Federal judges here have been asked to set up a special court mechanism to tell the public when the parties in a case want court documents to be kept secret.
The proposal -- which would notify the public that such secrecy has been requested -- is being circulated among U.S. District Court judges here and will be discussed at their next meeting, according to U.S. District Chief Judge William B. Bryant.
The proposal was made by the Public Citizen Litigaton Group, the legal arm of Ralph Nader's organizations, because, it said, the "problem (of secret court records) has arisen with increasing frequency both in the District of Columbia and eslewhere."
Lawyers in civil lawsuits sometimes agree among themselves that certain material will be kept secret as a part of a settlement of a suit. For example, they may agree that the actual amount of the settlement be kept from the public or that certain evidence obtained during the course of the lawsuit be returned to them without being placed on the public record.
The secret agreements, which often must be approved by a judge, usually occur in product liability, personal injury, antitrust and employment discrimination cases. Victorious attorneys usually agree to keep the information secret if it assures their clients will get more money; judges usually accept the agreements because they clear cases off the docket.
In one recent criminal case involving the Westinghouse Electric Corp. for instance, the government asked that ceratain portions of the plea agreement -- the names of countries that had received illegal payoffs -- be kept secret as a condition of the plea. But the U.S. judge handling the case said the plea couldn't be made unless all of the agreement was made public.
The Nader group contends in its proposal that agreements to close certain court records and secretly settle cases are against the public interest, and that representatives of the public should be allowed to argue that point before a judge rules on the agreements.
The proposal comes at a time when a new court rule recommended by the U.S. Judicial Conference, which is headed by Chief Justice Warren Burger, would allow an unprecedented number of pretrial documents taken under a court's direction to be kept secret.
The rule change, which takes effect Aug. 1 unless Congress specifically rejects it, would represent a drastic shift in the way documents are placed on the court record in civil lawsuits. Pretrials materials might never become part of the public court record if one party to the suit or the judge requested it not be.
The Nader group's letter was focused on a separate but similar issue that already exists -- secret agreements between attorneys that are made as a case progresses or is settled.
Denver Graham, a Washington area attorney who specializes in defending personal injury and malpractice cases, said such agreements are made to prevent adverse publicity for the losing client.
Clarence Ditlow, of Nader's Center for Auto Safety, said his group "runs into the problem all the time in automobile litigation." He cited a case involving a Corvair heater in which the attorney agreed to turn over court documents, agreed never to discuss the case, and agreed even to amend the wording of his original lawsuit in return for a six-figure settlement for his client.
The secrecy agreements present problems for other attorneys in similar cases, who may never become aware of the incriminating evidence that forced the settlement and would be applicable in their cases, Ditlow said.
In addition, he said the material gathered in lawsuits is used by public interest groups like his to support attempts to get nationwide recalls of vehicles that have recurring problems.
Under the proposal by the Public Interest Litigation group, anyone requesting a secrecy agreement would have to publish that fact in a daily Washington law journal. The notice would briefly identify the nature of the case and the documents or information that the secrecy agreement would cover. The public would be given at least 15 days to comment.
A court could agree to a secrecy request before public notice is given, but only when it found that it was in the public interest to do so -- and explained why.
The letter, signed by Nader attorneys William B. Schultz, Alan B. Morrison and John Cary Sims, said the proposal would give the court an "opportunity" to "take the lead in dealing with what we perceive as a growing problem."