T.K. Kim Nov. 25, 2013, 11:06pm

CHARLOTTE, N.C. (Legal Newsline) - As the senior vice president of the First Amendment Center and veteran journalist, Gene Polcinski has begun noticing a troubling trend in recent years in civil trials. After years of a general move towards openness in court proceedings on the state and federal level, he has seen a shift.

"I think there is an increasing tendency (on the part of judges) to grant litigants' request to close trials, and I hope that does not flip this presumption of openness we've established over the last 30 years," Polcinski told Legal Newsline in a recent telephone interview.

In the cases of civil trials, Polcinski said there has been almost a "rote" request on the part of some lawyers to close trials on the grounds of privacy or trade secrets.

These were the same grounds lawyers in a recent bankruptcy trial in the Western District of North Carolina pointed to in requesting certain testimony be closed off to the public, the subject of which is now a lawsuit involving Legal Newsline.

In August, attorneys for Legal Newsline appealed a U.S. bankruptcy court judge's decision to close off testimony and portions of the record of several witnesses speaking about questionable claims filed by asbestos plaintiffs during the ongoing bankruptcy trial for Garlock Sealing Technologies. The trial, which ended in August, will determine the estimated liability of the company for current and future asbestos claims.

"The public needs to have confidence in the courts and that confidence is best bolstered with courts operating as transparently as possible," Polcinski said speaking generally.

To try and limit the company's liability, Garlock attorneys asserted that some plaintiffs, taking advantage of confidentiality provisions enacted for special trusts established to pay claimants who came into contact with asbestos, are using the provisions to allow them to sue multiple defendants while using the same argument that each respectively was the cause of their illness.

Legal Newsline filed its motion after Judge George Hodges previously denied a Garlock motion to remove confidentiality designations from evidence relating to the trust claim in addition to a Legal Newsline motion filed shortly after the judge closed his courtroom during the testimony of a law professor speaking about fraud and abuse on the part of claimants.

Lester Brickman, a professor at Benjamin N. Cardozo School of Law at Yeshiva University in New York, said during unsealed portions of his testimony that certain confidentiality provisions enacted for trusts established to pay claimants who came into contact with asbestos caused significant transparency issues preventing Garlock from cost-effectively ferreting out bogus claims. Brickman authored a report on fraudulent asbestos claims and has testified before Congress on the issue. Brickman said some plaintiff law firms routinely planted false memories into their clients.

At trial, he cited a memo by the law firm Baron & Budd distributed to claimants that detailed the kinds of information defense attorneys would or would not be privy to. The memo stated Garlock by name and made mention that the company manufactured gaskets.

A Legal Newsline reporter present at the trial objected to the closure requesting that the judge delay Brickman's testimony until after the company's lawyers had a chance to argue for full media and public access to all of Brickman's testimony.

Hodges overruled the request closing the courtroom for the rest of Brickman's testimony, which continued on for approximately three more hours. Following Brickman's testimony, the judge reopened the courtroom to the public and media.

One tort reform advocate called the judge's move "highly unusual."

"The closure violates the Bankruptcy Code's provisions for public access, and appears designed to hide public disclosure of evidence of asbestos trust fraud," said Ted Frank, the president and founder of the Center for Class Action Fairness and a regular contributor to Overlawyered.com.

In a written order explaining his decision denying the Legal Newsline motion, Hodges stated several factors including the circumstances of certain asbestos plaintiffs' cases, plaintiffs' particular exposures, "how the law firms responded to discovery, the questions they asked their clients in so responding, and how the law firms approached settlement negotiations," amounted to "trade secrets, confidential business information, and attorney-client privileged information about which the parties involved have significant privacy rights. The court has concluded that those rights outweigh the public's interest in those matters." In the decision, the judge stated that the fact that the hearing "is not a dispositive proceeding," was a consideration. "The closing of the proceedings has been narrowly drawn and has resulted in the 'public' being excluded only for a very small portion of the proceedings. The proceedings have otherwise been open to the public."

For Polcinski, the judge's rationale that the portions closed weren't dispositive seemed contradictory. "I think that's sort of like asking the public to eat a cake and then giving out the recipe while leaving out a major ingredient. It's not dispositive in a legal sense, but it's very important in a public sense to weigh (the information that was sealed)."

One of the central questions that will help establish how much Garlock will owe the claimants revolves around whether Garlock products, many removed decades ago, and no other sources of asbestos, led to cases of mesothelioma. Hodges will ultimately decide the estimated liability of the company for current and future asbestos claims and how much money the company will need to devote to a trust to escape bankruptcy.

Currently the matter of unsealing the testimony at trial is before Judge Max Cogburn of the Western District Court of North Carolina. Opening briefs are expected to be filed in late December.

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