Outraged by the FISA Court operating in secrecy? Then you should be about our civil courts too

Outraged by the FISA Court operating in secrecy? Then you should be about our civil courts too

By Amy Radon, Staff Attorney

It’s about time for the plaintiffs’ bar to get serious about the issue of court secrecy and take corporate wrongdoers to task when they try to restrict public access to discovery materials, court records, and settlements that belong in the public domain.

After news broke that an eleven-member tribunal established by the Foreign Intelligence Surveillance Act — the “FISA Court” — was “regularly assessing broad constitutional questions and establishing important judicial precedents” without any public scrutiny, many people were outraged. “After the court rules, its findings are almost never made public,” one commentator complained. FISA’s “secretive review process leaves no meaningful opportunities for third parties to point out flaws in the government’s proposal and suggest alternatives,” noted another. And an editorial from the New York Times, which criticized FISA Court proceedings as “utterly opaque to the public,” called on President Obama to support efforts in Congress to require the Court’s opinions to be made public.

If you’re outraged by the fact that a tribunal like the FISA Court can issue secret rulings behind closed doors without any public oversight, you’re clearly not alone. But I hope you’re just as outraged to hear that secret proceedings involving dangerous products, consumer scams, and corporate wrongdoing are happening in our civil courts — both federal and state — across the nation. 

Scary thought, right?

Public Justice is no stranger to the issue of court secrecy. We represented the medical journal PLoS Medicine in obtaining public access to volumes of discovery material involving drug giant Wyeth Pharmaceutical’s routine failure to disclose its role in preparing medical studies and articles touting its hormone replacement therapy drug as safe when — in fact — independent studies proved that the drug was deadly. We also represented a Montana father, Richard Barber, in unsealing a decades-old court file that contained evidence dating back to the 1940s, which showed that Remington Arms Company knew of defects in its popular Model 700 rifle that caused the rifle to discharge without anyone pulling the trigger. Mr. Barber’s nine-year-old son Gus had been killed by a Model 700 inadvertent discharge.

Corporate defendants often push hard for secrecy in litigation — through overbroad protective orders, sealed court files and secret settlements — because secrecy enables defendants to hide evidence of the health and safety risks their products pose, and keeps other injured victims in the dark. It shouldn’t be this way, and doesn’t have to be this way. The law is extremely favorable to opponents of court secrecy, and most courts, when confronted with a challenge to court secrecy, understand the importance of a transparent judicial system and will rule for public access.

Arguments can be made for and against whether secrecy is justified in the FISA Court, but there’s no excuse for unwarranted secrecy in our civil justice system. If you’re an attorney facing an unjustified confidentiality request from a defendant, please do reach out to Public Justice for help — we’ve provided many attorneys with guidance, briefing and even model protective orders to stop court secrecy in its tracks. If you’re not an attorney, you can urge your legislators to pass sunshine-in-litigation laws that prohibit court secrecy in cases involving matters of public health and safety. As proof that one person can make a difference, Montana’s Gus Barber Anti-Secrecy Act was signed into law thanks to Richard Barber’s efforts to ensure that his elected representatives knew the importance of transparency in our civil justice system.

At least in our civil courts, secrecy should be the rare exception — not the rule.

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