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South Florida’s federal district court judges will gather today and consider whether to join South Carolina’s federal judges in banning secret settlements in civil lawsuits, a move strongly opposed by the insurance industry. A drumbeat of publicity has dogged the nation’s courts all year long about sealed agreements and documents that, if they hadn’t been hidden away, might have sounded early alarms about pedophile priests, bad doctors and dangerous consumer products. The longest-serving member on Miami’s federal bench, Senior U.S. District Judge James Lawrence King, recently served notice of his concerns in a strongly worded order declaring his unwillingness “to go routinely along” with requests for secrecy by litigants. William J. Zloch, chief judge of the U.S. District Court for the Southern District of Florida, has asked King to lead today’s discussion. King’s order came in a run-of-the mill age discrimination suit filed by four workers against Hialeah, Fla.’s Blue Ribbon Meats Inc. Both sides had sought a protective order “to facilitate discovery.” King rejected their request after noting the litigants had “failed to assert any reason” that might necessitate a confidentiality order. “The court recognizes that the bar, over the past few years, drifted into a practice of routinely seeking to keep litigation confidential from the public,” King’s order says. “Courts have, somewhat routinely, acceded to a joint request to seal a file. It is time to review this practice and conduct the balancing test required to determine whether or not the parties’ private interest in confidentiality outweighs the public’s right to access in open judicial proceedings.” South Carolina’s 10 U.S. District Court judges voted unanimously in July to amend the local court rules to prohibit judges from sealing settlement agreements. A final vote will come following a period of public comment that ends Sept. 30. Unlike in South Carolina, no specific reform proposal is before the judges in Florida. But today’s discussion, during the quarterly judges meeting, will mark the first time the judges have collectively looked at the controversy about confidential settlements, says Court Clerk Clarence Maddox. King said in an interview that he has agreed to Zloch’s request to lead the discussion. “The requests for sealing I have seen are coming in with increasing frequency,” he says. “They seem to come mostly from the large law firms, with large corporate clients. It seems to be almost a knee-jerk reaction from the lawyers now.” Zloch does not grant media interviews and referred written and oral requests for comment to Maddox. Maddox said Zloch did not respond to relayed questions regarding his position on the matter. SIGNING WITHOUT THINKING Rules adopted by the federal court in South Florida over the last two years establish procedures for parties seeking to file matters under seal. The rules require those seeking a secrecy order to state a “reasonable basis” for it. But the flood of cases has kept that requirement largely underwater. “I would put it that our busy judges here all too frequently do as I have done many times, and that is look at an agreed motion with an agreed [proposed] order as something that is awfully simple and easy to sign and grant,” King says. “It’s something you do without thinking it through all the way.” The nation’s insurers, who pay many court settlements, oppose the South Carolina federal judges’ proposal of a blanket ban on sealed settlements. Joyce E. Kraeger, a staff attorney at the Alliance of American Insurers in Downers Grove, Ill., says disclosing settlement amounts creates a bull’s-eye for plaintiffs’ lawyers, driving up future litigation costs. In addition, a ban on secrecy will make settlements more difficult to reach, further clogging court dockets, she contends. “If confidentiality is going to be taken out of the equation, maybe a company would want to take their chances in litigation,” Kraeger says. “It’s not going to be confidential either way.” But Florida and 15 other states have laws declaring that court information generally should be publicly available. Florida’s Sunshine in Litigation Act forbids state judges from entering an order or judgment “which has the purpose or effect of concealing a public hazard” or preventing the public from protecting itself from injury. The law contains a specific exemption for trade secrets “which are not pertinent to public hazards.” “It’s been wonderful since we’ve had that law,” says Miami attorney Larry S. Stewart, a former president of the Association of Trial Lawyers of America, which opposes secrecy in the courts. “When somebody wants to sweep something under the rug with a confidential settlement we can say, you can’t do that in Florida.” “I’ve not heard of a single instance where a settlement didn’t happen because of this,” says Stewart, a senior partner in Miami’s Stewart Tilghman Fox & Bianchi. “This is not a big deal anymore, which shows that the real motivation behind these confidential settlements is simply to hide information from the public.” King’s June 21 order in the Blue Ribbon Meats case was more specific than the South Carolina judicial proposal. But it potentially poses a broader challenge to courthouse secrecy by taking issue with secrecy at every stage of litigation. The order denied a joint motion by plaintiffs and defendants that sought, at the start of the litigation, to seal the court file. Both sides wanted King’s blanket approval to seal any information that they “in good faith” deemed confidential, court papers say. King rejected their request after noting the litigants had “failed to assert any reason” that might necessitate a confidentiality order. “The courts of America are free and open to the public, and the founding fathers intended that American courts would no longer conduct ‘star chamber’ proceedings,” wrote King, who became a federal judge in 1970. “Recognizing, of course, that there are some instances where there may be trade secrets or patented private information that mandate confidentiality.” In an interview, the judge expanded on his position. King says he believes such instances should be rare. “Absent something extraordinary, like somebody is going to get killed or someone has a patent pending, matters should be open,” King says. “It can’t just be because a bunch of wealthy CEOs wants us to do it because they want to conduct their litigation in secret.” ADMINISTRATIVE BURDEN King notes that a side effect of the frequent granting of secrecy requests is a “tremendous administrative problem” caused by a crush of sealed files and documents that must be maintained by the court clerk’s office. “A heavy burden is placed upon everyone connected with the maintenance of the public records to seal files,” King wrote in his order. “Sealed docketing is a separate and additional procedure, the filing and maintenance [of documents] in a vault in red secure envelopes is an additional procedure and the preparation for the Court of Appeals of the record has to be submitted in such a way as to not identify or disclose any information contained in the pleadings.” Court Clerk Maddox declined to comment on King’s observations. King seems ready to make the case for more openness to his colleagues. “My belief all these 32 years as a federal judge is that we run an open court — and the more open, the better,” he says. In recent weeks, the judge has turned aside several additional requests for protective orders, sometimes to the surprise of litigants. “When I have hearings on this, the lawyers just look at me as a senile old judge who’s lost his mind again, because they have agreed on this,” King says. “The problem is, it’s the public’s business.” Still, don’t expect any live news coverage of today’s judicial debate. Those quarterly judges’ meetings aren’t open to the public.

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