Tort Victims' Disclosure Duties
Posted: 29 Mar 2022 Last revised: 8 Apr 2022
Date Written: February 11, 2022
Do tort victims ever have duties to disclose the wrongdoing they suffered? This unanswered question demands our prompt attention given two recent trends: the prevalence of non-disclosure agreements concealing injustices such as sexual wrongdoing and police misconduct; and a new wave of sunshine-in-litigation laws attempting to curb confidentiality in at least a dozen states, from Tennessee to California. The argument behind such laws has been that they recognize situations in which the public interest in knowing about harmful behavior outweighs plaintiffs’ personal interests. But, to date, scholars and policymakers have failed to identify the optimal mechanism for curtailing the widespread practice of confidentiality in tort settlements.
This Article is the first to fill this crucial gap, conceptualizing and delineating a limited disclosure duty imputed to tort plaintiffs. To do so, the Article creates a taxonomy of existing sunshine laws, arguing that current legislation has fallen short of effectively addressing the problem of keeping valuable settlement information under wraps. Existing laws have been reactive, piecemeal, and subject matter-based, resulting in both over- and under-inclusiveness. Instead, the Article argues, sunshine laws should target wrongs arising from social injustice, which breed the most significant tension between the interests of individual litigants and the public.
In the context of social injustice torts, the Article advocates for imposing a duty of disclosure on plaintiffs. It contends that plaintiffs are best situated to report the injustices committed against them. Thus, when victims seek to use the public court system to vindicate a right of action against their wrongdoers, it is appropriate to condition their action on a requirement to disclose any information of public interest underlying their claim. However, the Article prescribes ways to combat a potential chilling effect on victim reporting and suggests limiting this disclosure duty to four categories of wrongdoers which pose the highest risk to other litigants and to the public. These categories include: (1) repeat wrongdoers, (2) disproportionally powerful wrongdoers, (3) organizations, and (4) public entities. Drawing on these categories to impute a disclosure duty to plaintiffs in torts arising from social injustice, the Article argues, will allow society to maintain the practice of confidential settlements for the benefit of individual victims, without carving an unacceptable exception to democratic transparency.
Keywords: Settlement, Confidentiality, NDAs, Torts, Sunshine-in-Litigation Laws, Social Justice, Sexual Wrongdoing, Police Misconduct, Privacy, Transparency
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