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The best way to keep a secret may not be to ask a judge to rule on it. That’s a lesson Goodyear Tire & Rubber Co. may be bouncing around a while, depending on how New Jersey’s Supreme Court rules.

Last Tuesday, justices hearing a case with national ramifications signaled that the very act of obtaining a protective order might morph discovery documents into judicial ones – and subject their confidentiality to greater scrutiny.

The tussle is over a protective order covering 31 documents that Goodyear produced in a product liability case, Estate of Frankl v. Goodyear Tire & Rubber Co., A-52-03. A public interest group – Consumers for Auto Reliability and Safety – seeks to intervene to lift the veil of secrecy, even though the plaintiffs and Goodyear settled the case before trial. CARS argues that the documents contain information relating to the safety of a Goodyear tire that allegedly caused the deaths of two people in 1997.

So far, CARS has lost for lack of standing, but on the flip side is R. 4:10-3, which provides for a presumptive right of access to discovery documents in civil cases. In Hammock v. Hoffman-LaRoche Inc., 142 N.J. 356 (1995), the Court required trial judges to make careful and express findings when ruling that the presumption is outweighed by a need for secrecy, such as proprietary rights.

Plus, in this case, public safety weighs in the balance. Between CARS’ intervenor motion and Superior Court Judge Jack Sabatino’s protective order, the National Highway Transportation Safety Authority completed an investigation of the relevant tire – the Long Range E – and found that 18 people had been killed and 158 injured in 87 crashes where the tire’s body separated from its tread belt.

Last Tuesday, lawyers on both sides acknowledged that several hundred suits across the country over the Long Range E are pending or have settled. They agree that the Court’s ruling will have an effect on whether the plaintiffs in those cases, all of whom were provided the internal documents but who agreed to secrecy, can release them if they wish.

At the outset of the arguments, the justices seemed confused by the technical limits of the protective order. Justices Virginia Long and Justice Jaynee LaVecchia questioned why the order applied to discovery documents not filed with the court and why CARS should have access to anything but the court file.

CARS’ lawyer, Rebecca Epstein, a staff attorney with the Washington, D.C.-based Trial Lawyers for Public Justice, explained that the protective order by its terms applied to 31 internal documents that Goodyear had deemed sensitive.

Next came questioning on CARS’ standing to intervene, especially in view of the case having been settled and the parties having no interest in publicity.

“The parties have agreed to not disclose the documents,” Justice John Wallace Jr. said. “Why not end the case?”

Justice Peter Verniero added, “The court’s out of the picture now.”

Epstein said that the case hinges in large part on the Court’s interpretation of R. 4:10-3′s presumption of access. CARS moved to intervene before the settlement was reached, which means the controversy lives on, she said. At the very least, she continued, Goodyear should be required to show why there is “good cause” for the documents to be sealed, rather than merely ask a judge to rubber stamp its request.

When his turn came, Goodyear lawyer George Rooney Jr. said the internal documents – though dealing primarily with consumer complaints about the Long Range E – contain proprietary information vital to Goodyear’s interests.

Justice James Zazzali, citing CARS’ argument, asked why the documents should not become public if “this information may save life and limbs.”

Rooney replied that public safety is not at issue. “Goodyear made 21 million tires and there were 87 incidents. This suggests no widespread manufacturing defect and no court ever declared a defect in these tires,” said Rooney, a partner at Cleveland’s Roetzel & Andress.

Chief Justice Deborah Poritz then suggested Goodyear may have overreached by asking Sabatino to consent to the secrecy order instead of reaching a private agreement with the plaintiffs.

“Here, the parties did both. They did it in private and then invoked the court’s power. Do we have a different matter now? Does [the court's] stamp of approval change in the picture as a matter of law?”

Rooney said no. “The purpose of getting a consent order is so the court can monitor it,” he said.

Added Verniero: “This is not a clean case from any perspective. What are you asking out of this case?”

“We would like you to extend the ruling in Hammock to hold that, as you did back then, that there continues to be confidentiality of documents in the discovery process,” Rooney replied. “If [CARS] gets their way, there will be no distinguishing between judicial documents and discovery documents.”

But Verniero and Wallace indicated that once Sabatino signed the protective order, they may have become judicial.

Poritz agreed. “It sounds like a judicial document once you get judicial imprimatur,” she said.

Verniero asked Rooney whether the protective order should be rescinded if public safety is a legitimate issue.

“Where is this going to stop?” he replied. “Litigation is going to grind to a halt. Parties uttering the word ‘safety’ should not stand the world on end.”

Justice Barry Albin did not participate in the arguments. At one point during the litigation, CARS was represented by Christopher Placitella, a partner at Woodbridge’s Wilentz, Goldman & Spitzer where Albin was a partner.

Cliffhanger Ending – The case of Aversano v. Palisades Interstate Parkway Commission, A-54-03, tests whether the parents of a man who died in a 300-foot fall from a Palisades cliff can sue over alleged negligence of parkway commission police, who waited hours before mounting what they believed to be a recovery rather than a rescue.

The police thought Andrew Aversano, 19, could not have survived the fall, but he was alive when they found him. He died a short while later.

The Appellate Division ruled 2-1 in the family’s favor, deciding that the suit was permissible under the Tort Claims Act, N.J.S.A. 59:4-8.

Last Monday, Deputy Attorney General Karen Jordan argued that it is unworkable to charge the parkway commission with such a standard of care. “It would be cost prohibitive to make these properties safe,” Jordan said. “The risk should remain with Aversano,” she said. “Immunity trumps liability.”

Justice Albin asked whether the officers had a duty, at least to throw a rope down before heading back to headquarters to determine what course to follow.

Jordan answered that the officers had a legitimate belief Aversano was dead and that there were safety concerns about letting an officer rappel down the cliff. Also, a fire trail at the base of the cliff was blocked by a fallen tree, which further delayed any rescue or recovery attempt.

The family’s lawyer downplayed the suggestion that ruling in his favor would lead to widespread closure of public lands. “The defendants did not pursue a rescue until three hours after receiving the call,” said Richard Ulsamer, of Tompkins, McGuire, Wachenfeld & Barry in Newark. “For failing to follow standard operating procedures, Andrew died.”

When Albin asked why the police and the commission should be held liable because Aversano took the risk of climbing out on to the cliff, Ulsamer responded, “Not to be flippant, but why is the police department there?”

Crapshoot – Is it sexual discrimination to deny a female casino worker a promotion just because she’s not certified to supervise craps games?

The Appellate Division said no, so Evelyn Pilkington took her suit against Bally’s Park Place to the high Court, Pilkington v. Bally’s Park Place, A-50-03.

Her lawyer, Arlene Groch, argued that the case should be allowed to proceed because Bally’s earlier had promoted a male employee even though he did not know how to supervise baccarat and roulette. “Bally’s failed to prove any objective criteria” concerning promotions, said Groch, a Somers Point solo. “They were not communicated to the applicants. There needed to be some type of written policy.”

The dispute came about the time the Casino Control Commission repealed a regulation that shift supervisors must have a “knowledge of all games.” The male employee was promoted before the regulation was withdrawn.

Pilkington had been a craps croupier in Las Vegas years earlier, and Poritz noted that she had received positive job reviews from Bally’s.

Bally’s lawyer, David Garland, a partner at Newark’s Sills Cummis Epstein & Gross, said the earlier promotion was an honest mistake that, once discovered, was corrected: The male employee was required to take baccarat and roulette courses before supervising those games.

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