Continued from Monday, January 7, 2019.
How proposed orders are now used to keep evidence concealed in many cases. There was a January secrecy agreement and a proposed order in it that Wells Fargo and the City of Los Angeles filed together in the lawsuit. It runs on the same tracks as many relatively "new" but increasing practices over the past 25 or 30 years.
Modern cases routinely involve secrecy agreements written by large corporate defendants such as banks or products manufacturers. Their agreements or, as lawyers call them, stipulations, are proposed with the agreement of the lawyers who represent the individuals suing these "Goliaths." The defendants involved have huge financial resources and large law firms at their disposal, whereas the individuals suing them mostly do not.
These secrecy agreements all have proposed secrecy orders written into them. Individuals and their lawyers participate in these secrecy stipulations for more than one reason, of course. Chief among the reasons is their comparative disadvantage in contesting every single piece of evidence, one piece at a time, or alternatively marking categories of evidence which is alike because the things in those categories arguably contain good cause to keep them secret. Good cause. Shown to the judge. This much is what the law calls for in just about every kind of case -- unless there is a secrecy agreement with a proposed order written into it that does not require a showing of good cause other than a lawyer's say-so.
Every adversary of large businesses and wealthy individuals in litigation has an incentive not to spend too much time and money arguing about them. Large businesses like banks and insurance companies almost always have larger budgets for litigation than the individuals opposing them. Wealthy individuals involved in litigation similarly tend to have big litigation budgets.
In some cases it is pretty clear to experienced observers that the plan at work is correctly called "litigation by attrition": The plan in those cases is to wear adversaries down especially to achieve goals in the lawsuit. I have not personally seen nor am I otherwise aware by any means that all large businesses and wealthy individuals follow litigation plans like this.
However I have personally seen and I am otherwise aware that many do. When they do, they are not shy about letting their adversaries know it. Whether you like it or not, that is how lawsuits are tried now and how they have been tried for decades.
The cure is close at hand. It is for judges and lawyers to follow the law as it exists right now. The law requires that good cause must be shown in order to keep information in court files secret. The law should be applied in every case -- regardless of lawyers and their clients agreeing to choose their own substitute law.
Judges and lawyers would profit from the results. So would the public.
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