by Michael Nevradakis, Ph.D., Childrens Health Defense:
Every year, the process of discovery in lawsuits reveals evidence of harms committed by pharmaceutical, agricultural, chemical, industrial and other corporate interests. But courts can seal this evidence from public view, often at the cost of public health.
“Discovery,” a process by which evidence is uncovered during lawsuits, has often succeeded in exposing corporate malfeasance to the public, including evidence of hazards from a wide range of products.
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But too often, evidence unearthed through the discovery process is sealed away for years, even decades, posing unnecessary and avoidable public harm.
According to investigative journalist and former congressional staffer Paul D. Thacker, the discovery process is broken and in need of reform.
In a Substack post last week, Thacker cited several instances where discovery brought vital information about drugs and other harmful products to the public’s attention — in some cases after that information had been concealed for years.
“Pretty much any day of the week, lawyers locked in litigation exchange documents in a process called ‘discovery,’” Thacker wrote. “These documents are only released to people who have signed a protective order that maintains the documents’ secrecy, but that allows each side in the lawsuit to explore if their legal opponent is being honest.”
Part of the reason for this, Thacker said, stems from a 1984 U.S. Supreme Court ruling that a protective order prohibiting a newspaper from publishing information it acquired through discovery did not violate the First Amendment.
Thacker also highlighted corporate practices, such as the ghostwriting and corporate management of “scientific research,” as factors that contribute to limiting the public’s knowledge about corporate malfeasance.
In an exclusive interview with The Defender, Thacker also described how special interests have hampered proposed federal legislation intended to make it easier to publicize discovery documents:
“There’s no one really wanting that [disclosure of discovery] to happen. There are only a few small interests even aware that this stuff is going on, [so] this stuff remains secret. There’s no constituency lining up in D.C. to make court documents public.”
Litigation is critical to uncovering evidence of “dangerous products,” Thacker said, because discovery “can uncover evidence that a company’s product is dangerous — maybe even signs that company executives knew this and hid these dangers.”
“Making these documents public can have a dramatic impact on public health,” he said.
Thacker told The Defender this is typically a slow process, during which the products under investigation remain on the market. He described the typical timeline as follows:
“A product comes on the market. Within 5-6 years, we find out that there’s problems with it. Lawyers sue. Another 3-4 years later — with the product now on the market for at least eight years — we find out through the court documents that the product’s bad. That’s the typical, classic timeline we deal with.
“What often happens is, these documents are sealed. Lawyers for the plaintiffs are simply trying to get money for their clients and then move on. Another lawsuit follows 3-4 years later, and then the documents are finally made public.”
‘What happens in the American court system has global significance’
According to Thacker, several large-scale settlements in lawsuits against Big Pharma, Big Tobacco and major corporations illustrate the importance of court documents.
Thacker cited the example of the 2014 revelation that glyphosate, the key active ingredient in Monsanto’s herbicide Roundup, was a probable human carcinogen. Through lawsuits filed against Monsanto, discovery documents were published online in what became known as the “Monsanto Papers.”
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