[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 623 Reported in Senate (RS)]

                                                        Calendar No. 64
112th CONGRESS
  1st Session
                                 S. 623

   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

                             March 17, 2011

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

                              May 19, 2011

                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 2011''.</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) In any civil action in which the pleadings state 
facts that are relevant to the protection of public health or safety, a 
court shall not enter, by stipulation or otherwise, an order otherwise 
authorized 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 unless in connection with such order the court has first made 
independent 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 
        past, present, or 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 order is no broader than 
        necessary to protect the confidentiality interest 
        asserted.</DELETED>
<DELETED>    ``(2) No order entered as a result of the operation 
paragraph (1), other than an order approving a settlement agreement, 
may 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) continue to be 
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) A court shall not approve any party's stipulation or 
request to stipulate to an order that would violate this 
section.</DELETED>
<DELETED>    ``(b)(1) In any civil action in which the pleadings state 
facts that are relevant to the protection of public health or safety, a 
court shall not approve or enforce any provision of an agreement 
between or among parties, or approve or enforce an order entered as a 
result of the operation of subsection (a)(1), to the extent that such 
provision or such order 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 described under 
subsection (a)(1) between or among parties that prohibits 1 or more 
parties from--</DELETED>
        <DELETED>    ``(A) disclosing the fact that such settlement was 
        reached or the terms of such settlement, other than the amount 
        of money paid; or</DELETED>
        <DELETED>    ``(B) discussing a civil action, or evidence 
        produced in the civil action, that involves matters relevant to 
        the protection of public health or safety.</DELETED>
<DELETED>    ``(2) Paragraph (1) applies unless the court has made 
independent findings of fact that--</DELETED>
        <DELETED>    ``(A) the public interest in the disclosure of 
        past, present, or potential public 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>    ``(B) the requested order is no broader than 
        necessary to protect the confidentiality interest 
        asserted.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(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.)).''.</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 
2011''.

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) Except as provided under subsection (e), in any civil 
action in which the pleadings state facts that are relevant to the 
protection of public health or safety, a court shall not enter, by 
stipulation or otherwise, an order otherwise authorized 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 
unless in connection with such order the court has first made 
independent 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 past, 
        present, or 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 order is no broader than necessary to 
        protect the confidentiality interest asserted.
    ``(2) No order entered as a result of the operation paragraph (1), 
other than an order approving a settlement agreement, may 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) continue to be 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) A court shall not approve any party's stipulation or request 
to stipulate to an order that would violate this section.
    ``(b)(1) In any civil action in which the pleadings state facts 
that are relevant to the protection of public health or safety, a court 
shall not approve or enforce any provision of an agreement between or 
among parties, or approve or enforce an order entered as a result of 
the operation of subsection (a)(1), to the extent that such provision 
or such order 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 the fact that such settlement was reached 
        or the terms of such settlement, other than the amount of money 
        paid; or
            ``(B) discussing a civil action, or evidence produced in 
        the civil action, that involves matters relevant to the 
        protection of public health or safety.
    ``(2) Paragraph (1) applies unless the court has made independent 
findings of fact that--
            ``(A) the public interest in the disclosure of past, 
        present, or potential public health or safety hazards is 
        outweighed by a specific and substantial interest in 
        maintaining the confidentiality of the information or records 
        in question; and
            ``(B) the requested order is no broader than necessary to 
        protect the confidentiality interest asserted.
    ``(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--
            ``(1) shall prohibit a court from entering an order that 
        would restrict the disclosure of information, or an order 
        restricting access to court records, if in either instance such 
        order is necessary to protect from public disclosure--
                    ``(A) information classified under criteria 
                established by an Executive order to be kept secret in 
                the interest of national defense or foreign policy; or
                    ``(B) intelligence sources and methods; or
            ``(2) shall be construed to permit, require, or authorize 
        the disclosure of information that--
                    ``(A) is classified under criteria established by 
                an Executive order to be kept secret in the interest of 
                national defense or foreign policy; or
                    ``(B) reveals intelligence sources and methods.''.
    (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 AND APPLICATION.

    The amendments made by this Act shall--
            (1) take effect 30 days after the date of enactment of this 
        Act;
            (2) apply only to orders entered in civil actions or 
        agreements entered into on or after the effective date of this 
        Act; and
            (3) not provide a basis for the--
                    (A) granting of a motion to reconsider, modify, 
                amend or vacate a protective order or settlement order 
                entered into before the effective date of this Act; or
                    (B) reversal on appeal of a protective order or 
                settlement order entered into before the effective date 
                of this Act.
                                                        Calendar No. 64

112th CONGRESS

  1st Session

                                 S. 623

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                              May 19, 2011

                       Reported with an amendment