A Drive To Keep Court Files Secret   

Trend toward openness draws a counterattack.

Just when the press thought it was getting closer to some of the best stories on the courthouse beat, a secrecy-in-the-courts campaign is threatening to keep such pieces well out of reach. This is an effort, spurred onward during this year's presidential campaign, that is sure to intensify in coming months.

What may be kept under wraps, if that effort ultimately succeeds, would be some of the most embarrassing inside details about American manufacturers' operations, and about doctors' and hospitals' treatment methods: provocative details about hazardous products, dangerous medicines and harmful medical procedures.

Revealing facts of that kind often are found in legal documents filed in connection with lawsuits. Those cases may be product liability lawsuits, such as the hundreds filed against cigarette companies by smokers with lung cancer (or by their survivors), or the thousands filed against manufacturers of new drugs. Or they may be malpractice lawsuits, of an infinite variety, filed against doctors, surgeons or hospitals.

Information known only to insiders – about how products are made, what hazards they pose, how drugs or medical devices are produced and used, what treatment techniques have been employed – is the stuff of damage lawsuits. Often such data emerge during pre-trial maneuvering; a good deal of it is in courthouse files.

A substantial part of it, however, is never made public, even during trials, because it is kept under court seal to preserve its confidentiality, sometimes to protect lawyer-client privacy, sometimes to shield trade secrets.

Manufacturers, doctors and hospitals, and the insurance firms that may have to pay damage claims, want the bulk of that information to remain secret. Over the past year, and especially during the election campaign, Vice President Dan Quayle became a cheerleader for litigation secrecy.

It was a part of Quayle's broader lawyer-bashing agenda. But his role was not really necessary, because the real adversaries intend to carry on the battle anyway. Neither side – big business and the medical community or their adversaries among lawyers and journalists – is likely to surrender any time soon.

In recent years, the press has shown growing interest in trying to uncover details in damage lawsuit. Similarly, lawyers handling such cases have been pressing hard to learn what their colleagues have turned up. Here is what they are after:

•The amount paid, and other terms of the deal, when damage lawsuits over a faulty product or a flawed medical procedure are settled out of court.

•Internal memos on how products are manufactured, possibly revealing design defects, plus memos on how products are tested for potential safety or health hazards, and documents on marketing strategies and legal defense tactics.

•In-house studies that may show that a product or a procedure was known to pose a significant risk of injury or death – sometimes before it was marketed.

•Private patient treatment files, perhaps portraying missteps and possibly outright wrongdoing in medical practice.

•Confidential memos that may reveal efforts to cover up known risks or hazards, or to deny publicly that such threats exist.

In at least a few areas of the country, demands by the press and litigating lawyers for that data have met with success, through enactment of new "sunshine in litigation" rules (as in New York last year and Texas in 1990), court decisions (as in the cigarette industry revelations compelled by a New Jersey federal judge, Lee Sarokin, in several cases), and new mandatory "open courts" legislation (as in Florida in 1990).

Big industry, big insurance and the medical profession, of course, have been fighting that movement (with Quayle's highly visible support this year), and they have succeeded in a number of states. Their greatest success, though, was with the Bush administration, in persuading Quayle to include on his civil justice reform agenda proposals to strengthen the courts' power to preserve confidential and trade secret information and thwart new court rules or legislation making that information more accessible.

Lately, the challengers of the "open courts" trend have found a need to move more aggressively. In perhaps the boldest gesture, they got a federal appeals court to oust Sarokin from handling the cigarette industry cases.

In another recent incident, the aircraft manufacturing arm of the giant Japanese industrial combine, Mitsubishi, has gone to the U.S. Supreme Court in an effort to keep secret some internal air safety memos demanded in a damage case about an airplane crash.

And, in a much-ballyhooed new lawsuit, with the nation's biggest manufacturers lending their weight, a constitutional attack was mounted in a Florida court on the state's sweeping Sunshine in Litigation Act, which seeks to end court concealment of data about "public hazards."

In the working world of courthouse reporters, those gestures may mean far tighter seals on some very newsworthy legal files. l