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The general public does not have guaranteed access to discovery documents used in litigation if they have not been filed with the trial court, the New Jersey Supreme Court ruled last week. “Despite the academic debate and state-by-state efforts by the Association of Trial Lawyers of America to obliterate the distinction between filed and unfiled documents in discovery, the distinction remains intact across the nation,” the justices held in Estate of Frankl v. Goodyear Tire & Rubber Co., A-52-03. The ruling is a setback for consumer groups that wanted to use the case as a way to allow the public to intervene in litigation and ask courts to decide whether good cause exists to issue a protective order putting documents under seal. A would-be intervenor in the case, Consumers for Auto Reliability and Safety (CARS), had hung its hopes on R. 4:10-3, which provides for a presumptive right of access to discovery documents in civil cases. CARS also looked to Hammock v. Hoffmann-La Roche Inc., 142 N.J. 356 (1995), in which the court required trial judges to make careful and express findings when ruling that the presumption is outweighed by a need for secrecy, such as proprietary rights. The dispute surrounds 31 documents placed under a protective order by a Mercer County, N.J., judge in a wrongful death suit against Goodyear Tire & Rubber Co. CARS argues that the documents contain information relating to the safety of the Goodyear Long Range E tire, alleged to have caused the deaths of two people in 1997. The National Transportation Safety Board found that 18 people had been killed and 158 injured in 87 crashes where the tire’s body separated from the tread belt. Goodyear supplied the documents to the Frankl estate but did not file them with the court. Judge Jack Sabatino agreed to place them under seal, and the Appellate Division refused to grant access to CARS. CARS and other amici in the case asserted that the court should, as a matter of public policy, extend the presumption of access to unfiled discovery documents in cases involving public hazards. The justices held, as did the Appellate Division, that R. 4:10-3 is not an independent source of entitlement to public access to discovery documents, but only a procedural device by which documents, otherwise accessible, can be protected. They further held that Hammock does not encompass both filed and unfiled documents However, recognizing that New Jersey court rules do not explicitly address discovery of unfiled documents, and that Hammock has been overread, the court referred the issue to its Civil Practice Committee “to address whether, going forward, we should maintain the position that unfiled discovery is insulated from forced public access or whether changes are warranted in that approach, and if so, what those changes should entail.” The committee could look at, but not be limited to, “[w]hether unfiled discovery should be immune from public access, presumptively immune, or accessible on the same terms as filed discovery; if accessible, how the burden of going forward and the burden of proof should be allocated; whether some refinement of the good cause standard is in order; and whether there should be some limitation on the public’s right of access after the settlement of a case.” The court noted that some legal scholars see a need to reconsider whether keeping unfiled discovery documents is in the public’s interest. The Court cited Harvard Law School Professor Arthur Miller’s treatise on the subject, “Confidentiality, Protective Orders, and Public Access to the Courts,” 105 Harv. L. Rev. 427 (1991), which outlined arguments on both sides. Miller said an argument for unrestricted access is that it would advance the public’s interest in health and safety, and improve the judiciary’s efficiency by avoiding duplication of discovery efforts. It also would eliminate the conflict created when an attorney must agree to confidentiality for the client’s benefit to the possible detriment that harmful information would be withheld from the public, Miller said. The arguments against a presumption of public access are possible invasion of litigants’ privacy rights, exposure of competitive commercial information, unjust harm, interruption of research and development, and reduced judicial discretion in moving ahead with litigation, Miller said. While there is a presumption that discovery documents filed with the courts are accessible to the public, the court said current federal procedures indicate no such presumption for unfiled documents. Thomas Cafferty, who represented the New Jersey Press Association and Reporters Committee for Freedom of the Press as amicus, says the ruling obviously is a disappointment. “We’re hoping for a different rule when the Civil Practice Committee examines the issue,” says Cafferty of Somerset, N.J.’s McGimpsey & Cafferty. “Material dealing with public health and safety should be accessible to the public.” Alan Medvin, of Newark, N.J.’s Medvin & Elberg, represented amicus Public Citizen Inc., a consumer group, and says the Court avoided the primary issue of whether CARS had standing to intervene. “No one ever alleged there was a right of public access to unfiled documents,” he says. “In this case, a party intervened to challenge the protective order and said there should have been a good cause hearing” to determine whether Goodyear was justified in asking for a protective order. “There was no such hearing in this case,” he says. Anne Patterson, of Morristown, N.J.’s Riker, Danzig, Scherer, Hyland & Perretti, who represented the New Jersey Defense Association as amicus, applauded the ruling. “Traditionally, New Jersey courts have encouraged parties to cooperate and agree on the terms of protective orders,” Patterson said in an e-mail interview. “The intervenor in the Frankl case, CARS, sought to make it virtually impossible to negotiate a protective order upon which the parties can rely — and to make the process very expensive. The Supreme Court was correct to reject CARS’ argument,” Patterson said. Both CARS’ lawyer, Rebecca Epstein of the Washington-based Trial Lawyers for Public Justice, and Goodyear’s lawyer, George Rooney Jr., of Cleveland, Ohio’s Roetzel & Andress, were away from their offices and could not be reached for comment.

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