Guns, trade secrets and the public’s right to know

July 13, 2016

A stark battle between corporate and public interests is taking place in a courtroom in Bridgeport, Connecticut, where the families of 10 children killed in the 2012 massacre at Sandy Hook Elementary School are suing Remington Arms, the company that makes and sells the semi-automatic weapon used by the killer. The fight is over Remington’s marketing and sales information. Last spring, Connecticut Superior Court Judge Barbara Bellis refused to dismiss the families’ suit, which claims Remington is liable for the children’s deaths because it disregarded the unreasonable risk of entrusting a military-style weapon to civilians and violated Connecticut’s trade practices law. Though Bellis found only that she has jurisdiction to hear the case – rejecting Remington’s argument that the federal Protection of Lawful Commerce in Arms Act deprives her of jurisdiction – she set a trial date and ordered discovery to proceed.

Remington does not want its confidential corporate information to be exposed to competitors. In a July 5 motion for a protective order, the company claims that competitors will jump on documents revealing Remington’s proprietary market research, customer demographic and satisfaction surveys, branding and promotional strategies, sales numbers and engineering designs. Access to such information is restricted even within Remington, according to an affidavit from the company’s senior vice-president of sales and marketing, and its public disclosure “will directly harm Remington both competitively in the marketplace and financially,” the filing said.

Remington’s lawyers at Swanson Martin & Bell and Diserio Martin O’Connor & Castiglioni emphasized that they are not asking for a blanket sealing order or restrictions that would impede prosecution of the plaintiffs’ case, but just ordinary protection for “plainly proprietary” corporate documents.

I have argued that protective orders shielding corporate documents are all too ordinary, even in cases of great interest to people other than those involved in the litigation. In this case, as the families’ lawyers at Koskoff Koskoff & Bieder said in their July 12 brief opposing a protective order, there is a compelling public interest in disclosure of Remington’s marketing and sales information. When health and safety are at stake, they said, “preserving gun industry secrets and strategies is not in the public interest.”

Besides, according to the families, Remington’s assertion of a competitive disadvantage if the documents are disclosed doesn’t hold up because the material is from 2012 or earlier. And besides, they argue, the whole point of their case is to hold the company responsible for marketing semi-automatic guns to people who have no business owning them.

“The Remington defendants ask the court to order the plaintiffs to keep their secrets, in the name of preserving Remington’s competitive advantage among sellers of AR-15s,” the plaintiffs’ brief said. “For plaintiffs, such conditions are repugnant. Remington did not become the country’s leading seller of military weaponry to civilians by accident. It ascended to that position through its calculated marketing and pursuit of profit above all else.”

As the brief mentions glancingly, disputes about whether corporate documents should be disclosed usually take place at a later stage of litigation, after the filing of motions based on documents produced under the cloak of a protective order. But the families suing Remington don’t want Judge Bellis to delay consideration of the public’s right to know what the company’s strategy for selling semi-automatic weapons was and how successful that strategy has been. As The New York Times has reported, most suits against gunmakers don’t get as far as this case has. The plaintiffs seem to be trying to take full advantage of the rare opportunity to get hold of internal corporate materials from a gunmaker.

After this year’s spate of mass murders, including horrific attacks in Orlando and San Bernardino in which shooters used military-style weapons similar to the one at issue in the Sandy Hook tragedy, it’s hard to imagine a matter of deeper public interest than the marketing and sale of guns. And regardless of whether you believe in unfettered gun rights or stricter gun control, you have to acknowledge that Remington’s internal documents will inform the national discussion.

Remington counsel James Vogts of Swanson Martin told me Remington doesn’t comment on ongoing litigation but will be filing a brief Monday “in which its position will be more fully explained.” I’ll be interested to see what Vogts and his co-counsel come up with, but if their best argument is that five-year-old sales and marketing material will be of some value to competitors, I hope Judge Bellis refuses to seal the documents.

Facts matter in the gun debate. We should be allowed access to the truth, whatever it is.

(Reporting by Alison Frankel)

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