There are some things we know nothing about until someone sues someone else.

(I’ll forgive you if you’re thinking about marital disputes…)

In the newsgathering context, this is extremely important. Well-heeled interests make a regular practice of hyper-secrecy as a way to preserve competitive advantages.  Litigation often provides the only vehicle for reporters to find stories on poorly understood industries who operate behind a veil of secrecy, hiding issues of extreme public interest.

Case in point: the New York Times’ recent story on the menopause drug franchise among major pharmaceuticals.  From the article:

The documents that have surfaced in the Wyeth cases offer a rare glimpse inside the file cabinets and hard drives of a major drug company. And the cases demonstrate the importance of litigation in detailing exactly how drug makers operate their businesses, says Dr. Jerome L. Avorn, a professor of medicine at Harvard Medical School who has written about the subject in The Journal of the American Medical Association.

“The information coming out in litigation helps us understand how a belief in a ‘protective benefit’ of estrogens on the heart was able to spread like wildfire through the medical community,” says Dr. Avorn, who is not involved in the Wyeth litigation.

If nothing else, this ought to remind us how threatening sealing orders are.  Litigation is often the only way we learn about matters of pressing public concern, and sealing orders threaten not only potential victims, but professional communities who rely on accurate information about industry practices and products.

Dr. Avorn’s article, “The Role of Litigation in Defining Drug Risks,” should push us to think very hard about a different aspect of the public’s interest in unsealing in the context of medical litigation.  Plenty of sealing cases accept the direct risk to the public as a dispositive public interest–doctor-patient sexual assault cases are the obvious example–but we should not hesitate to consider the derivative benefits to the medical community as well as a compelling rationale for unsealing.

As more Doe cases reach appellate review, I have to wonder if it would be possible for a news website to assert reporter’s privilege to protect the identities of online commenters.

Here’s how the argument would run.  The commenters are “sources” who provide information to the “reporter” in presumptive reliance on pseudonymity. The reporter “collects” the information via the comment platform of the outlet’s website. As local news sites in particular increasingly rely on community commentary to generate leads and developments in stories, this application of a reporter’s shield law may provide news sites with a way to protect contemporary newsgathering practices from being chilled by defamation suits.

More to come–this may bear thinking about.