You know something’s haywire when a Catch-22 enters a courtroom, and plaintiffs start acting like defendants, and vice versa. So it goes these days in the Garlock bankruptcy proceedings. There, various asbestos defendants and a defense friendly media group (Legal Newsline) are trying to unseal documents admitted during trial and relied on by the trial court for its decision finding that some plaintiff’s firms failed to timely disclose facts regarding claims submitted to asbestos trusts in some particular cases. On the flip side, the asbestos plaintiffs are desperately trying to keep sealed the presently sealed portions of the record.
Some months ago, Legal Newsline appealed the bankruptcy judge’s order keeping the trial record under the seal. More recently, Ford moved the bankruptcy court for access to sealed materials. Now, according to plaintiffs, the bankruptcy judge lacks the power to grant any further relief to Legal Newsline. And, they say, Legal Newsline’s appeal likewise blocks the bankruptcy court from giving access to Ford (or anyone else) until the district court rules on the appeal.
In making their arguments for secrecy, plaintiff’s assert the need for Legal Newsline to pay for personal notice to a very broad group of persons, including apparently any persons whose records were referred to in the trial record that is presently sealed. Plaintiff’s, however, do not explain how that could be done when Legal Newsline cannot see the record. Joseph Heller and Captain Yossarian probably would be proud of the wonderful Catch 22 offered up by plaintiff’s for Legal Newsline. Plaintiff’s notice argument also is humorous because it certainly does not match the arguments they make when they assert they assert the enforceability of bankruptcy court plan confirmation orders entered without any form of prior notice to entities enjoined by the orders, such as co-defendants in the tort system.