Reuters' analysis of U.S. court secrecy: the methodology
(This accompanies SPECIAL REPORT-How judges added to the grim
toll of opioids)
NEW YORK, June 25 (Reuters) - To measure the extent and
impact of court secrecy, a team of Reuters journalists analyzed
Westlaw data from 3.2 million civil suits filed in federal court
between 2006 and 2016.
Reporters used a combination of artificial intelligence
tools and manual case review. The computer-driven analysis,
using a process known as machine learning, reviewed 90 million
court actions and identified those in which material was filed
under seal. This revealed that judges allowed litigants to seal
material in at least 65 percent of product-liability actions.
But the docket descriptions are too brief to reveal the
nature of the information filed under seal or what justification
was offered for the secrecy. For that, reporters turned to the
filings themselves and conducted a case-by-case review.
Court rules allow for sealing of records to protect company
trade secrets and private information, such as medical records.
What should not be sealed – without any meaningful justification
by a judge – are records pertinent to public health and safety.
So Reuters sought to identify cases where public health and
safety information was kept secret without explanation.
Reporters read thousands of court filings from 115 of the
largest mass product-liability actions from the past 20 years.
These mass cases are known as multidistrict litigation actions,
or MDLs. In an MDL, individual lawsuits are consolidated for all
pretrial proceedings. Those lawsuits can sometimes number in the
Reporters determined the nature of the sealed material by
reading unredacted passages or other public court documents that
described the sealed content. At least 48 percent of the 115
cases they reviewed contained sealed public health and safety
evidence. Reporters then checked the court dockets to see if the
judge offered any justification for the secrecy. In 85 percent
of the cases with sealed health and safety material, judges
offered no reasoning in the court record.
During the MDL review, reporters also identified 31 cases
where critical motions were filed entirely under seal, a
practice court rules discourage because truly confidential
information rarely encompasses an entire brief. The critical
motions included in this count were:
* Summary judgment motions, which often lay out in detail
the strongest evidence collected in support of or opposition to
the plaintiff’s claims.
* Daubert motions, which seek to exclude an expert witness
and often discuss critical evidence in the case.
* In limine motions, which seek to preemptively exclude
evidence from an upcoming trial.
* Class certification motions, which seek permission for
multiple individual plaintiffs to sue as a group.
* Complaints, in which plaintiffs set out their claims
against the defendants.
(Edited by Janet Roberts.)
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