The Human Toll of Court Secrecy

The Human Toll of Court Secrecy

photo credit: dharder9475 via photopin cc

By Jennifer Bennett
Budd-Kazan Attorney

It has not been a good year for auto safety. More than 60 million vehicles were recalled in 2014—that’s more than twice the previous record. And every day it seemed there was another story of a tragic death or life-changing injury that could have been prevented if only some car manufacturer had come clean about a defect in its cars, or the National Highway Traffic Safety Administration—the federal agency charged with protecting drivers—had kept better tabs on car makers, or court records evidencing a dangerous defect had been made public.

Unfortunately, it doesn’t appear to be getting better. Since this post in late October, reports have continued to pour in from Chrysler owners about power system-related problems (technically, the issue seems to be with the Totally Integrated Power Module). And the Center for Auto Safety now thinks that there’s been at least one death. Although, by law, NHTSA was required to decide by Dec. 19 whether to open an investigation, so far, there’s been no word from the agency.

And just last Tuesday, a court presiding over a lawsuit against Chrysler denied our motion—filed on the Center’s behalf—to unseal documents filed in the case. The court held that even documents that “do not appear to contain significant technical information” (emphasis mine) and therefore are not likely to qualify as trade secrets—for example, emails between Chrysler employees—may remain sealed. Because the lawsuit is still ongoing, the court reasoned, these documents, produced early on in litigation, may not provide a complete picture of the safety of Chrysler cars. But the documents are Chrysler’s. If the company thinks more documents need to be released to provide a full picture of what’s going on, it can simply release them. Chrysler, of course, isn’t doing that. Rather than providing a complete picture, the company seems to be doing its best to ensure the public has no picture at all.

The court was also worried that if the documents were unsealed, an “offhand remark in an email” could become a “gotcha quote in headlines.” This is a reasonable concern. But it’s one the law has already weighed: Courts have repeatedly held that the public right of access to court records is so important that it trumps any generalized concerns about corporate embarrassment. That’s why there is no “offhand remark” exception to the rule that court records are presumptively public. Nor is there any exception that allows a company to keep documents secret just because they may be incomplete, or inarticulate, or, yes, even embarrassing. Court records should not be sealed simply because releasing them might require a corporation to do damage control.

If you think this all sounds eerily familiar, you’re not wrong. Earlier this year, GM recalled millions of cars—yes, millions—because of an ignition switch defect that, in some circumstances, causes the air bags not to deploy. We don’t yet know how many people died because of this defect, let alone how many more were injured, but we do know it was bad: According to Reuters, at least 74 people have been killed because their air bags did not inflate due to the defect. That’s bad enough. What makes it worse is that it didn’t have to be this way. GM knew about the problem for more than a decade and didn’t say anything.

How could this happen? Did GM just hide the fact that a defect in its cars was probably killing people? Well, yes. But it had help.

According to a recent report by the staff of the (Republican-led) House Committee on Energy and Commerce, NHTSA fell down on the job: Apparently, the agency had all the information it needed to identify the defect years before the recall, but it failed to connect the dots—a failure that, in the Committee’s view, was simply “inexcusable.” NHTSA, the report concluded, “lacked the focus and rigor expected of a federal safety regulator.” Perhaps even more damning, the Committee found no reason to believe that NHTSA has learned from its mistakes, “no evidence” that anything at the agency has changed.

It was not just NHTSA, though, that kept GM’s secret. The courts helped too. People have been suing GM since at least 2005 for injuries—and deaths—resulting from the ignition switch defect. But the company quietly settled these cases, and the courts quietly entered protective orders, keeping the records (and the settlements) secret—despite the fact that court records are presumptively public documents. If these records had been made public, we would have known of the problem years earlier. What you don’t know can, in fact, hurt you.

Right now, the same story is playing out with Takata—the company that makes air bags that, apparently, sometimes explode. So far, over 19 million cars have been recalled for fear that rather than protect passengers, their air bags will instead kill them. Indeed, several people have already died, and many more have been injured. But like the GM ignition defect, it appears this too could have been prevented.      

The New York Times has reported that Takata knew of the problem for years but didn’t alert the public. And neither did NHTSA. Although the agency opened an investigation in 2009, the inquiry went nowhere. Takata hired a former NHTSA official to represent it, and NHTSA promptly closed the investigation before the company had even submitted all the relevant documents. It was years before the agency did anything further.

As in the GM case, there were lawsuits over the years. But, like the GM suits, they were settled quickly and confidentially.

Will Chrysler become the next GM or Takata? We don’t know yet. But we do know that NHTSA blew through the deadline to decide whether to open an investigation. And now the court overseeing a lawsuit against Chrysler has sealed the records. Sure sounds familiar.

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