Asbestos attorneys' motions to seal too vague to satisfy Garlock judge's order?

By Heather Isringhausen Gvillo | Oct 10, 2014

CHARLOTTE, N.C. (Legal Newsline) – In the midst of the unsealing process in the Garlock Sealing Technologies bankruptcy proceeding, a bankruptcy attorney said plaintiffs attorneys filing motions to seal were vague in their requests with the “clear goal” to cast a broad web, defying Bankruptcy Judge George Hodges’ orders to be specific.

Attorney David Christian, founder of the David Christian Attorneys law firm, said the motions to seal did not conform to Hodges’ strict requirements, which could cause a hiccup in the original plan for the unsealing process.

“The papers I’ve seen lead me to conclude that the showing so far does not meet the burden required,” Christian said.

Because he said the motions were vague in nature, requesting confidentiality or redaction of certain types of personal information – such as claimants’ names and settlement information – rather than specific documents, Christian said he is unsure whether the information will be released as originally promised.

Now, more than two weeks after Hodges was supposed to unseal all materials not subject to a motion to seal, only the debtors have provided the information as ordered, he said.

“I think there is and will continue to be a lot of posturing,” Christian said.

In fact, Christian said he expects appellate proceedings will apply legal rules which will impose high burdens on a document-by-document basis.

Some of the sealed evidence in the Garlock proceeding suggests fraud on the part of asbestos attorneys who withheld their clients' exposures to products made by other companies in order to maximize recovery in civil court against Garlock. In fact, Hodges ruled that Garlock's settlement and verdict history in civil court was not reliable because asbestos attorneys had manipulated the system.

In making his January ruling, Hodges ordered $125 million to be placed in Garlock's asbestos bankruptcy trust, roughly $1 billion less than plaintiffs attorneys had suggested.

Legal Newsline became involved when it was shut out of the courtroom during the estimation hearing. Legal Newsline appealed Hodges' decision to seal the evidence and recently won a victory at the district court level that spawned the current unsealing process.

According to Hodges' Protocol Order, any party wishing to keep documents under seal from the Garlock estimation proceeding were required to file a motion to seal in the U.S. Bankruptcy Court for the Western District of North Carolina.

More specifically, those motions must identify and describe each document or testimony it believes should be sealed or redacted and the reasons the materials should be kept confidential. They must also explain why no means less restrictive than sealing are available and how long the materials should be maintained under seal.

While Hodges’ order required specific requests with solid arguments, Christian suggested that the parties seeking confidentiality are not prepared to reveal the specific evidence from the estimation proceeding by naming precise documents.

“The parties are not ready to get down to brass tax or be seen as conceding too much,” Christian said.

Several parties filing oppositions to the motions to seal also pointed out that the motions to seal lacked detailed requests.

In Legal Newsline’s opposition filed Oct. 2, it notes that the debtors’ motion was the only one to comply with the requirements of the Protocol Order by identifying specific documents or portions of documents that should remain sealed or redacted and why no less restrictive alternatives are adequate.

The debtors added that none of the motions specify which documents the movants are referring to, therefore failing to satisfy a “heavy burden to overcome the presumptive right of access to bankruptcy court records.”

The Official Committee of Asbestos Personal Injury Claimants, or ACC, passed the burden of arguing confidentiality off to the plaintiffs’ firms, saying it is their interest and responsibility, Christian said.

In the ACC’s Sept. 11 motion to seal, it suggested the court to consider any particular interests asserted and arguments advanced by the claimants rather than specify documents it felt should be kept confidential.

However, the ACC did go as far as requesting an order sealing or redacting any information that would invade the “legitimate privacy interests” of asbestos victims if disclosed, such as medical information and personally identifying information.

With that being said, the committee said it had no further objections to unsealing the estimation proceeding.

“Subject to the protection of asbestos victims’ legitimate privacy interests, and without prejudice to any other issues asbestos victims and their counsel may raise, the Committee has no objection to unsealing the record of the estimation proceeding,” it states in its motion.

On the other hand, the plaintiffs firms claimed they didn’t know how the information they provided was actually used in the estimation proceeding. They argue that the court could have reached its decision without their clients’ information, meaning the documents would not be subject to disclosure according to the public’s right to access.

Therefore, they say only the committee, the debtors and the court truly knows what information was used and how it was used.

“Because the record is sealed and neither the injured individuals nor the claimant firms … participated in the estimation trial, they are unsure whether the information and documents that are subject of this motion to seal, though generally referenced within the scope of the protocol order and clearly subject to pretrial confidentiality orders, were actually made a part of the judicial record,” the plaintiffs firms claim.

As a result, they abdicated responsibility when it came to naming specific documents in their requests and stuck to specifying types of information they felt should remain confidential.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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