We've blogged before about the "Company Doe" case, in which a company sued to block the inclusion of a product report in the Consumer Product Safety Commission's publicly available, web-accessible database about potentially dangerous products. The district court permitted the company to litigate in secret and under the pseudonym "Company Doe," and a coalition of consumer groups (led by Public Citizen) appealed.
Tomorrow the U.S. Court of Appeals for the Fourth Circuit in Richmond will hear oral argument in the case. In two years of litigation, this will be the first public hearing in the entire case, which was decided at the district court based on nine months' worth of secret proceedings and which produced a 73-page judicial decision with the facts, name of the company, names of certain witnesses, and evidence blacked out.
The case is important for at least two reasons. First, this is the first challenge to the congressionally-mandated CPSC database. It's important to know how the district court applied the law to learn how the database will operate going forward. If companies can challenge reports in the database in secret, Congress's goal of informing the public will be undermined by years' worth of secret litigation during which the public will be oblivious to potential hazards.
Second, this case tests the judiciary's commitment to the First Amendment right of access to court proceedings, which enables public oversight of the working of government and facilitates public participation. If — as the district court novelly held — a corporate reputational interest justifies secret litigation or the use of a pseudonym, one can a imagine a lot of companies stepping forward to seek secrecy. Companies sued for fraud, pollution, discrimination, and (of course) making dangerous products could all claim they ought to be allowed to litigate in secret under this view. Let's hope the Fourth Circuit rejects it and sends a powerful message about the importance of court openness in a democracy.
I’m not a lawyer, but the potential direct effects and other reverberations of the final judgments of this case seem to me mind-bogglingly transformative to our legal system. Put this together with Citizens United –which seems to imply that people are corporations (no sic)– and you get … a bottomless docket of John (and Jane) Doe complaints and suits against any and everything imaginable. Why not just encourage EVERYONE (judges and jurors included) to use aliases, wear masks, redact their testimony, etc.? Who needs to know who anyone is and exactly what they’re saying?