By Sue Ambrose
The Dallas Morning News
Originally published July 26, 2014
Secrets wrapped up in lawsuits over the 2013 explosion of the fertilizer plant in West could keep valuable health and safety information hidden from the public forever.
Because a judge has approved confidentiality agreements requested by attorneys, even people who live in West may never find out much more about what happened. The agreements allow both sides to label as confidential virtually all information uncovered as the lawyers prepare for trial.
“I’ve read hundreds of these. I read them all the time,” said Richard Zitrin, a law professor who has testified before the U.S. Senate about secrecy in the courts. “These are some of the most outrageous examples I have ever seen. It is completely unlimited.”
Confidentiality agreements are common. But keeping secrets in lawsuits can have dangerous consequences for public health and safety. For decades, and across the country, products ranging from unsafe medicines to defective automobile tires and more recently, faulty ignition switches in cars made by General Motors, have all harmed the public while secrecy approved by the courts helped hide the dangers.
Information gathered before the West trials could include more details on injuries, safety testing of the fertilizer that exploded, what the city knew about the plant’s dangers, and how it had planned for emergencies. That information could help people learn how to avoid or better plan for such catastrophes. The West blast killed 15 and injured hundreds.
The Dallas Morning News contacted attorneys on both sides of the lawsuits.
John McCoy, a Wisconsin attorney defending Adair Grain, which owns the fertilizer plant, said the fertilizer manufacturers and the attorneys for the victims drafted the agreements. The other lawyers made sure the agreements “didn’t hamper our ability to do what we need in the case.”
Attorney Carlos Soltero represents West’s Czech Inn in seeking compensation for roof and other damage. He had not seen the agreements until The News asked him to review them.
“It is broadly worded, I’ll give you that,” said Soltero. “While it’s certainly possible … that there could be misuse” of such agreements, “it’s also very difficult ahead of time to identify every type of information that might be properly confidential.”
The city of West, said Mayor Tommy Muska, did not know about the confidentiality agreements before The News asked about them. In Texas, lawyers are not required to tell their clients if they sign such an agreement.
“We may never know why the plant blew up, but the lawyers may,” said Dustin Benham, a law professor at Texas Tech University School of Law. Or, he said, the lawyers suing “may turn up absolutely nothing.” That fact could remain hidden, too.
Legal scholars note that lawsuits are tried in venues paid for with taxpayer dollars. Benham said that in disasters such as West, in which a city blew up and hundreds of people were affected, the public ought to be allowed to follow the details of the case.
“I think the public would find it shocking that a court-sanctioned protective order keeps us from understanding what happened in West,” said Benham, who studies court secrecy and has written academic articles calling for reform.
Strict West agreements
Lawsuits began to stack up within days of the fertilizer plant explosion in West. There are now at least 15. The city of West and hundreds of individuals and businesses are suing Adair, ammonium nitrate fertilizer manufacturers CF Industries and El Dorado Chemical Co., and suppliers. Adair also has sued the fertilizer manufacturers and the suppliers.
In court motions last week, the fertilizer makers pointed the finger back at Adair and the city, saying West didn’t train its firefighters properly and Adair didn’t store the fertilizer safely.
Those suing want compensation for property damage, injuries or the deaths of family members. Among their claims: The ammonium nitrate that exploded was “unreasonably dangerous” and was sold without adequate warnings.
State District Judge Jim Meyer, who declined to comment, has consolidated the cases for the pretrial process and approved the secrecy agreements. Lawyers are exchanging information to build their cases. Among the provisions of the agreements:
A “confidential” stamp can be placed on virtually anything. “A Designating Party may designate material as ‘Confidential Material’ based upon a reasonable belief” that the material is a trade secret or “is otherwise confidential,” the first agreement says.
That last phrase is too broad, said Zitrin, a law professor at the University of California Hastings. “It defines ‘confidential’ as anything the parties say is confidential,” he said. “Which is no definition at all.”
When a party objects to the labeling of something as confidential yet the other side persists, the party that objected must spend the time and effort to file a motion asking the judge to rule on the matter. And lawyers tend to err on the side of marking items “confidential” whether or not they merit it, said Texas Tech’s Benham.
All “confidential” documents have to be destroyed or returned to their original owners within 90 days of a judgment or settlement. This means if another business storing ammonium nitrate exploded, for example, attorneys would have to start investigating details about ammonium nitrate safety from scratch.
“The more you can put under the secrecy umbrella, the greater the potential of future harm to innocent people,” Zitrin said. “They are kept in the dark about what they need to know.”
In-house attorneys for the two fertilizer manufacturers are prevented from seeing certain private business information such as each other’s customer lists, although the outside attorneys the companies hire can see the information. This allows the companies to keep trade secrets from direct competitors.
Those who are suing, such as the explosion’s victims, also can’t see that information, although their lawyers can.
Protecting trade secrets is understandable, attorneys say. But this type of arrangement also cuts down the number of possible whistleblowers in a lawsuit because fewer people know details of the case, Benham said.
