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Gary J. Leshaw once sued an automobile dealer after it sold a car that stalled going 60-plus mph on the freeway. “Fortunately, no one was hurt,” the DeKalb County, Ga., magistrate and consumer lawyer told the state House Judiciary Committee Jan. 6. The dealership settled the suit after admitting it had tried unsuccessfully to fix the car eight times, Leshaw said. The dealership tried to push Leshaw into keeping the case details secret. That happens all too often, Leshaw told legislators. “When it deals with the public welfare, it shouldn’t be secret,” said Leshaw, who urged Rep. Mary Margaret Oliver to introduce the proposed “Sunshine in Litigation Act.” The bill would allow judges to seal discovery documents or settlements only after determining that secrecy wouldn’t harm “public health, welfare or safety.” HB 1019 also would give the news media standing to contest an order to seal information in civil cases. To seal the documents, the burden of proof would fall on the party moving for secrecy, according to the bill. “I brought this bill forward because I’m generally interested in whether people think it’s a good idea or a bad idea,” Oliver said Jan. 6 at the pre-session meeting. Business groups let Oliver know they think the bill is a bad idea. They said it would force more cases into expensive trials and that some disclosed documents would be more useful for embarrassing defendants than for protecting the public. TREND TOWARD SECRECY Proponents said the bill would reverse partially a dangerous trend toward secrecy in government and the courts. Two states, Florida and California, have adopted similar proposals, and a South Carolina judge recently issued an order incorporating some of what Oliver is proposing, according to Oliver, a Democratic lawyer from Decatur. In 1994, a similar federal measure in the U.S. Senate lost 51-49, Oliver said. The problem with the bill, opponents said, is that parties may stop settling cases if they know the records will become public. Defendants often pay to settle so-called nuisance suits, the bill’s detractors pointed out, but that doesn’t mean they admit guilt. Making the settlements public could ruin defendants’ reputations and bog down the trial system, opponents said. Rep. Thomas C. Bordeaux Jr., D-Savannah, chairman of the committee and a personal injury lawyer, asked a question that’s at the core of the debate: Doesn’t the public have the right to know the result of cases settled using the publicly financed judicial system? No, said Arthur B. “Skin” Edge IV, a lawyer who lobbies for the Georgia Chamber of Commerce. Not if the disclosure of that information means ruining a company’s or doctor’s reputation, disclosing trade secrets or making public allegations that, while not necessarily true, were dealt with more easily through settlement than through a public trial. “The rights to privacy and contracts are constitutionally protected rights that would be infringed upon by this legislation,” he said. The Chamber of Commerce opposes the bill, Edge said. The bill would impede settlements that “avoid trials that no one wants,” he added. Edge offered an example in which a plaintiff would want secrecy. “I represented a client accused of shoplifting,” he said. After the case was settled, “she was glad to have it kept secret — from kinfolks who would come asking for money and for the notoriety,” said Edge, a former state senator. He added that the bill’s language, which would require disclosure of information “relevant” to public safety, is too broad. “You could argue that anything is relevant,” he said. He also wanted to put the burden of proof on the party moving to open the sealed documents. Giving the media standing puts a “difficult burden” on the other parties, he said. But Rep. Roger B. Bruce, D-Atlanta, asked Edge if nondisclosure of a public hazard could leave a business open to further liability. Edge said it could make the business open to punishment, but confidentiality makes liability more difficult to prove. Bruce pressed him further. Isn’t it a business’s responsibility to disclose certain things, even if they’re not violating the law? he asked. Edge replied, “My experience is that the vast majority of companies will disclose [safety hazards],” as a moral and ethical obligation, and to avoid further liability. Bordeaux, however, seemed sympathetic to the bill. “When both sides agree [to secrecy], they are looking out for their own interests. Who is looking out for the public interest?” he asked. “They’ve taken advantage of the publicly financed judicial system to secretly settle. … Doesn’t that give taxpayers a real interest in this?” Edge countered, “It’s also encouraging more use of taxpayer money by making it harder to settle cases.” Bordeaux then asked, “Is it our goal to settle cases? I realize judicial economy and all that, but what if someone is wrongly accused but pays $6 million to settle it?” Said Edge, “But they don’t have to [settle]. That’s a private decision.” Bordeaux later added that some of these cases should be tried, “instead of hiding them under the rug.” ‘CHILLING EFFECT ON SETTLEMENTS’ Joseph L. Cregan, a lawyer with Morris, Manning & Martin, and his client, Matt Mitcham, senior vice president for claims at MAG Mutual Insurance Group, spoke against the bill. Cregan declared the bill would have a “devastating effect on the business community” and a “chilling effect on settlements. “Courts would turn from being adjudicators to being information agencies,” he warned. People have begun litigating over foods that make them fat, he said. Could that leave Coca Cola’s formula, secret for more than 100 years, open to disclosure? he wondered. All of these things impact public safety, health and welfare, he said, but that’s a “very difficult standard to apply in the real world.” Mitcham chimed in, adding that secret settlements are a way “to protect physicians’ reputations. Confidentiality is the cornerstone of the settlement process. We settle on behalf of the doctor, both to resolve [the matter] and so that the doctor’s name isn’t in the local paper,” he said, which would “devastate” a doctor’s practice. PUBLIC VS. PRIVATE ENTITIES Public versus private entities also became a focus of the panel’s debate. Tom Bennett, an Atlanta Journal-Constitution news administration writer and editor and a board member of the Atlanta chapter of the Society of Professional Journalists, asked the committee to strengthen access to information that promotes public safety and welfare. “I urge the committee to reverse the trend toward secrecy in our state in every way you can,” said Bennett. He supported banning public entities from making confidential settlements, which five states already have done. He wouldn’t comment on whether private companies should be able to make secret agreements, though committee members pushed him to take a position. Bennett said: “The General Assembly’s next exception to open government will be your 150th. There is a presumption that everything is open. As you consider that [bill], please don’t harm that.” Bordeaux said the committee could take action on the bill after the session starts today.

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