[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2449 Reported in Senate (RS)]






                                                       Calendar No. 935
110th CONGRESS
  2d Session
                                S. 2449

                          [Report No. 110-439]

   To amend chapter 111 of title 28, United States Code, relating to 
     protective orders, sealing of cases, disclosures of discovery 
         information in civil actions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 11, 2007

   Mr. Kohl (for himself, Mr. Leahy, and Mr. Graham) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

                             August 1, 2008

                Reported by Mr. Leahy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
   To amend chapter 111 of title 28, United States Code, relating to 
     protective orders, sealing of cases, disclosures of discovery 
         information in civil actions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Sunshine in Litigation Act 
of 2007''.</DELETED>

<DELETED>SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF CASES 
              AND SETTLEMENTS.</DELETED>

<DELETED>    (a) In General.--Chapter 111 of title 28, United States 
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 1660. Restrictions on protective orders and sealing of 
              cases and settlements</DELETED>
<DELETED>    ``(a)(1) A court shall not enter an order under rule 26(c) 
of the Federal Rules of Civil Procedure restricting the disclosure of 
information obtained through discovery, an order approving a settlement 
agreement that would restrict the disclosure of such information, or an 
order restricting access to court records in a civil case unless the 
court has made findings of fact that--</DELETED>
        <DELETED>    ``(A) such order would not restrict the disclosure 
        of information which is relevant to the protection of public 
        health or safety; or</DELETED>
        <DELETED>    ``(B)(i) the public interest in the disclosure of 
        potential health or safety hazards is outweighed by a specific 
        and substantial interest in maintaining the confidentiality of 
        the information or records in question; and</DELETED>
        <DELETED>    ``(ii) the requested protective order is no 
        broader than necessary to protect the privacy interest 
        asserted.</DELETED>
<DELETED>    ``(2) No order entered in accordance with paragraph (1), 
other than an order approving a settlement agreement, shall continue in 
effect after the entry of final judgment, unless at the time of, or 
after, such entry the court makes a separate finding of fact that the 
requirements of paragraph (1) have been met.</DELETED>
<DELETED>    ``(3) The party who is the proponent for the entry of an 
order, as provided under this section, shall have the burden of proof 
in obtaining such an order.</DELETED>
<DELETED>    ``(4) This section shall apply even if an order under 
paragraph (1) is requested--</DELETED>
        <DELETED>    ``(A) by motion pursuant to rule 26(c) of the 
        Federal Rules of Civil Procedure; or</DELETED>
        <DELETED>    ``(B) by application pursuant to the stipulation 
        of the parties.</DELETED>
<DELETED>    ``(5)(A) The provisions of this section shall not 
constitute grounds for the withholding of information in discovery that 
is otherwise discoverable under rule 26 of the Federal Rules of Civil 
Procedure.</DELETED>
<DELETED>    ``(B) No party shall request, as a condition for the 
production of discovery, that another party stipulate to an order that 
would violate this section.</DELETED>
<DELETED>    ``(b)(1) A court shall not approve or enforce any 
provision of an agreement between or among parties to a civil action, 
or approve or enforce an order subject to subsection (a)(1), that 
prohibits or otherwise restricts a party from disclosing any 
information relevant to such civil action to any Federal or State 
agency with authority to enforce laws regulating an activity relating 
to such information.</DELETED>
<DELETED>    ``(2) Any such information disclosed to a Federal or State 
agency shall be confidential to the extent provided by law.</DELETED>
<DELETED>    ``(c)(1) Subject to paragraph (2), a court shall not 
enforce any provision of a settlement agreement between or among 
parties that prohibits 1 or more parties from--</DELETED>
        <DELETED>    ``(A) disclosing that a settlement was reached or 
        the terms of such settlement, other than the amount of money 
        paid; or</DELETED>
        <DELETED>    ``(B) discussing a case, or evidence produced in 
        the case, that involves matters related to public health or 
        safety.</DELETED>
<DELETED>    ``(2) Paragraph (1) does not apply if the court has made 
findings of fact that the public interest in the disclosure of 
potential health or safety hazards is outweighed by a specific and 
substantial interest in maintaining the confidentiality of the 
information.''.</DELETED>
<DELETED>    (b) Technical and Conforming Amendment.--The table of 
sections for chapter 111 of title 28, United States Code, is amended by 
adding after the item relating to section 1659 the following:</DELETED>

<DELETED>``1660. Restrictions on protective orders and sealing of cases 
                            and settlements.''.

