Shielded Documents
Trial Lawyers Try to Keep Legal
Proceedings from Public View

By Harvey Kronberg
Editor's Note: The veil of secrecy will remain closed in the Texas tobacco case if the five lawyers that represented the state in the historic $17 billion settlement have their way.
On September 7, the lawyers asked the federal court in Texarkana to impose a confidentiality order effectively shielding documents, information and other materials from public scrutiny.

Attorney John Cornyn angrily responded in a prepared statement, calling the actions “unprecedented” and “misguided”. “I will not agree to secret court proceedings,” he said.

“The lesson of Texas’s controversy over legal fees in the tobacco case – from the Marc Murr debacle until today—is that secrecy is the enemy of the public interest,” said Cornyn. ‘Nonetheless, these lawyers seek an order that, ‘information shall not be disclosed, directly or indirectly, to any member of the press or press representative, without further order of this Court,’ Cornyn said. “They (the lawyers) also seek to treat documents as ‘non-public information’ for purposes of the Texas Open Records Act and/or the Texas Public Information Act.’ This perversion of the Open Records Act must not be allowed to shield lawyers who don’t want their activities scrutinized in the light of day,” said Cornyn.

“The proposed confidentiality order also seeks to have the courtroom cleared of any observers should any documents be presented in court,” said Cornyn. “Under this procedure, even members of the public and press would be removed and unable to hear or see the evidence.”

Cornyn spokesman Ted Delisi claimed that the documents belong to the client in the litigation. Since the client is the State of Texas, documents and materials should not be shielded by the fiat of a federal judge, he said.

Attorney Michael Tigar, who represents the five attorneys, was outraged at Cornyn’s press release and attacked the Attorney General’s position on a number of fronts. Cornyn misrepresented the role of the proposed confidentiality order, argued Tigar, noting the order is modeled after the same one used in the original litigation. Far from cutting off the public’s right to see or know what happened, the confidentiality order works to create an orderly environment for the release of materials, Tigar said.

During the pre-trial phase of the tobacco litigation, according to Tigar, depositions were taken that included proprietary information as well as medical information. In addition, some witnesses were promised that their testimony would not be disclosed unless used in open court, he said.

Thus, the confidentiality order screens the information until the judge rules on the relevancy and the public nature of the material, Tigar argued. Only those things that are irrelevant to the ruling would have any claim to secrecy, noted Tigar, adding “a protective order is a mechanism to smoke out the truth”.

Furthermore, Tigar said the press has standing in federal court to argue that the veil of secrecy is interfering with the public’s right to know.

Tigar said he met with Cornyn in March of last year and told the Attorney General that if “they wanted to know how many depositions were taken, what they cost and what they found out, we stand ready to produce the information. Just give it to us in the form of a discovery request.

“After all, there are third party privacy interests involved,” noted Tigar. “Some of the information is under seal in other cases. However, rather than obtain the information through an orderly judicial process, Cornyn would rather fight the civil war than resolve the issue,” Tigar said.

Finally, Tigar disputed Cornyn’s contention that all of the documents in the case belong to the client. He argued that it is well established that a lawyer’s work product belongs to the attorney and not the client. To illustrate, Tigar alleged that the Attorney General received 20% of his campaign contributions in 1998 from members of such groups as Texans For Reasonable Legal Fees and Texans For Lawsuit Reform. Tigar, not so subtly, questioned whether the Attorney General’s posture on tobacco lawyer fees was political.

Yet, when Andrew Wheat of Texans For Public Justice did a public information request seeking “copies of all paper or electronic correspondence between the Attorney General’s Office and (attorney Pete ) Schenkkan and/or Texans for Reasonable Legal Fees”, the request was denied based, at least partially, on the fact that the materials were attorney work product.

Editor's note: Judge Folsom has advised the 5th U.S. Circuit Court of Appeals that he expects to issue several long-awaited rulings by November 5.

Kronberg is the editor and publisher of Harvey Kronberg’s Quorum Report .

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