Public Has Right “to See What Is Going Into the Sausage Factory [of Litigation], Even if a Particular Sausage Is Never Made”
In Dawson v. Merck & Co., Inc., decided Monday by Magistrate Judge Peggy Kuo (E.D.N.Y.), Reuters sought to unseal exhibits accompanying a Nov. 2017 Daubert evidentiary motion filed in a drug liability lawsuit (related to Propecia); the lawsuit had been settled in Sept. 2018, and Reuters asked to unseal the document in Sept. 2019.
The court concluded that the documents were presumptively supposed to be open, because they were related to a summary judgment motion; and the court concluded that the settlement didn’t change that. Here’s the key passage:
Once filed on the docket, the presumption of access attaches to a document and does not disappear. To conclude otherwise would permit the parties in a case to summarily close the curtain on the public’s view into the judicial branch of government without the court’s ability to weigh the presumption of access against any countervailing interests. The continuing presumption of access allows the public to see what is going into the sausage factory, even if a particular sausage is never made.
For watchdogs who focus not on the immediate news of the day but take a longer view of the judicial process, the Court’s ruling alleviates the need to constantly monitor docket filings in real-time and race to make requests to unseal before the parties settle. Reuters claims to be in such a situation, as it seeks information in the Documents for reporting not only on Propecia but also the role that courts have played in the course of the years-long nationwide litigation concerning the drug. (See Reuters Article “Court let Merck hide secrets about a popular drug’s risks.”)
Even in a fast-moving world, a presumptive right to access should not be fleeting, lasting only as long as the parties wish it to exist. The disappearance of a case or controversy for the court to decide does not mean that its existence at some point and the parties’ conduct of that dispute are no longer newsworthy.
And the broader discussion:
Defendants … argue that because the c
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