By Dan Jaffe on December 13, 2016
Justice, a public interest advocacy organization, recently posted over one million pages of Remington Arms Company internal documents on a publically available searchable online database. These documents concern the “Walker” trigger mechanism of the Remington Model 700 rifle, which has been the subject of more than 100 lawsuits, and is allegedly implicated in at least 24 deaths.
In connection with a proposed settlement in Pollard v. Remington Arms Company, LLC, a class action involving the Walker mechanism, the parties submitted a joint motion for entry of a stipulated protective order which would have broadly prohibited access to internal Remington Arms Company documents produced in discovery both pre- and post-settlement. The Court denied the request in a December 3, 2014 order stating, “Given that this case involves alleged design flaws with the Walker Fire control trigger assembly, there is a strong public interest in not allowing the Court’s orders to be used as a shield that precludes disclosure of this danger.”
This order became very significant when a former plaintiff against Remington whose 9-year old son died in 2000 announced that he would file an ancillary action in Pollard, with the assistance of Public Justice, seeking leave to disclose all of the Remington documents which were subject to protective orders in previous cases involving the Remington Model 700 trigger assembly. Remington decided to agree to such disclosure in view of the Pollard order, thereby avoiding the ancillary action. Remington conceded not only disclosure of the documents produced in Pollard, but also disclosure of documents previously made confidential pursuant to numerous prior protective orders issued in decades of prior litigation. Public Justice has now made them available for all to see.
Entry of stipulated protective orders is common in product liability litigation. They are intended to allow manufacturers to freely produce internal documents and information in discovery without compromising trade secrets or other proprietary information. Public Justice and some former plaintiffs contend, however, that such protective orders often go beyond protecting trade secrets, and keep dangerous conditions in widely sold products concealed from the public, resulting in consumer injuries and deaths caused by such products.
The Pollard ruling involved several relatively special considerations, including the settlement of one class action and a proposed national class action which could potentially affect the interests of a large group of claimants. However, the Pollard case also evidences a trend away from the issuance of protective orders which broadly prohibit the disclosure of information about claimed product defects, even if agreed to by both plaintiffs and defendants in a particular case. The Pollard ruling, therefore, marks a departure from the past common practice of issuing stipulated protective orders that were broad in scope with little consideration of the public interest, by denying the issuance of such an order based on over-riding considerations of the public interest and public safety.
The ruling in the Pollard case and Remington’s subsequent agreement to permit the public disclosure of documents previously prohibited from such disclosure by protective orders issued over decades shows a significant change from past practice. It indicates that at least one company in a given situation has decided to err on the side of pervasive disclosure and “over warning”. This may become a more favored practice in place of the use of protective orders. Such an alternative practice has been utilized in businesses providing pharmaceuticals and medical devices for many years.
Despite the foregoing, Rule 1 of the Federal Rules of Civil Procedure expresses the salutary intent that the Rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” In reviewing proposed protective orders negotiated by the parties in products cases courts should carefully consider the potential benefits of such orders in promoting full and free disclosure of potentially relevant information and documents while protecting confidential research, development and commercial information as contemplated by Federal Rule 26(c) and analogous State court procedural rules. Those benefits include fostering cooperation by the parties in discovery and promoting settlements that are in the interests of the parties and the courts, and the interest of justice.