Joseph F. Anderson Jr., chief judge of the U.S. District Court
in South Carolina, surprised his colleagues in the judiciary and
throughout the legal and access communities, when he sent a letter
this summer to the other judges on his court recommending that
federal courts stop signing orders sealing settlements in civil
Anderson said he was prompted in part by what happened in the
Firestone tire litigation. Records revealing a defect in the tires
were sealed in earlier litigation, then were unsealed in later
lawsuits over more fatalities said to be caused by the tires.
"Arguably some lives were lost because judges signed
secrecy agreements regarding Firestone tire problems,"
Anderson's letter also mentioned the Catholic priest
sexual abuse scandals and Enron.
The South Carolina federal court accepted public comment on the
proposal for several weeks and eventually adopted the rule. Parties
could still agree on their own to keep documents confidential, but
they could not ask the court to prevent the release of records
filed with the court.
The move prompted other courts to reexamine their role in
sealing settlement records. The judges in the U.S. District Court
for South Florida initiated their own inquiry into the pros and
cons of sealing settlements, as did the South Carolina Judicial
Department, which accepted public comment on a proposed rule until
Corporate and individual citizen defendants have traditionally
favored sealing settlements because records often reveal valuable
trade secret or intellectual property information.
Plaintiffs lawyers have been complicit in routine sealing
because a promise of confidentiality often prompts defendants into
settling instead of going through a costly and risky trial. Plus,
many plaintiffs don't want to announce to the world that they
are newly wealthy.
Many in the personal injury trial attorneys bar went on record
as supporting Anderson's proposal, though, saying access to
relevant documents is in the public interest, not just the private
interest of the individual litigants.
As Texas personal injury attorney Chuck Noteboom recently wrote,
"If there is anything good to come out of the Enron and
Arthur Anderson scandals, the WorldCom debacle and the sexual abuse
cases against the clergy, it is this: The judiciary is taking the
lead in advancing the notion that secrecy hurts society, and secret
settlements hurt people."