FREE Consultation (866) 848-7077

Judicial secrecy regarding consumer product safety complaint challenged


Posted on behalf of Michael D'Amico of D'Amico & Pettinicchi, LLC on Nov 01, 2013 in Product Liability

The Kansas City Star reports on an appeal by consumer and media organizations in the United States Court of Appeals for the Fourth Circuit (one of twelve regional appellate courts within the federal judicial system) related to a product safety and business confidentiality dispute "cloaked in extraordinary secrecy."

In response to a complaint filed on the Consumer Product Safety Commission website, the company targeted therein responded by instituting a lawsuit in federal court on the grounds that the complaint was inaccurate and would harm its reputation.  The company sued the CPSC to keep the report about one of its products from being published in the database.

The company also sought to litigate its case under seal and without revealing its true name!  When such a motion to seal is filed, the court is required to publish notification to the public that this type of relief is being sought in order to provide the public with an opportunity to be heard on the issue.  Consumer groups objected, as did the CPSC, but the district court (Hon. Alexander Williams, Jr.) did not rule on the motion for nine months.  In the interim, the court conducted secret proceedings on the merits.

Then at the end of July 2012, without releasing its opinion to the public, the court granted summary judgment to "Company Doe" and granted the company's motions to seal the case, proceed pseudonymously and for summary judgment. Three months later that decision was made available to the public but with the name of the plaintiff, the facts of the case, and the court's application of law to facts redacted.  The consumer and media groups have appealed the rulings on the motions to seal and to proceed under a pseudonym.  Those rulings are being considered by a three-judge panel of the 4th Circuit.  (For reasons it hasn't disclosed the CPSC decided not to appeal the lower court's ruling blocking the posting of the company and allowing the company to remain anonymous.  Unfortunately, this arouses suspicion that the reason is because that agency, which was originally intended to protect consumers has again been influenced, if not co-opted by industry, to protect industry's interests. See, for instance, this 2007 article from the Washington Post)

It is an important case concerning judicial secrecy, which, with limited exception, is a dangerous and un-American concept.   

A decision is expected within the next few months.

The presumption of public access to judicial documents, meaning any document filed with the court that the court could reasonably rely on in support of its adjudicatory function in fundamental to the American system of justice. See Rosado v. Bridgeport Catholic Diocesan Corp., 292 Conn. 1, 30 cert. denied sub. nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991 (2009). The public has a right to know what is being done in its name. 

With certain very limited exceptions, each step of the federal judicial process is open to the public. Federal courthouses are designed to inspire in the public a respect for the tradition and purpose of the American judicial process, and many courthouses are historic buildings.

In fact, a manual about the federal court system published by the Federal Judicial Center notes:

"A citizen who wishes to observe a court in session may go to a federal courthouse, check the court calendar, which is posted on a bulletin board or television monitor, and watch any proceeding. Anyone may review the file and papers in a case by going to the clerk of court's office and asking to review or copy the appropriate case file."

Hopefully, the U.S. Court of Appeals for the Fourth Circuit will affirm this important principle in the matter of Company Doe v. Public Citizen, et al. (No. 12-2209).