Consumer Groups Press Court on Mystery Defendant

, The Litigation Daily

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This story first appeared in sibling publication The National Law Journal.

During the past two years, the government has posted online tens of thousands of safety-related reports about a range of products — from kitchen appliances, strollers and sports gear to window coverings, toys and televisions.

But there's one incident report — perhaps among others — that will never make it onto the SaferProducts.gov database. A manufacturer, identified only as Company Doe in redacted court papers, blocked the Consumer Product Safety Commission from publishing the information.

The company — and its product — remained a secret as the litigation proceeded under seal in Maryland federal district court. Now, a federal appeals panel is weighing whether to shed light on the proceedings.

The case in the U.S. Court of Appeals for the Fourth Circuit, which heard the dispute on Oct. 31, tests the scope of the authority of judges to close courtrooms and to conceal documents from the public. The case also marks the first challenge to the congressionally mandated product-safety database, which went live in 2011.

Lawyers for Company Doe, represented by Gibson, Dunn & Crutcher, contend that even identifying the manufacturer's name would hurt the company's reputation and economic well-being. The attorneys also argue the report is false. "Congress wanted a database that had integrity," Gibson Dunn's Baruch Fellner told the appellate judges. "They did not want the flotsam and jetsam of inaccurate reports."

This much is known about the report: An unidentified government agency, claiming one of Company Doe's products harmed a minor, filed the document with the consumer safety commission.

The company, contesting the accuracy of the report, submitted medical evidence to the commission. The agency and Company Doe went back and forth several times before the commission decided to publish a version of the report at SaferProducts.gov. Company Doe sued in 2011 to stop the disclosure. Last year, U.S. District Judge Alexander Williams Jr. prohibited the consumer safety commission from revealing the contents of the document.

The commission, represented by the U.S. Department of Justice, withdrew its appeal two months after filing notice. A spokesman for the commission declined to comment on the decision.Three consumer advocates — Public Citizen, Consumers Union and Consum­er Federation of America — are fighting Company Doe in the Fourth Circuit over the secrecy of the case. The groups' request: Unseal everything, including the contested product-safety report and the name of the manufacturer.

"The case was litigated entirely under seal — with secret facts, a secret party, secret witnesses, secret arguments and even a secret docket," Public Citizen's Scott Michelman told the Fourth Circuit judges. "Secret litigation to protect a party's reputation is unprecedented and it is inconsistent with the First Amendment."

Judges Andre Davis and Henry Floyd, both appointed by President Barack Obama, heard the case with Senior Judge Clyde Hamilton, who joined the court during the Reagan administration.

'PYRRHIC VICTORY'

Company Doe, Michelman said, chose to take its dispute with the safety commission to federal district court — exposing itself to the judiciary's presumption of openness. Going to court, he said, perhaps presented the company an "uncomfortable choice."

To disallow Company Doe to sue under a pseudonym, Gibson's Fellner argued in the appeals court, would "shut the door" to challenges over the SaferProducts.gov database and other government-run information hubs. "If we win — as we did, insofar as the database is concerned — but we lose insofar as the attendant litigation is concerned, it is a Pyrrhic victory," Fellner said in court. "No one will go to court to challenge any database entry."

Company Doe's lawyers wrote in a brief that "no company would hazard the costs and uncertainty of litigation to challenge an inaccurate incident report if a third party could appear, unseal any document revealing the identity of the product's manufacturer or the content of the report."

Davis and Floyd appeared more sympathetic — at least through their questions — to the challengers than did Hamilton. Davis pressed Fellner on whether the trial judge overstepped his authority in restricting public access to information. "The statute governs whether a federal district court can seal a public record?" Davis asked during one exchange.

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