More on the proposed Sunshine in Litigation Act

We've been covering this story lately and I wanted to offer links to a USA Today editorial in favor of the litigation as well as an op-ed opposing it. (USA Today typically offers opposing op-eds to its own editorials.) Thanks to Richard Zitrin for sending it along. Richard's letter to the editor is below the fold.

My two cents on the issue is that it should be worked out as a matter of legislation rather than trying to control the issue via the legal ethics rules.

To the Editor [from Richad Zitrin]:

Your editorial in support of openness in litigation is right on the money.  As you note, GM itself paid out half a billion dollars in truck gas-tank-fire cases.  But when a federal court ordered that information released in 2003, it covered settlements only through 1998.  One wonders how many other secret settlements were not revealed.

Incredibly, however, Victor Schwartz’s response has almost all its facts wrong:

1.  “SILA” would not “take away judges’ discretion.” Section (a)(1) of the act sets up a procedure for judges to make findings that would protect trade secrets.
2. The public will not “ know information about [victims’] personal lives.”  Section (d) specifically protects “personally identifiable information relating to financial, health or other similar information of an individual.”
3. Schwartz writes that defendants don’t “want to disclose the amount of money they paid plaintiffs.” But the legislation, section (c)(1)(A), specifically exempts “the amount of money paid” from disclosure. It’s the information, not the money, that the public cares about.
4. Schwartz cites a “study by the Federal Judicial Center” that implies there’s really no problem here. But that study, from 2004, only counted settlements sealed with court approval, not the thousands of secret settlements that a court never hears about because the parties settle without court involvement.  A 2004 South Carolina symposium exploded the FJC study myth a decade ago.

Mr. Schwartz’ piece makes me think he either never read the legislation, or didn’t care at all about accuracy.  It’s worth noting that his firm, Shook Hardy, was Big Tobacco’s go-to firm during the decades the tobacco companies hid their own research proving cigarettes caused cancer behind a veil of secrecy.