Here's a piece I've written for the National Law Journal:
After a protracted fight, a federal judge has ruled on Thursday that all of the evidence that led him to find misrepresentations by plaintiffs in an asbestos-related bankruptcy must be unsealed.
When U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina estimated the liability of Garlock Sealing Technologies, LLC, in January, he found that Garlock likely owes $125 million to asbestos plaintiffs.
At that time, he rejected the plaintiffs' argument that Garlock's liability is around $1 billion to $1.3 billion after finding that there was evidence of misrepresentation by plaintiffs' lawyers in several cases that Garlock settled in the past or in which Garlock lost jury verdicts.
The judge in January found that some plaintiffs alleged they were exposed to asbestos from different sources in civil court than when they submitted claims to the trusts formed after companies went through bankruptcy because of asbestos-related liability.
During a hearing Thursday, Hodges ruled from the bench that the only information that should be redacted are social security numbers, birth dates, financial account numbers, names of minors and medical information except for diseases related to asbestos.
The judge said he also should not have closed some of the proceedings in January.
The judge said that the First Amendment applies to the records even though the estimation proceeding wasn’t a final adjudication of what Garlock owes to claimants who allege their exposure to Garlock’s products caused them mesothelioma cancer.
“It should have been public,” Hodges said. “This is the type of proceeding that would have been historically open. Public access would have served a positive role in the functioning of the court by enabling the public to evaluate the court’s decision based on all of the evidence rather than on simply part of it.”
Hodges overruled Garlock’s assertion of attorney-product privilege or attorney work-product privilege to keep sealed major expense authorizations forms documenting the approval of settlement decisions and the mental impressions and opinions of in-house and trial counsel. Hodges also unsealed Garlock’s trial evaluation forms with outside counsel’s trial plans and assessment of cases.
U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina in July reversed Hodges’ decision to seal the evidence that led to his estimation of Garlock’s liability. Cogburn remanded the case for the lower court to conduct fact-finding about the public's right of access under common law or the First Amendment.
Asbestos claimants and their law firms, as well as the official committee of asbestos personal injury claimants, moved to seal questionnaires filled out by plaintiffs, information claimants submitted to the trusts formed out of the bankruptcies of other asbestos defendants, and evidence referencing settlements by asbestos claimants, among other information.
The documents were not unsealed immediately because they must still be redacted.
Lawyer and Legal Journalist
