Transparency as Justice: The Ethics of Public Attorneys and Judicial Seals

Abstract

In 2004, the State of West Virginia settled a lawsuit against Purdue Pharma LP accusing the company of pushing pills by understating the addictive effects of OxyContin. As a result, the judge in the case sealed his ruling denying Purdue’s motion to dismiss. The seal was not vacated until the United States was enveloped by the opioid crisis twelve years and 245,000 overdose deaths later. The pattern nearly repeated itself in 2019 until the United State Court of Appeals for the Sixth Circuit vacated a judicial seal in In re National Prescription Opiate Litigation, allowing press access to information in discovery and in the pleadings. Such seals in mass products liability cases stretch back decades, but they are getting renewed attention based on the Sixth Circuit’s pattern tightening requirements for such seals in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan. This article addresses the duties of public sector attorneys in situations involving judicial seals of information relevant to the public health and safety. Although the Supreme Court has held that seals may only issue after the trial court balances the public interest in disclosure against the private interest in confidentiality, courts typically grant an uncontested motion to seal without performing it. Because the public interest is in favor of such disclosures — particularly where the government is a party — government attorneys have a duty to ensure the public release of such data. Thus, reform is needed through the imposition of legal or ethical requirements that ensure this result and, by extension, require public servants to protect the public.