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Court Secrecy: The Importance of Open Proceedings

Michael R. Kennedy

January 3, 2019 

For centuries, our civil justice system has relied on open trials, ultimately evolving into a presumption of public access to court proceedings and records, which remains a fundamental part of our judicial system today. This presumption of public access is grounded in the public’s interest in monitoring the judicial process.  Such access enhances public confidence that the judicial system is operating fairly, impartially and in accordance with established norms. Transparency is necessary to ensure accountability and effect change. This is especially true because our civil justice system serves both as a vehicle for compensation and a powerful societal force to hold people and entities accountable for their conduct.

Today, however, wealthy and powerful defendants are increasingly using secrecy as a weapon to prevent consumers, employees, injury victims and victims of sexual assault, abuse and harassment from their day in court. Rather than punishing bad behavior, such secrecy enables wrongdoers, silences victims, prevents the public from learning of dangers existing in society and can embolden bad actors.  While secrecy may have a role in some limited circumstances, e.g., protecting trade secrets, too often these defendants – corporations, institutions and individuals – are instead trying to shield litigation from public view through forced arbitration, protective orders, confidentiality agreements and secret settlements.

It is critical not just to the claimants, but to society at large, that these types of cases remain open to the public. Survivors of sexual abuse are empowered to confront their experiences in positive ways when their stories are available to the public.  This been poignantly illustrated by other public cases of institutional sexual abuse or harassment, where lawsuits against the Catholic Church, the Boy Scouts of America, Boys and Girls Clubs, YMCAs and, more recently, multiple news broadcasting agencies, have been filed by survivors, thereby exposing the institutional enabling of such conduct.  These examples clearly illustrate the importance of open proceedings that have given sexual abuse survivors and victims of sexual assault, who previously felt voiceless and alone, the courage to come forward.  As attorneys who represent victims of sexual abuse and harassment, we should vigorously fight the imposition of any defense effort to shield a case or documents obtained through discovery from public scrutiny.

Michael R. Kennedy
Silver Golub & Teitell LLP
mkennedy@sgtlaw.com

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