Silence Is Golden, Except When It’s Criminal
Before even the early 1990s, Georgia lawyers pressed for Sunshine Law to prevent corporations from using settlement orders or confidentiality orders to hide defects and public hazards. Those were the so-called Sunshine In Litigation Acts. Other states passed such laws. Even Texas, not noted for its progressive legal posture, passed one. Georgia declined to do so, however.
In one kind of response, plaintiff’s lawyers in defect cases fought for “sharing protective orders,” to help prevent corporations from hiding safety defects. We met with some success, but it seems more recently that courts have worried more about the work they might have to do to enforce orders, and not enough about revelation and public safety. As a result, we have seen more courts decline to do now what so many courts did before, namely, enter sharing protective orders.
Hopefully, recent action by NHTSA, traceable directly to the work done in our case, Melton v. GM, might help change things and brighten the landscape. More specifically, NHTSA has issued a call for consumers and experts to help it develop an Enforcement Guidance Bulletin to prevent settlement agreements, confidentiality orders, and or other confidentiality provisions from hiding defects. The Guidance would help prohibit car makers from using such orders to avoid transmitting defect and safety information to NHTSA. It would help judges and litigants insert language into agreements and orders that would allow information sharing with NHTSA, if not other litigants with similar defects. We think the latter orders are still a key fight, but are happy to see NHTSA acting—and finally using plaintiff’s lawyers as the natural safety allies that they are.
The Guidance will take submissions through October 19, 2015, from the public, counsel, and other interested parties here. Through the Guidance, NHTSA recommends that “litigants include a specific provision in any protective order or settlement agreement that provides for disclosure of relevant motor vehicle safety information to NHTSA, regardless of any other restrictions on the disclosure or dissemination of such information.”
Of help to counsel is the section in the Guidance that sets out many existing legal decisions and arguments for disclosure, and information sharing. And for orders that do not conceal defects, as they once did for the IUD and breast implant defects. As one court noted,
“An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time.”
E & B Mktg. Enterprises, Inc. v. Ryan, 568 NE.2d 339, 209 Ill. App. 3d 626 (1st Dist. 1991).