Transparency in Litigation

In recent years, state legislatures and courts have pared back litigation secrecy, fueled by revelations of corporate and individual malfeasance, from #MeToo to opioids, that, if discovered sooner, might have avoided further harm or even saved lives.  In California, the exposure of Harvey Weinstein’s predations prompted the state’s legislature to enact the Stand Together Against Non-Disclosure (STAND) Act, restricting confidentiality clauses in settlement agreements in cases involving sexual misconduct. Even before the STAND Act, other states had moved to open up civil litigation, and appellate courts expressed thinning patience with over-broad and poorly supported trial court orders that shield important information from public scrutiny.

These transparency-promoting efforts have spurred heated debate.  Proponents point to public health and safety benefits and to “open courts” as a cornerstone of American law.  Opponents counter that dispute resolution outside the public eye serves equally cherished American ideals of privacy, individual autonomy, and efficient settlement of differences.  On the latter, a recent effort to extend California’s STAND Act to much of tort law—which the Rhode Center supported—went down to defeat amidst opponents’ claims that transparency would unleash a cascade of negative effects, including an uptick in adversarialism, higher litigation costs, and fewer settlements.

Yet despite longstanding debate, there is surprisingly little rigorous empirical evidence testing any of these claims. We believe judges, litigators, policymakers, and scholars like us would benefit from an injection of fresh empirical facts into the conversation. To that end, the Rhode Center is mounting a major, first-of-its-kind empirical project to explore the role of protective orders, motions to seal, and secret settlements within the American legal system. Leveraging two enormous datasets—including a full decade of federal court secrecy orders and a novel dataset with millions more cases from the Los Angeles Superior Court, our project will shed much-needed light on a debate that has to this point remained largely undisciplined by rigorous empirical evidence.