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Documents provided in discovery, even if they relate to product safety, are not accessible by the public if not part of a court file, New Jersey’s Appellate Division ruled Sept. 16 in a closely watched suit against Goodyear Tire & Rubber Co. The judges overturned trial court orders that gave a consumer advocacy group the right to see material that Goodyear had provided in pretrial discovery. The suit, lodged by the estates of two people killed in an accident said to have been caused by a faulty tire’s blowout, settled before trial, but not before Consumers for Auto Reliability and Safety intervened. Upon CARS’ motion, Superior Court Judge Jack Sabatino partially reversed his earlier protective order and allowed the group access to all or part of 14 of 31 records detailing customer complaints about the tire — the Long Range E — saying the records held “historical clues.” Last week, the appellate court said the Mercer County, N.J. judge got it wrong. CARS, as intervenor, had no legal basis for access to the documents because they “remained in the private possession of litigation counsel, never becoming part of the court files, either by way of a nondiscovery pretrial motion or trial proceeding,” wrote Judges Erminie Conley, Philip Carchman and Harvey Weissbard in Frankl v. Goodyear, A-6473-01T3. While Sabatino’s original decision to enter the protective order is supported by the good cause criteria required under R.4:10-3, “his fundamental legal premise for access is not,” the court said. The appeals court, citing Hammock v. Hoffman-LaRoche Inc., 142 N.J. 356 (1995), found that the general presumption of public access to documents proffered in civil litigation is not absolute. “That presumption … does not apply to discovery motions … and may be overcome upon a demonstration that the ‘need for secrecy substantially outweighs the presumption of access,’” the judges wrote, citing Hammock. “‘[T]here continues to be confidentiality of materials submitted in the discovery process. The discovery delivered to plaintiff’s counsel under a protective order is not subject to public access as long as it remains in the private domain of plaintiff’s counsel.’ That is the situation here.” CARS’ lawyer, Christopher Placitella, says that the decision, though not for publication, sets a dangerous precedent. “This ruling allows documents that clearly indicate the public is at risk to be buried by confidentiality agreements. It’s very disconcerting,” says Placitella, a partner at Woodbridge’s Wilentz, Goldman & Spitzer. “Part of the problem with protective orders is that if dirty documents are produced and the case settles, those documents remain buried.” Before Sabatino ruled, the National Highway Transportation Safety Authority released results of an investigation that showed that 18 people had been killed and 158 injured in accidents where the tread belt separated from the body of the Long Range E. Goodyear’s attorney, Robert Kelly, says the ruling “protects the private exchange of information between people who have a disagreement.” “The general public does not have a right to that information,” adds Kelly, a partner at Philadelphia’s Kelly, McLaughlin, Foster, Bracaglia, Daly, Trabucco & White. “If every document is available to everybody, then we all lose our privacy.” Placitella, who says CARS has not decided whether to ask the state supreme court to hear the case, argued that under R. 4:10-3, there is a “presumptive statutory right” to discovery documents. “We reject this contention as entirely without basis,” the judges said. “Certainly there is nothing in the text of R. 4:10-3 which creates a presumptive right of access to unfiled discovery documents.” Placitella cited three federal cases — Leucadia Inc. v. Applied Extrusion Tech Inc., 998 F.2d 157 (3d Cir. 1993); Public Citizen v. Liggett Group Inc., 858 F.2d 775 (1st Cir. 1988); and Stinson, Lyons, Gerlin & Bustamante v. Prudential Ins. Co., 944 F.2d 1149 (3d Cir. 1991) — to support his position that discovery documents should be construed as available to the public. The appellate judges rejected that argument since Federal Rule of Civil Procedure 5(d) requires all discovery motions and responses be filed with the federal district courts. “In all three cases, then, a presumptive right of access existed in the documents because they were court filings,” the judges said. “In short, there presently exists no presumptive right of public access to unfiled documents exchanged during discovery in civil litigation,” they said. “In light of the parties’ settlement here prior to the filing of the documents, it is immaterial whether they may or may not have been the proper subject of a protective order.”

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