NPR & Charleston Gazette ask court to reject call for "sealed record" in Massey-Alpha merger litigation

[June 3, 2011: Update below]
[May 31, 2011: Update below]

The West Virginia Supreme Court has taken up the case by Massey Energy shareholders to block the $8.5 Billon sale of the firm to Alpha Natural Resources. The Charleston Gazette's Ken Ward Jr., and National Public Radio's (NPR) Howard Berkes have followed the day-to-day event on the suits (here, here, here, here.) Now, their organizations are part of the action.

The two news outlets filed a motion today before the WV Supreme Court, urging the judges to reject the request by the California State Teachers Retirement System (a plaintiff trying to block the merger) to seal all the records related to the litigation. The pension-fund plaintiffs assert that the record should be sealed because the depositions and documents provided during the discovery process were done so under confidentiality agreements and protective orders. The NPR and Charleston Gazette counter motion says it is not surprising that the parties in the suit (including Massey Energy) want to avoid the public airing of dirty (or worse) laundry. Their motion says:

"...this Court is not obligated to pander to parties' desires to hide from public scrutiny. Massey Energy and its related entities form one of the largest employers in this State. As such, Massey's conduct, the sale or potential sale of the company, the required public disclosure of relevant information concerning the value of the company to shareholders so they can make informed decisions..."

The news outlets' motion goes on describing why making the documents available serves the public interest. The documents will potentially contain

"...important records concerning that company's acts and omissions in one of the worst mining accidents in recent history. If the Court seals the record and undertakes its review of the case in secret, the risk of losing the public's confidence in the judicial system is increased expotentially."

Through our Project on Scientific Knowledge and Public Policy (SKAPP) we've written about the benefit to society and the public health value of keeping litigation records open. Most recenly, my colleague Liz Borkowski wrote about the implications of court-sponsored secrecy in the context of injuries sustained following the Exxon Valdez disaster. In "Sequestered science: oil clean-up workers' health" Borkowski referred to a USA Today article by Elizabeth Weise who reported that there isn't much scientific literature on the health consequences suffered by the workers. According to a NOAA scientist who was involved in the clean-up, this occurred, in part,

"because the people who got sickest and won against Exxon got settlements that required that the records be sealed."

Other SKAPP colleagues Anthony Robbins, MD and Daniel Givelbar wrote in "Public Health versus Court-Sponsored Secrecy,"

"The public health case against the secret resolution of lawsuits involving dangerous products and practices is straightforward. Suppressing information about the dangeres inherent in corporate behavior and consumer products deprives regulators, litigants, and consumers of knowledge relating to safety. Regulators might have acted earlier with respect to the dangers posed by asbestos, the Dalkon Shield, and Bridgestone/Firestone tires had they been aware of the number of lawsuits, the settlements, or information revealed in pretrail discovery."

We offer other papers on this topic, along with a blog post on the journal Nature's call for an end to secret settlements.

As Chief U.S. District Court Judge Joseph F. Anderson wrote in 2004 "Hidden from the public by order of the court: the case against court-enforced secrecy,"

"...courts too often rubber-stamp confidentiality orders presented to them, sometimes altogether ignoring or merely giving lip service to the body of law and existing court rules that are supposed to apply when the parties request that discovery documents be filed under seal, that settlements be subject to a gag order, or that previously filed orders be vacated. ...the involvement of trial judges in ordering secrecy (as opposed to simply allowing litigants to keep quiet by agreement) as part of an ongoing effort to settle cases at all costs is bad policy and is hurting the system of justice that we all hold dear."

I couldn't agree more.

The WV Supreme Court may rule on these motions for and against secrecy as early as next week.

[May 31, 2011 Update: : The Charleston Gazette and NPR are reporting a partial victory today, with a partial unsealing by the Court of certain records; here, here]

[June 3, 2011 Update: The Charleston Gazette (CG) and National Public Radio (NPR) continue to report on the contents of the unsealed records, including:

"What I would have asked Alpha's Kevin Crutchfield" (CG, 6/3/11)

"Internal review scourned Massey image and CEO" (NPR, 6/2/11)

"Unsealed records outline Massey's boards failure" (CG, 6/2/11)

"Unsealed documents reveal lax attention to safety before mine blast" (NPR, 6/2/11)

"5,000 pages of Massey documents to be released" (CG, 6/1/11)

"Time to turn the page on Massey?" (CG, 6/1/11)