public records

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.

I'm writing several times a day about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.

Garlock Sealing Technologies LLC and two other related defendants are opposing motions to keep sealed the names of asbestos plaintiffs and the amounts of settlements they have reached with those plaintiffs.

The judge presiding over the Garlock’s bankruptcy proceedings has set up a process to unseal evidence that led him to make findings of alleged misrepresentation by plaintiffs.

Garlock also wants to unseal questionnaires submitted by claimants in its bankruptcy case and submissions made by claimants to trusts formed out of other companies’ asbestos-related bankruptcies.

“A large portion of the asbestos claimants whose names appear in the estimation record have open claims and are therefore the putative creditors (and parties in interest) in this case,” Garlock said. “The [U.S. Court of Appeals for the Fourth Circuit] has held that parties should be allowed to litigate anonymously only in ‘extraordinary circumstances’ justifying a ‘rare dispensation.’”

Claimants’ names are routinely disclosed in asbestos tort litigation and in marketing materials disseminated by the law firms representing them, Garlock said.

In a separate motion , the official committee of asbestos personal injury claimants objected to Garlock’s request to seal some of the bankruptcy filings, including the major expense authorizations that memorialize the reasons Garlock settled mesothelioma cases for the amounts it did and trial evaluation forms completed by Garlock’s outside counsel about cases going to trial.

“Until now, the debtors have been enthusiastic advocates of disclosure, casting themselves as crusaders on the public’s behalf,” the committee said. “Now, without any sense of irony, the debtors maintain that their own documents—critical pieces of the ‘full story’—should remain sealed and shielded from public scrutiny.”

Those documents cannot be shielded by attorney-client or work-product privilege because Garlock had its attorneys testify during the proceeding held to estimate its liability to asbestos plaintiffs about why they settled cases, the committee said.

According to the committee, those “contemporaneous documents” are at odds with why Garlock says it settled its cases.

Last winter, U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina estimated that Garlock likely owes $125 million to asbestos plaintiffs. He rejected the plaintiffs' argument that Garlock's liability is around $1 billion to $1.3 billion after finding evidence of misrepresentation by plaintiffs' lawyers in several cases that Garlock settled in the past or in which Garlock lost jury verdicts.

According to both sides, the parties agree that there should be redactions of most plaintiffs’ Social Security numbers, birth dates, the identities of minors, account numbers and medical information except that related to asbestos exposure.

The Connecticut Post and the Danbury News-Times published my piece (DNT20140428.pdf) about adoptees who are trying to change the law so they can have access to their birth certificates.

Joan DiGiulio doesn’t know who she is.

Until the age of 45, DiGiulio didn’t know she was adopted. She only discovered her past when she went to get her birth certificate in New York City before taking a trip to Europe.

DiGiulio will turn 76 next month, but the identity of the woman who gave birth to her remains a mystery. DiGiulio said she has given up actively searching for her birth family because it just makes her want to weep.

Although her adoptive parents never treated her as an outsider, it was hard to shake that sentiment.

“You’re an outsider even though you think you’re not,” said DiGiulio, who lived in Danbury for more than 40 years and now splits her time between Florida and Southbury.

While DiGiulio concedes it’s unlikely her birth mother is still alive, she wonders if she has any biological siblings. She is also interested in her medical history, hoping it could illuminate a medical condition that affects no one in her family but her daughter.

It’s just one more longshot in a lifetime of longshots.

DiGiulio is stymied in her search because New York and Connecticut seal adoption records. Undaunted, DiGiulio and many other adoptees hope Connecticut lawmakers will soon allow access to the birth certificates of those who have been adopted.

In Connecticut, adoptees have their original birth certificates sealed and are issued revised birth certificates that list their adoptive parents as their parents. Until 40 years ago, birth certificates were open records.

Right now, a bill is pending in the General Assembly that would give adult adoptees — and their children and grandchildren — the right to access the original birth certificates. The bill would set up a voluntary procedure for birth parents to specify if they want to be contacted by their adopted descendants. Adoption agency counseling records, and court records of adoption hearings and the termination of parental rights, would remain confidential.

Time is running out, however, for the law to be changed this legislative session, which ends May 7. A compromise is on the table that would restore access to birth certificates for those adopted Jan. 1, 1983, or later. The rationale for opening some, but not all birth certificates is a form has been given to birth parents since 1983 in which they are advised when terminating their parental rights, “the child or youth, upon reaching his or her 18th birthday, may have the right to information which may identify me or other blood relatives.”

State Rep. Fred Camillo, R-Greenwich, is a co-sponsor of the original legislation to open adoptee birth certificates.

Some legislators are reluctant to support the legislation because of the earlier implicit promise to birth parents that adoption records would be closed, Camillo said.

Others are concerned that if adoptions are no longer closed, birth mothers will choose abortions instead of adoptions, he said.

Camillo argues unsealing adoptee birth certificates will help adoptees search for their birth parents and access information about their health that could potentially save their lives.

Ultimately, he said, health trumps embarrassment.

Catholic Charities, Diocese of Norwich, and Catholic Charities, Archdiocese of Hartford, submitted testimony against House Bill 5144.

In its written testimony, Catholic Charities of Norwich said lawmakers should “respect the privacy rights of biological parents who were ensured confidentiality at the time that they made the decision to place their children for adoption. Releasing this information without their consent violates fundamental fairness and privacy rights which are the foundation of our laws.”

Karen Caffrey, another adoptee, is a psychotherapist who counsels adoptees and an activist with the grassroots adoption organization, Access Connecticut.

Caffrey said her group supports the compromise bill. If the bill passes this spring, Access Connecticut will work to restore access to the birth certificates of people who were adopted before 1983, she said.

Adoption secrecy was a social experiment to protect children from the stigma of being born outside of marriage and acquiring bastard status, Caffrey said.

Karen Waggoner, of Bethel, a retiree who gave her daughter up for adoption, said women had to drop out of school when they got pregnant.

Waggoner, who grew up in Greenwich, said the stigma continues today. Waggoner, who is in the middle of helping to plan her 50th high school reunion, said she has classmates who got pregnant as teenagers and are unwilling to come to the event.

“It was a hideaway era,” she said.

Penny Palmer, a Bethel resident who grew up in Greenwich, gave up her son for adoption in 1968. Palmer said she was the only young woman she knew of who got pregnant and wasn’t sent out of town.

Today, there’s far less social scorn about children being born to unmarried parents, she said.

But in the late 1960s, not only did women go through the trauma of giving up their children, everyone around them made them feel “so horrible” for getting pregnant out of wedlock, Palmer said.

“I do understand why people don’t get over that,” she said.

For Palmer, finding her biological son turned out to be a joyful experience.

After finding him at the age of 22 in 1990, her son’s adoptive parents became part of her family, and her two younger sons embraced their older half-brother, Palmer said. He has now been a part of her life for longer than he was out of it.

Krista Bradford, a Westport resident, grew up knowing she was adopted as a baby in California. But she still had compelling questions about her identity that her adoptive parents couldn’t answer.

Finally, the need to find answers led her to careers in journalism and executive recruitment, she said. Bradford eventually tracked down both of her birth parents. She also met her siblings.

People are realizing that closed adoptions do more harm than good, Bradford said, because adoptees tend to imagine one of two extremes about their birth parents — they’re either famous, exotic royalty or celebrities, or they’re villains with loose morals.

Secrecy tends to generate shame, Bradford said. It also deprives adoptees of their sense of identity, their sense of well-being and their birth family’s medical information.

“I believe in the power of sunlight,” Bradford said.