Steve Harrison heads a group of lawyers representing victims. He dismissed concerns that the confidentiality agreements would hide vital information.
“The stuff that comes out at trial is all going to be public record,” he said. “We are not going to let those things get swept under the rug or be kept secret.”
Experts note that the vast majority of lawsuits do not go to trial. Harrison said that if the cases are settled, what is and isn’t confidential will be discussed at that point.
When secrecy starts at the pretrial phase, it often extends into sealed settlements. Such was the case in lawsuits against GM.
At least 13 people have died in crashes related to faulty ignition switches on GM cars, and some of the automaker’s employees knew about the problem for more than a decade. Attorneys say secrecy agreements in lawsuits restricted the exchange of information about the cars, which could have lead to an earlier discovery of the problem.
The secrecy agreements in the West lawsuits are even broader than the agreement in the suit that uncovered GM’s ignition switch problems.
In that lawsuit, the pretrial agreement allowed the lawyer suing to share documents marked “confidential” with other attorneys who have similar clients but who were not a part of the same case. The West agreements confine the “confidential” material to the parties involved in the case.
And in the GM agreement, if there was an objection to GM’s designating something “confidential,” the burden was on GM to ask the court to keep it secret. In the West agreements, the reverse is true.
The GM cases have renewed calls for more openness in the courts. Zitrin helped draft legislation introduced this spring in Congress to limit secrecy in federal courts when the public’s health and safety is at risk. Similar bills have failed in the past in the face of opposition from business groups.
A State Bar of Texas committee has recently proposed new rules on confidentiality agreements to the state Supreme Court. Some feel the proposed rule could make secrecy in the courts more common.
The proposal offers up a model confidentiality order that lawyers can copy and use. The model order, like the West orders, does not allow sharing of information with other lawyers with similar clients.
It’s up to the state Supreme Court to decide to approve the rule. The panel hasn’t taken up the issue.
Why so much secrecy?
Attorneys say they have sound reasons to keep secrets.
Lawyers for the accused — often big companies — want to keep trade secrets from their competitors and certain financial information private. They also may want to keep any fault, or perception of fault, on their part out of public view. Lawyers for victims often consent to secrecy in hopes of getting quicker access to information, and more money for their clients.
If opposing lawyers didn’t make such arrangements, judges would be swamped with many decisions about what should or should not be kept secret, said Richard Marcus, a law professor at UC Hastings.
Judges frequently go along with confidentiality arrangements to keep cases moving quickly through the legal system.
“Judges, in their efforts to consolidate and resolve cases, often don’t understand fully that by signing these protective orders they are complicit in keeping the public ignorant about what’s going on,” said Zitrin.
Secrecy agreements are more necessary than ever as the volume of information has grown in complex cases of the computer era, some say.
Without the agreements, Marcus said, one could imagine “judges going through, nowadays, a terabyte of information to see if there’s something in there that might affect public safety.”
Tom Leatherbury represented The News as a rule on courtroom secrecy was being hashed out by the Texas Supreme Court starting in the late 1980s. “Courts don’t have to sign” confidentiality agreements, he said. “But that happens very infrequently in my experience.”
By then, secrecy in major cases linked to the public’s health made national headlines. Tobacco industry lawyers had tried to keep information on the harmful effects of smoking a secret in trials. Scores of cases that could have detailed the dangers of asbestos and exploding Bic lighters were settled and sealed.
The News reported in 1987 that more than 200 lawsuits — cases alleging everything from lead poisoning to botched surgeries — had been sealed since 1980 in Dallas County alone.
Those cases helped prompt the Texas Legislature to direct the state’s Supreme Court to adopt guidelines for courts to use to determine when lawsuit records, including settlements, could be kept secret.
After much debate, in 1990 the Texas Supreme Court narrowly passed a rule championed by Supreme Court Justice Lloyd Doggett, now a Democrat representing Austin in the U.S. House. The rule was designed to minimize secrecy in lawsuits when keeping those secrets could jeopardize the “general public health or safety.”
“Court records … are presumed to be open to the general public and may be sealed” only if there was a “serious and substantial” reason to keep them secret, the rule states.
Courts wrestled with how to decide what information is critical to the public’s health and safety until the issue was clarified in 1998.
Lawyers representing a man injured when his car’s tire treads separated sued the tire’s manufacturer. The lawyers convinced a judge that records about the tires should be open to the public. But the manufacturer resisted. The issue worked its way up to the state’s highest court.
By then, Doggett was off the court. Texas Attorney General Greg Abbott, now the Republican candidate for governor but then a Supreme Court justice, joined the majority in ruling that a judge has no obligation to review material for public health and safety concerns unless a party involved in the lawsuit, or an outside party, makes such a request.
That ruling allowed judges to sign off on secrecy agreements between attorneys without examining whether the information affects public health or safety.
Attorneys on either side in a case can object to secrecy, but rarely have motive to do so. An outside party can object to keeping something secret — but without knowing what the secrets are, it may be hard to convince a judge that it affects public health and safety.
“It’s difficult to find out how secret information impacts health and safety precisely because it is secret,” Benham said.