Allowing Companies To Keep Claims Against Them Secret Places The Public In Danger, And It’s Contrary To The Purpose Of The Jury System

Federal Judge Releases Previously Secret Documents Exposing Defective Highway Guardrails, Allowing Improved Public Safety By Holding Manufacturer Accountable

At its core, the very purpose of the jury system  is to have a sampling of the community act in the community’s interest in deciding cases.  The members of the jury are,  very literally, the conscience of the community.  The jurors decide what conduct  will and will not be permitted in that community.

Companies that are sued for wrongdoing frequently try to hide their bad actions  by claiming that lawsuit documents should be kept secret.  They frequently  try to obtain secrecy by  stamping  almost every page that they’re forced to turn over to the other side as containing “trade secrets”,  even  though  the documents really don’t contain any trade secrets.  They do this because they know that this is  their best chance to keep the documents secret.

We’re happy to report that in a major case involving successful claims against the manufacturer of dangerous highway guardrails, a federal judge has ordered that court records in the case be made open to the public. In Harman v. Trinity Industries Inc. and Trinity Highway Products LLC, Judge Rodney Gilstrap refused Trinity’s request to keep confidential various documents that the company claimed contained trade secrets. Judge Gilstrap disagreed, saying that allowing  the company’s defense attorney to decide which documents were kept  secret or not,  as Trinity’s defense attorney in this case did, “would undermine public confidence in the judicial system—a confidence that cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.”

Allowing corporations to keep lawsuit documents secret puts everyone our country in real physical danger, because there will be no public hue and cry to fix dangerous products if the public never finds out about them.

We applaud Judge Gilstrap for having the courage to do this. All too often, big companies get away with it, hiding behind completely fictitious claims of trade secrets.  United States Supreme Court Justice Louis Brandeis said it best when he said:

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.”

There is a real safety danger to everyone in the public when corporations are allowed to keep secret the claims that are made against them.  We completely agree the trade secrets should be protected so that competitors can’t steal them.  But the vast majority of the time, companies seek secrecy for their documents not because they want to hide things from competitors, but because they want to hide things from the public.  The facts they try to hide frequently include such things as how dangerous their products can be,  how many people their products have killed or maimed, how inexpensive and simple it would be to fix their design, when they first knew about the dangers, and how many times they’ve been sued by other innocent victims.

Classic examples of this include car companies refusing to recall their products to fix defects.  GM’s massive ignition switch recalls last year only happened because a tenacious trial lawyer sued them and exposed the fact that GM knew all along that its ignition switches could accidentally turn off, disabling air bags, power steering and power brakes at the very moment the driver needed those features the most, resulting in many fatalities and injuries.

False claims of trade secrets are commonplace, having been made by companies as far ranging as manufacturers of guns that fire even when their triggers aren’t pulled to manufacturers of cars that accelerate when their gas pedals aren’t depressed.

Public Justice, a non-profit public interest project, explained in its blog here why this decision is so important and what this case is about.  Public Justice said:

That’s why the victory for public access is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And these documents are also major ammunition for states seeking to phase out and remove these lethal guardrails from our highways.

Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.

Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by our client The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.

In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, we sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.