*This piece originally appeared on The Legal Examiner.
by Arthur Bryant, Chairman of Public Justice
The federal government says that court secrecy is preventing it from protecting consumers. To stop that, the U.S. Consumer Product Safety Commission just adopted a formal Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation, published in the Federal Register on Dec. 2, 2016. The Guidance urges all judges, plaintiffs, defendants and lawyers, as well as parties wishing to submit amicus briefs, to ensure that every protective and secrecy order and agreement “specifically allows for disclosure” to the “CPSC and other government public health and safety agencies.”
The CPSC Guidance is an enormously important step forward for consumer protection that could reduce injuries and save lives nationwide. Judges need to make sure all protective and secrecy orders and agreements comply with it. Everyone should follow it. As the deadly, growing series of examples—from Remington rifles to Takata airbags to GM ignition switches—proves, court secrecy injures and kills.
The danger is real—and avoidable. The Guidance specifically notes that “safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle defects was kept from the CPSC by protective orders in private litigation.” It cites protective orders in current cases involving allegedly defective propane heaters, wheelbarrows, markers, multimeter devices, office chairs and gas cans that prevent the CPSC from learning the truth. There are undoubtedly many more.
Recognizing that fact, the CPSC advises parties currently negotiating “or already subject to” confidentiality provisions to “use this Litigation Guidance and the CPSC’s standing as a public-health authority” to create an exception to them ensuring that information can be reported to the CPSC and other relevant agencies. It even provides draft language that could be used.