The federal government says that court secrecy is preventing it from protecting consumers. To stop that, the U.S. Consumer Product Safety Commission just adopted a formal Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation, published in the Federal Register on December 2, 2016. The Guidance urges all judges, plaintiffs, defendants, and lawyers, as well as parties wishing to submit amicus briefs, to ensure that every protective and secrecy order and agreement “specifically allows for disclosure” to the “CPSC and other government public health and safety agencies.”
The CPSC Guidance is an enormously important step forward for consumer protection that could reduce injuries and save lives nationwide. Judges need to make sure all protective and secrecy orders and agreements comply with it. Everyone should follow it. As the deadly, growing series of examples—from Remington rifles to Takata airbags to GM ignition switches—proves, court secrecy injures and kills.
The danger is real—and avoidable. The Guidance specifically notes that “safety information related to dangerous playground equipment, collapsible cribs, and all-terrain vehicle defects was kept from the CPSC by protective orders in private litigation.” It cites protective orders in current cases involving allegedly defective propane heaters, wheelbarrows, markers, multimeter devices, office chairs, and gas cans that prevent the CPSC from learning the truth. There are undoubtedly many more.
Recognizing that fact, the CPSC advises parties currently negotiating “or already subject to” confidentiality provisions to “use this Litigation Guidance and the CPSC’s standing as a public-health authority” to create an exception to them ensuring that information can be reported to the CPSC and other relevant agencies. It even provides draft language that could be used.
The Guidance describes in some detail how protective and secrecy orders and agreements prevent the CPSC from doing its job—and the difference properly limited orders and agreements could make. It says that, under the Consumer Product Safety Act, the Commission is “responsible for ensuring the public’s safety from thousands of different ever-evolving product lines” and that the “timely collection of information regarding consumer product-related safety hazards is essential for carrying out the Commission’s public health and safety mission.”
To achieve these goals, the Guidance explains, manufacturers (including importers), retailers, and distributors are “required to report immediately to the CPSC when they obtain information that reasonably supports the conclusion that a product fails to comply with an applicable rule or standard, contains a defect which could create a substantial product hazard, or creates an unreasonable risk of serious injury or death.” But they don’t always do so. They “may fail to report potential product hazards altogether, may fail to report them in a timely manner and/or may fail to report new incidents that occur after the initial hazard has been reported.”
Since the CPSC “has limited alternative means of obtaining this critical safety information,” the Guidance says, without the information discovered in civil litigation, it is “possible that a product hazard will never come to CPSC’s attention.” For that reason, it says, “The Commission believes the best way to protect public health and safety is to preemptively exclude or exempt the reporting of relevant consumer product safety information to the CPSC (and other government public health and safety agencies) from all confidentiality provisions.”
The CPSC Guidance is similar to and explicitly modeled on the Enforcement Guidance Bulletin formally adopted by the National Highway Transportation Safety Administration (NHTSA) and published in the Federal Register on March 11, 2016. That Bulletin, Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation, urges courts, lawyers, and litigants to avoid the use of “protective orders, settlement agreements, or other confidentiality provisions” barring reporting to the agency.
Agreeing with NHTSA’s analysis, the CPSC says that, when orders and agreements “shield relevant and actionable safety information behind nondisclosure provisions, they violate the good-cause requirement of Rule 26 of the Federal Rules of Civil Procedure, its state corollaries, and the well-established public policy favoring protecting public health and safety.”
So the CPSC declares that “all parties” should “seek to include a provision in any private protective order or settlement agreement that—despite whatever restrictions on confidentiality are imposed, and whether entered into by consent or judicial fiat—specifically allows for disclosure of relevant [consumer product] safety information to [the CPSC] and other applicable authorities.”
The CPSC is right. That’s one thing judges and everyone involved in litigation needs to do.