<DELETED>SEC. 3. EFFECTIVE DATE.</DELETED>

<DELETED>    The amendments made by this Act shall--</DELETED>
        <DELETED>    (1) take effect 30 days after the date of 
        enactment of this Act; and</DELETED>
        <DELETED>    (2) apply only to orders entered in civil actions 
        or agreements entered into on or after such date.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Sunshine in Litigation Act of 
2008''.

SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF CASES AND 
              SETTLEMENTS.

    (a) In General.--Chapter 111 of title 28, United States Code, is 
amended by adding at the end the following:
``Sec. 1660. Restrictions on protective orders and sealing of cases and 
              settlements
    ``(a)(1) A court shall not enter an order under rule 26(c) of the 
Federal Rules of Civil Procedure restricting the disclosure of 
information obtained through discovery, an order approving a settlement 
agreement that would restrict the disclosure of such information, or an 
order restricting access to court records in a civil case unless the 
court has made findings of fact that--
            ``(A) such order would not restrict the disclosure of 
        information which is relevant to the protection of public 
        health or safety; or
            ``(B)(i) the public interest in the disclosure of potential 
        health or safety hazards is outweighed by a specific and 
        substantial interest in maintaining the confidentiality of the 
        information or records in question; and
            ``(ii) the requested protective order is no broader than 
        necessary to protect the privacy interest asserted.
    ``(2) No order entered in accordance with paragraph (1), other than 
an order approving a settlement agreement, shall continue in effect 
after the entry of final judgment, unless at the time of, or after, 
such entry the court makes a separate finding of fact that the 
requirements of paragraph (1) have been met.
    ``(3) The party who is the proponent for the entry of an order, as 
provided under this section, shall have the burden of proof in 
obtaining such an order.
    ``(4) This section shall apply even if an order under paragraph (1) 
is requested--
            ``(A) by motion pursuant to rule 26(c) of the Federal Rules 
        of Civil Procedure; or
            ``(B) by application pursuant to the stipulation of the 
        parties.
    ``(5)(A) The provisions of this section shall not constitute 
grounds for the withholding of information in discovery that is 
otherwise discoverable under rule 26 of the Federal Rules of Civil 
Procedure.
    ``(B) No party shall request, as a condition for the production of 
discovery, that another party stipulate to an order that would violate 
this section.
    ``(b)(1) A court shall not approve or enforce any provision of an 
agreement between or among parties to a civil action, or approve or 
enforce an order subject to subsection (a)(1), that prohibits or 
otherwise restricts a party from disclosing any information relevant to 
such civil action to any Federal or State agency with authority to 
enforce laws regulating an activity relating to such information.
    ``(2) Any such information disclosed to a Federal or State agency 
shall be confidential to the extent provided by law.
    ``(c)(1) Subject to paragraph (2), a court shall not enforce any 
provision of a settlement agreement described under subsection (a)(1) 
between or among parties that prohibits 1 or more parties from--
            ``(A) disclosing that a settlement was reached or the terms 
        of such settlement, other than the amount of money paid; or
            ``(B) discussing a case, or evidence produced in the case, 
        that involves matters related to public health or safety.
    ``(2) Paragraph (1) does not apply if the court has made findings 
of fact that the public interest in the disclosure of potential health 
or safety hazards is outweighed by a specific and substantial interest 
in maintaining the confidentiality of the information.
    ``(d) When weighing the interest in maintaining confidentiality 
under this section, there shall be a rebuttable presumption that the 
interest in protecting personally identifiable information relating to 
financial, health or other similar information of an individual 
outweighs the public interest in disclosure.
    ``(e) Nothing in this section shall be construed to permit, 
require, or authorize the disclosure of classified information (as 
defined under section 1 of the Classified Information Procedures Act 
(18 U.S.C. App.)).''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 111 of title 28, United States Code, is amended by adding after 
the item relating to section 1659 the following:

``1660. Restrictions on protective orders and sealing of cases and 
                            settlements.''.

SEC. 3. EFFECTIVE DATE.

    The amendments made by this Act shall--
            (1) take effect 30 days after the date of enactment of this 
        Act; and
            (2) apply only to orders entered in civil actions or 
        agreements entered into on or after such date.
                                                       Calendar No. 935

110th CONGRESS

  2d Session

                                S. 2449

                          [Report No. 110-439]

_______________________________________________________________________

                                 A BILL

   To amend chapter 111 of title 28, United States Code, relating to 
     protective orders, sealing of cases, disclosures of discovery 
         information in civil actions, and for other purposes.

_______________________________________________________________________

                             August 1, 2008

                       Reported with an amendment