II 111th CONGRESS 1st Session S. 537 IN THE SENATE OF THE UNITED STATES March 5, 2009 Mr. Kohl (for himself and Mr. Graham) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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.

1.

Short title

This Act may be cited as the Sunshine in Litigation Act of 2009.

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:

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. .

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.