable, and makes it more costly to do so. Even when they win, they get less compensation than they should. They have to pay the costs of (again) discovering the key documents.
Repetitious discovery costs the defendants more, too, but they don't mind. It costs far less than adequately compensating all of the victims.
But the judicial system and the taxpayers pay an enormous cost. Judges must decide the same discovery disputes, over and over again. Cases that would have been easily resolved, if the truth was known, take years. And the system is perverted. When documents are sealed, instead of ensuring that the truth comes out and justice is done, the judicial system can be used to ensure that the truth remains hidden and justice is denied. Meanwhile, people are injured and die.
Finally, our democracy is undermined. The courts and the law are supposed to do justice. The public can't tell whether they are doing so — or if change is needed — if it doesn't know how the system is working. Information is power and, without information, the public is powerless to act.
To fix this, the public, the press, and public interest groups need to recognize and expose the dangers of unjustified secrecy, express their outrage, and work to stop it. Defendants and their lawyers need to value lives and safety over profits. Plaintiffs and their lawyers need to fight unnecessary secrecy. And judges need to enforce the law.
If we truly want to solve this problem, however, the system needs to be changed. No court should be able to enter an order keeping a danger to the public secret. No agreement or order keeping such a danger secret should be enforceable.
After a Remington 700 fired without a trigger pull and killed 9-year-old Gus Barber, his father, Rich Barber, persuaded the Montana legislature to enact a bill with provisions like these. It's called the Gus Barber Antisecrecy Act.
A handful of states have similar laws. It should not take more deaths for the other states and Congress to adopt such laws, too.
Commentary by Arthur Bryant, the chairman of Public Justice, a national public interest law firm that pursues high-impact lawsuits to combat social and economic injustice, protect the Earth's sustainability, and challenge predatory corporate conduct and government abuses.
