Our Mommas Taught Us to Share!
Today, October 19, 2015, the National Highway Traffic Safety Administration (“NHTSA”) is seeking official comments on an important proposal that could affect the way people injured by defective automobiles are able to share information. We are pro-sharing! Not only is it what we teach our children, but it’s crucial to keep consumers safe from dangerous vehicles and defective products.
Butler Tobin’s official comment to NHTSA:
October 19, 2015
Mr. Timothy H. Goodman
Assistant Chief Counsel for Litigation and Enforcement
National Highway Traffic Safety Administration
U.S. Department of Transportation
1200 New Jersey Avenue SE
Washington, DC 20590
(f) 202 493 2251
RE: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation
Dear Mr. Goodman,
What the National Highway Traffic Safety Administration (“NHTSA”) has proposed is a great idea. The sharing of information from civil cases is necessary to protect the public. NHTSA should absolutely support it.
As you know, NHTSA needs information to do its job. It needs to know what automotive problems are arising in the real world, what the consequences of those problems are, and what can be done to fix those problems.
The documents produced in civil litigation provide that information. First, civil cases can tell NHTSA to know what real-world automotive problems exist because plaintiffs’ Complaints, discovery responses, deposition transcripts, and trial transcripts describe those problems in detail. Second, civil cases can tell NHTSA what the consequences of those problems are because the aforementioned documents—and the plaintiffs themselves—describe how real people are affected by the problem. Third, civil litigation can tell NHTSA what can be done to fix the problem—both because manufacturers often provide detailed engineering information in litigation, and because plaintiffs often suggest safer alternative designs.
There is no good reason for NHTSA not to have this information. The information already exists. It is already being compiled. It can be sent to NHTSA at little or no cost. It will help NHTSA protect the American public.
There has been, as you know, one main impediment to NHTSA accessing this information: unduly restrictive “protective orders,” “confidentiality orders,” or “confidentiality agreements” that manufacturers insist upon in order to keep NHTSA, other litigants, and the public from learning about potential defects.
Those protective orders are bad for the American public and antithetical to NHTSA’s mission. I support NHTSA’s proposal as a good first step toward solving these problems.
However, NHTSA is not the only entity that needs access the materials produced in, and generated by, civil cases. Often, other litigants need access to that information—and protective orders are the primary tool that manufacturers use to block plaintiffs from sharing among each other. For that reason, I cannot agree that protective orders “are often necessary to promote full and complete disclosure” or are necessary “to prevent abuses of the discovery process.” Instead, protective orders more commonly frustrate full and complete disclosure by keeping other litigants in the dark. Protective orders more commonly facilitate abuses of the discovery process by allowing manufacturers, who know that litigants cannot share information freely, to withhold information from one litigant without fear of getting caught—because they know that litigants cannot cross-check the documents that have been produced with other litigants.
I support NHTSA’s efforts to eliminate protective orders as an impediment to NHTSA’s ability to gather information. However, the Enforcement Guidance Bulletin should not be written in such a way as to enable manufacturers to suggest to Courts that because information can be shared with NHTSA, it is unnecessary to share that information with other litigants. The Enforcement Guidance Bulletin should not legitimize restrictions on the sharing of information by saying that protective orders “are often necessary to promote full and complete disclosure” or are necessary “to prevent abuses of the discovery process.” Instead, the Enforcement Guidance Bulletin should encourage the sharing of information among litigants, subject to such reasonable protections for trade secrets as may be necessary. (For instance, plaintiffs can be restricted to sharing with other litigants with a similar type of case, and the receiving litigants can be required to sign an agreement further limiting the dissemination of the information—both of which are common practices.)
Language such as the following would be wise to include in the Bulletin:
Although this Enforcement Guidance Bulletin deals primarily with making information available to NHTSA, the Agency notes that it is not attempting to discourage the sharing of information among litigants. To the contrary, NHTSA supports the reasonable sharing of information produced and discovered in civil lawsuits among litigants where feasible. Where important trade secrets are not truly at issue, NHTSA further supports the sharing of information with the public at large or with nonprofits such as the Center for Auto Safety.
As Justice Brandeis wrote, sunlight is the best disinfectant.
J.E. Butler III (“Jeb”)