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A new entrant to the New Jersey state court bench is being asked to decide a case that pits a corporation’s right to guard trade secrets against a watchdog organization’s assertion of the public’s right to know about dangers inherent in products. Superior Court Judge Jack Sabatino heard arguments in Trenton last Tuesday on a motion by Consumers for Auto Reliability and Safety to unseal 30 discovery documents in a suit charging that defective Goodyear tires caused the crash of an Air Force vehicle in Saudi Arabia in 1997, killing three people. CARS, a Sacramento, Calif.-based nonprofit consumer advocacy organization, intervened in Frankl v. Goodyear, MER-L-003052-99, in order to make public information about Goodyear Load Range E tires, the subject of investigation by the National Highway Traffic Safety Administration. Goodyear Tire and Rubber Co., which claims the tires are not defective and did not cause the crash, secured a protective order in August 2000 against the release of any documents produced in the litigation. Last November, CARS asked that the order to be lifted and sent follow-up letters in May and June seeking a hearing. The prior judge in the case, Neil Shuster, took no action. In August, he was transferred to the Chancery Division. Sabatino, a former professor at Rutgers School of Law-Camden appointed to the bench in April, scheduled a hearing only a couple of weeks after getting the case. “We wish we had had a hearing earlier but we were happy that Judge Sabatino took up the case shortly after inheriting it,” says CARS’ lawyer Rebecca Epstein, a staff attorney for Trial Lawyers for Public Justice, of Washington, D.C. Epstein says the Frankl suit has attracted nationwide attention because its protective order is binding on discovery documents in a handful of other suits filed elsewhere concerning the Goodyear Load Range E tires. “We’re hoping to show Goodyear that they can’t continue to use the law this way,” she says. The Mercer County suit was brought by Garry Sitze, who was injured in the rollover crash of the GMC Suburban military vehicle, and survivors of two people killed in the crash, Robert Frankl and Karen Budian. The named defendants are Goodyear, General Motors and two automotive component makers, Hutchinson Industries of Trenton, N.J., and Hayes Lemmerz of Northville, Mich. Goodyear attorney Robert Kelly argued last Tuesday that CARS has no standing to ask that the documents be unsealed. Epstein responded that a party need not share a common interest with the plaintiffs to intervene. She cited Hammock by Hammock v. Hoffmann-LaRoche Inc., 142 N.J. 356 (1995), a products liability case in which the New Jersey Supreme Court adopted standards that recognized a strong presumption in favor of public access. Kelly also claimed that CARS made its request too late, and noted that the plaintiffs are nearing a settlement with Goodyear and the other defendants. Sabatino asked Epstein: “Do you have a perpetual right to come in? Could you come in five years later?” “If the protective order is still standing, yes,” she responded. Epstein argued that the court should not impose blanket protective orders, as Shuster did, but should evaluate the merits of shielding each document. Epstein’s co-counsel, Christopher Placitella, added that the court should be more reluctant to impose such orders in cases where public safety or health is at risk. New Jersey’s mass tort judge, Marina Corodemus, does not sign mass protective orders despite the volume of cases she hears, said Placitella, a partner at Wilentz, Goldman & Spitzer in Woodbridge, N.J. An amicus on Goodyear’s side, the Washington Legal Foundation, cited a 1994 federal ruling that document-by-document determination of confidentiality is impractical. “[B]ecause of the benefits of umbrella protective orders in cases involving large-scale discovery, the court may construct a broad umbrella protective order upon a threshold showing by the movant of good cause,” the 3rd U.S. Circuit Court of Appeals ruled in Pansy v. Borough of Stroudsburg, 23 F.3d 772. The foundation also said lifting a protective order may impose a taking on Goodyear under the Fifth Amendment. The Frankl plaintiffs are represented by Christine Spagnoli, a partner at Greene, Broillet, Taylor, Wheeler & Panish in Santa Monica, Calif., and Dennis Donnelly, a partner at Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham, N.J. Spagnoli was out of her office last week and could not be reached; Donnelly said he could not comment on the Frankl case. The Los Angeles Times reported on Oct. 25, 2000, that another client of Spagnoli’s, Los Angeles police officer Brian Matthews, was paid $7.9 million to settle a suit against Goodyear and General Motors over a rollover accident. Matthews was left a paraplegic from that accident, which involved the same model of vehicle and the same type of tires as in Frankl. A group of media organizations that had filed motions to unseal the documents, including the Los Angeles Times, The Associated Press and Bloomberg News, withdrew their motions last month. The local counsel for the Los Angeles Times and The Associated Press, Kenneth Moskowitz of Brown & Moskowitz in Union, N.J., declined to comment on reasons for the withdrawal. He referred questions to Marc Becker of Munger, Tolles & Olson in Los Angeles, who did not return a phone call. Epstein said it was her understanding that the media withdrew the motion because they are devoting their attention to the terrorist attacks of Sept. 11.

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