In 1978, a lawyer representing injured workers found a treasure trove of evidence involving asbestos. It was a log of the evidence from a prior worker’s lawsuit, including documents written by the one-time president of Raybestos-Manhattan, Inc. Those documents contained detailed proof the company — and other asbestos companies — knew that asbestos exposure could be deadly to workers.
It used to be that evidence in any trial was part of the public record. That included not only exhibits and testimony but also depositions, which are interviews under oath, and internal documents maintained by businesses.
Today, judges increasingly allow defendants to seal this information from the public, according to an investigation by Reuters. Judges are supposed to write a specific opinion on why sealing the evidence does not violate the public spirit of our courts, but this is not always done.
The theory supporting sealing evidence is that corporations should have privacy in their internal documents and the testimony of their officials. Violating their privacy would, the argument goes, undermine American business operations. It could allow mere allegations to be taken as fact, misleading the public. It could dramatically increase the cost of litigation, overburdening both defendants and the courts.
The argument against allowing evidence to be sealed from public view is that the evidence often contains truths that should be shared with consumers and regulators, like it did in the case against Raybestos-Manhattan. Company documents and depositions could include evidence of wrongdoing. That evidence, in turn, might help prevent or minimize future harm to others.
When a worker’s or consumer’s case gets settled before trial, the sealed evidence may never come to light.
Unfortunately, a well-funded campaign by corporations and their attorneys has made it common to seal away the evidence in cases where workers or consumers have been harmed. This involved persuading the U.S. Supreme Court to presume that corporations may keep their secrets private. It involved shifting the judiciary away from the idea of an open litigation process and toward the assumption that only the trial itself should be public, not the underlying pre-trial evidence. According to Reuters, it took years of lobbying and effort.
Has this led to evidence of corporate wrongdoing remaining private? Arguably, yes. Without the chance to review the sealed evidence in a wide range of cases, however, it would be impossible to prove.