Confidentiality orders are routine in many types of personal injury cases – especially product liability cases.
Why do defense attorneys insist on confidentiality orders for discovery and confidentiality clauses in their settlement agreements?
- They don’t want to get sued again – if a settlement amount is made public, it may encourage more people who were injured by the same product to sue,
- They want to limit future settlements – they don’t want another plaintiff’s attorney to point to a prior settlement and refuse to accept anything less than that amount,
- They don’t want to change their business model – if it becomes public that they are manufacturing or selling a dangerous product, they will have to make changes to make their product safer, and
- There may be legitimate concerns related to protecting trade secrets, medical information, or other personal data that should not be made public.
But why do they allow the secrecy to continue in cases where the secrecy is likely to kill people? Thousands of people, in some cases?
When people are dying due to an unsafe product, are defense lawyers, plaintiffs’ lawyers, and judges committing mass murder to protect the bottom line for corporations?
And what can be done to change it?
When Confidentiality Orders Kill
If it sounds extreme, that’s because it is extreme. Let’s look at just one example.
In the 1980s, GM conducted tests that showed “people wearing seatbelts in vehicles with stronger roofs were likely to suffer less severe injuries in a rollover.” So, what did they do?
They 1) made no changes to the roof strength in their vehicles, 2) denied liability in thousands of lawsuits that were brought over the decades since they discovered that their roofs were unsafe, and 3) demanded confidentiality orders before producing discovery in lawsuits and insisted on confidentiality clauses in their settlements.
Knowing that their roofs were killing people, GM continued to manufacture the same roofs, continued to deny liability, and continued to insist on confidentiality orders and confidential settlements to protect themselves.
In just 10 years, “more than 5,000 seatbelt-wearing passengers died in GM rollover accidents, many more were injured, and the company was still pumping out new vehicles with similar roofs.”
It took decades of litigation, thousands of deaths, and an untold number of injuries before enough evidence was made public that someone could mount a campaign to change the rules on roof strength to force GM to make the changes.
Why Do Corporations Insist on Confidentiality Agreements and Confidentiality Orders?
In some cases, there is only one reason why – GM, like most corporations, was going to continue manufacturing their product until 1) the cost of liability for dead consumers was greater than the cost of changing their product to make it safer or 2) the government stepped in and forced them to make the changes.
Consumers die to protect the bottom line for corporations, and the attorneys and courts involved in these cases are complicit. More than complicit – but for confidentiality orders that are routine in products liability cases that are 1) insisted upon by defense attorneys, 2) accepted by plaintiffs’ attorneys, and 3) approved by judges, thousands of people would not have been killed by the roofs on GM’s vehicles.
And this is only one example out of the thousands of products liability, pharmaceutical, and other types of cases that are brought every year to challenge unsafe products that are killing or severely injuring people.
Defense Attorneys Insist on Confidentiality Orders to Protect Their Clients’ Interests
Why do defense lawyers insist on confidentiality orders?
They do it because their clients insist on it. They do it because it is in their clients’ best interests – and those interests are often solely financial with no regard for the human cost. They do it because it’s legal, because they can, and because their job is to save as much money as possible for their client.
They do it because it is routine, and everyone does it – it’s just how it’s done.
They do it because, if they refused to do it, their clients would fire them and find another attorney who will do it.
Plaintiffs’ Attorneys Accept Confidentiality Orders to Protect Their Clients’ Interests
But why do plaintiffs’ attorneys go along with it? Granted, not all plaintiffs’ attorneys realize when their actions are killing people, and not every confidentiality order results in thousands of deaths…
When plaintiffs’ attorneys agree to confidentiality orders and confidential settlements, we do it because it is in our client’s best interests. If our client needs money now, the defense is willing to give it to them but only if it is confidential, and our client says, “take the money,” we must settle the case.
When plaintiffs’ attorneys fight a confidentiality order, the court usually rules against them, and then they have no choice but to abide by the court’s order. Defense lawyers don’t say to the court, “please sign this order because, although people will die, it saves money for my client.”
Instead, they make valid legal arguments that are supported by case law: “this information must be kept confidential because it is a trade secret, because there is personal information contained in the data, and because we cannot allow our competitors to gain an unfair advantage as a result of this lawsuit… “
Like defense attorneys, plaintiffs’ attorneys are bound by the Rules of Professional Conduct which mandate that we are loyal to our clients and no one else, that we act in our client’s interests and no one else’s, and that we follow our client’s direction so long as all the above is legal and does not otherwise violate the Rules of Professional Conduct.
Judges Sign Confidentiality Orders Because That’s Their Job
Why do judges sign confidentiality orders when those confidentiality orders may result in deaths?
Judges are not supposed to peer into a crystal ball and predict how many deaths may be caused by an order they sign. When both parties agree to an order, the judge will usually sign it if both parties have agreed to it.
When the plaintiff doesn’t agree and litigates the issue of confidentiality, the defense often has legitimate legal arguments (trade secrets, for example), that are supported by case law. When there is a court rule, law, or appellate opinion that supports the defense’s position, the court must rule in their favor and sign the confidentiality order…
What’s the Answer?
One answer is legislation, although I’m not holding my breath waiting for it.
- Protects corporations’ trade secrets and provides for secrecy when there is a valid reason for it, but
- Allows plaintiff’s attorneys to challenge confidentiality based on public safety concerns without jeopardizing their client’s settlement and without penalty, and
- Requires the court to deny requests for confidentiality when there is a reasonable probability that lives will be at risk.
Courts should be required to consider the public safety risks of any confidentiality order or confidential settlement, sua sponte and without urging from either side and reject them if there is a reasonable probability the secrecy will risk lives.
Defense attorneys must be allowed to protect their clients’ interests. Plaintiffs’ attorneys must be allowed to protect their clients’ interests. But corporations should not be allowed to buy secrecy and kill people with the assistance of attorneys and judges.
Personal Injury Attorneys in Myrtle Beach, SC
The Myrtle Beach personal injury lawyers at Coastal Law accept most types of SC personal injury cases, including auto accidents, motorcycle crashes, products liability, slip and fall cases, and wrongful death lawsuits.
Ready to speak with a personal injury attorney? Contact Coastal Law to discuss your case. Call us at 843-488-5000 for a free consultation or use our online form.