Settlements, Smokes, Secrecy
April 1st, 2009“Secrecy is the freedom tyrants dream of” – Bill Moyers
Our world is in a tug-of-war over information. Transparency, on one end, is struggling to provide all of us with the information we need to make informed decisions. On the other hand, Secrecy keeps that information entombed. This push-and-pull is universal: copyrights, open source, freedom of information acts, national security privileges, internet media, national censors, etc… all involve a balance between freedom of information and the need for secrecy.
This causes a problem within the judicial system. We rely on judges and juries to be the hands of justice, but how can this be accomplished if essential information is cached away? One source of this problem has been settlement of cases.
Settlements are in fashion. Most legal disputes never go to a judgment; rather, they are usually settled out of court by the litigants. When these disputes get squashed, the settlement terms do not have to be disclosed and no mentions of payment or causation need to be made. What’s more, any documents that may have been unearthed during the discovery process or over the course of trial can go back to being hidden.
This makes some sense. Court trials are expensive and can be hostile. A settlement process is an incarnation of negotiation and cooperation, and parties may come out much happier than they would have if there had been a judgement. Yet, the process can deprive society of what it often needs most: justice.
We’ve seen very clearly in recent tobacco trials how important information is. The internal documents exposed in the recent decades of tobacco litigation have been the heart of any successful tobacco suit. Before they had access to memos, research papers, or procedural manuals, litigants were unable to secure a single win against the tobacco industry for thirty years.
What is the justice system to do, then, when the tobacco industry uses out-of-court settlement for the purpose of keeping internal documents internal? There must be a balance between allowing parties to settle on whatever terms they want and ensuring that the courts have the necessary information.
Yet, one tenet of our judicial system is that there must be a real dispute among parties. If the plaintiff and defendant choose to no longer have a dispute, what can a court do? To allow courts to compel non-disputing parties to give up private information would be a bold step.
Should we create a privileged category of information for health emergencies? This might give courts some leeway to force disclosure of documents.
Yet, much of the successful litigation has focused not on the health effects, but rather on the business practices of the industry, such as false advertising. In fact, it is very difficult to prove a health emergency without years of epidemiological research. It is even more difficult if the industry is supporting scientists which testify against causation.
Does this mean that we’re stuck leaving companies with the ability to buy their way out of disclosure?
