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A federal judge has said he will rule early next week on media requests to unseal documents in a product liability case that Firestone Tire Co. settled last year in Georgia. The case pits the public’s interest in knowing more about Firestone tire failures against the agreement of attorneys on both sides to seal discovery documents. It would be unusual for the court to unseal the documents. Corporate defendants routinely get plaintiffs to agree to seal discovery as part of settlement agreements. Firestone argues that opening the files would reveal trade secrets. But one of the lawyers who agreed to the seal says the documents would embarrass the company by contradicting testimony that its executives made before Congress. Lawyers for the Washington Post, CBS, the Los Angeles Times and the Chicago Tribune appeared before U.S. District Court Judge Anthony A. Alaimo on Monday, seeking access to the documents filed during litigation over a 1997 fatal crash of a Ford Explorer. “There are people out on the road who are interested and need to know” the information in those documents, Arnall, Golden & Gregory’s Robert L. Rothman argued, representing the Tribune and the Times. Speaking for CBS and the Post, Mary-Rose Papandrea of Washington’s Williams & Connolly told the judge that Firestone had shown no compelling reason to keep the documents secret. “Our position is that as soon as they are filed with the court, the right of access attaches,” she said. Firestone lawyer Lisa Godbey Wood of Brunswick’s Gilbert, Harrell, Gilbert, Sumerford, Martin & Gregg, was alone in opposing the press’ motions. A Ford lawyer indicated he did not object to releasing the documents. Wood insisted that the documents contained proprietary information — commercial and technical trade secrets that the tire maker should be allowed to keep confidential. The Florida Attorney General’s office joined in the media lawyers’ motions. A lawyer from the Georgia Office of Consumer Affairs, who said his office has issued investigative demands to Ford and Firestone for records related to the tire failures, attended the proceedings. At issue in Monday’s hearing were documents filed in connection with summary judgment motions in the case of Daniel Paul Van Etten. Van Etten, a 19-year-old freshman on the University of West Virginia football team, was killed in an accident on I-95 in Camden County. He was driving a Ford Explorer when the tread of the vehicle’s left rear Firestone radial ATX separated from the rest of the tire. The teen was thrown from the car and died of blunt head trauma. A Statesboro, Ga., firm filed suit on behalf of the Van Etten family, alleging that Ford and Firestone were negligent in the design and manufacture of the Explorer and the tires. James B. Franklin, Daniel B. Snipes and Rowe Brogdon of Franklin, Taulbee, Rushing, Brogdon, Snipes & Marsh settled the case. The amount of the settlement is confidential. Van Etten v. Bridgestone/Firestone, No. CV298-069 (S. D. Ga. April 2, 1998). A protective order agreed to at the beginning of the discovery period by the Van Etten family’s lawyers and defense lawyers for Ford and Firestone required that certain information produced by the defendants should be kept confidential, and if filed in court must be filed under seal. The documents — just 15 of nearly 300 filed in the federal suit — include, according to Firestone, data and deposition testimony covering tire specifications, company-wide or plant-specific manufacturing rules, and tire adjustment data on problem tires returned by customers. Monday, a year after the Van Etten case settled and only weeks after Firestone’s Aug. 9 recall of 6.5 million tires, Alaimo agreed to consider whether that protective order should stand or yield to the public’s common law and First Amendment right of access to judicial proceedings. Wood contended that Firestone had produced highly sensitive documents in discovery while relying in good faith on the protective order. Protective agreements were necessary to expedite the exchange of information in discovery and to reduce discovery disputes, Wood argued. “This was not an umbrella overall sealing of public records,” Wood told Alaimo, nor an after-the-fact sealing of previously public records. “These documents were never part of the public record.” She offered to release some of the documents, but insisted that disclosure of others would reveal trade secret information to Firestone competitors and cause the company economic damage. The 11th Circuit, she pointed out, had upheld just such a protective order in an earlier case. In Alexander Grant & Co. litigation, 820 F.2d 352 (11th Cir. 1987), the 11th Circuit found no First Amendment or common law right of access could overrule a valid protective order, Godbey argued. That case involved 20 securities suits that had been consolidated for purposes of discovery. The Fort Lauderdale News & Sun Sentinel challenged the protective order governing discovery material, arguing that it was a prior restraint on the public’s access to court information. The 11th Circuit denied the newspaper’s challenge. Did the protective order contain specific findings of the reasons behind the need for confidentiality? Alaimo wanted to know. Wood said the purpose of the hearing was to bolster the reasons behind the agreement. But several times during the hearing, Alaimo indicated he thought the lack of specific findings in the protective order made it an invalid order. “Would the fact that the material has some reference to public safety make any difference?” the judge asked Wood. The Firestone lawyer said the documents didn’t relate to public safety or the integrity of the tires. Rothman, however, argued that Wood’s offer to release some of the documents shows that Firestone abused the protective order. But for the media’s efforts, he said, that material would still be sealed. Firestone must produce particular evidence that the documents constitute trade secrets, he told Alaimo, but the company has not done so. General statements such as “Our competitors are going to be interested in this” won’t suffice when weighed against the public’s interest in its safety, he said. Papandrea said her media clients were particularly interested in the tire adjustment data, which contain reports from tire dealers on customer returns. Those reports have been hotly disputed in Georgia tire cases. The Georgia Supreme Court heard arguments Monday in a case that asked whether the adjustment records of a tire manufacturer were properly excluded from evidence. Cooper Tire and Rubber Co. v. Crosby No. S00G0490 (Sup. Ct. Ga. argued Sept. 18, 2000). A Florida assistant attorney general, Keith P. Vanden Dooren, said he had joined in the media’s motions because his office was concerned about Florida citizens’ safety. According to the National Highway Traffic and Safety Administration, Florida has had the second-highest number of complaints involving defective tires, he told Alaimo. Franklin, the Van Ettens’ lawyer, told Alaimo the plaintiffs had no objection to releasing the documents. Wasn’t it unfair for him to take that position now after agreeing to the protective order previously? the judge asked. Franklin, Alaimo added, wouldn’t have been able to get the kind of settlement he did without such an agreement. Franklin said he was not making the motion to void the protective order, adding that he just had no objection. He said that he didn’t think there was a smoking gun in the sealed papers. So why had he agreed to the protective order? Alaimo asked. He needed access to all information for his client’s case, Franklin said. But Franklin’s partner Brogdon, who had handled the tire part of the Van Etten case, told Alaimo the sealed documents were not trade secrets. Instead, he said, they contained “matters that would be embarrassing” and would conflict with Firestone executives’ recent testimony before Congress. “One problem, Mr. Brogdon, is that you agreed to it and now you’re reneging,” Alaimo said. Brogdon said the nature of documents sometimes changes over time. But he insisted that “I know what’s in there and I know why they don’t want it made public.”

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