    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                       SUNSHINE IN LITIGATION ACT OF 2009

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                       COMMERCIAL AND ADMINISTRATIVE LAW

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1508

                                   __________

                                  JUNE 4, 2009

                                   __________

                               Serial No. 111-40

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

           Perry Apelbaum, Majority Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

               Subcommittee on Commercial and Administrative Law

                        STEVE COHEN, Tennessee, Chairman

    WILLIAM D. DELAHUNT, Massachusetts   TRENT FRANKS, Arizona
    MELVIN L. WATT, North Carolina       JIM JORDAN, Ohio
    BRAD SHERMAN, California             DARRELL E. ISSA, California
    DANIEL MAFFEI, New York              J. RANDY FORBES, Virginia
    ZOE LOFGREN, California              HOWARD COBLE, North Carolina
    HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
      Georgia
    ROBERT C. ``BOBBY'' SCOTT, Virginia
    JOHN CONYERS, Jr., Michigan

                         Michone Johnson, Chief Counsel

                        Daniel Flores, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  JUNE 4, 2009

                                                                       Page

                                    THE BILL

    H.R. 1508, the ``Sunshine in Litigation Act of 2009''............     3

                               OPENING STATEMENTS

    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Chairman, Subcommittee on Commercial
      and Administrative Law.........................................     1
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Ranking Member, Subcommittee on
      Commercial and Administrative Law..............................     8

                                   WITNESSES

    Ms. Leslie A. Bailey, Public Justice
      Oral Testimony.................................................    20
      Prepared Statement.............................................    23
    Mr. Bruce R. Kaster, Kaster & Lynch, P.A.
      Oral Testimony.................................................    38
      Prepared Statement.............................................    40
    The Honorable Mark R. Kravitz, United States District Court for
      the District of Connecticut, on behalf of the Committee on
      Rules of Practice and Procedure and the Advisory Committee on
      Civil Rules of the Judicial Conference of the United States
      Oral Testimony.................................................    52
      Prepared Statement.............................................    54
    Mr. Sherman l. Cohn, Georgetown University Law Center
      Oral Testimony.................................................   114
      Prepared Statement.............................................   116

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Letters submitted by the Honorable Trent Franks..................     9

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Response to Post-Hearing Questions from Leslie A. Bailey, Public
      Justice........................................................   128
    Response to Post-Hearing Questions from Bruce R. Kaster, Kaster &
      Lynch, P.A.....................................................   137
    Response to Post-Hearing Questions from the Honorable Mark R.
      Kravitz, United States District Court for the District of
      Connecticut....................................................   143
    Letters from the Committee on Rules of Practice and Procedure of
      the Judicial Conference of the United States submitted by the
      Honorable Steve Cohen..........................................   155
    Letter of support for the bill, H.R. 1508, submitted by the
      Honorable Steve Cohen..........................................   175
                            OFFICIAL HEARING RECORD
          Material Submitted for the Hearing Record but not Reprinted

    Enclosures to Bruce R. Kaster's responses to the Questions for the
        Record from the Honorable Steve Cohen have been retained in the
        official Committee hearing record.

    Enclosures to Bruce R. Kaster's responses to the Questions for the
        Record from the Honorable Trent Franks have been retained in the
        official Committee hearing record.

    Letter from Bruce R. Kaster to the Honorable Mark R. Kravitz has been
        retained in the official Committee hearing record.

    Enclosure to the testimony of the Honorable Mark R. Kravitz, ``Sealed
        Settlement Agreements in Federal District Court,'' has been
        retained in the official Committee hearing record.

    Enclosures to the Honorable Mark R. Kravitz's responses to the
        Questions for the Record from the Honorable Steve Cohen have been
        retained in the official Committee hearing record.

    Letters from Cooper Tire and Rubber Company to the Honorable Steve
        Cohen have been retained in the official Committee hearing record.

                       SUNSHINE IN LITIGATION ACT OF 2009

                                  ----------

                             THURSDAY, JUNE 4, 2009

                  House of Representatives,
                         Subcommittee on Commercial
                                and Administrative Law,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 11:05 a.m., in
    room 2237, Rayburn House Office Building, the Honorable Steve
    Cohen (Chairman of the Subcommittee) presiding.
        Present: Representatives Cohen, Conyers, Maffei, Franks,
    Jordan, and Coble.
        Staff present: (Majority) Matthew Wiener, Counsel; Adam
    Russell, Professional Staff; and (Minority) Blaine Merritt,
    Counsel.
        Mr. Cohen. Thank you for your indulgence. We will have to
    break in a few minutes for votes. But this hearing of the
    Committee of the Judiciary Subcommittee on Commercial and
    Administrative Law will now come to order.
        Without objection, the Chair will be authorized to declare
    a recess of the hearing and will do so in a few minutes. I will
    now recognize myself for a short statement.
        Serious concerns have been raised that too many
    confidentiality orders have been entered in Federal civil cases
    and they have concealed from the public information about
    dangerous or harmful products, environmental conditions and
    business practices that the public has a desire or duty to--a
    need to know.
        H.R. 1508, the ``Sunshine in Litigation Act of 2009''
    responds to these concerns eliminating the circumstances under
    which a Federal court may restrict disclosure of information
    uncovered during discovery, during trial or other court
    proceedings which is relevant ``to the protection of public
    health or safety.''
        This hearing will give the Subcommittee an opportunity to
    consider this bill. Legislation introduced by Representative
    Wexler has key provisions that require Federal judges to do, as
    some of them already do which is consider the public interest
    before entering a confidentiality order that would conceal
    information ``relevant to protection of public health and
    safety'' uncovered during civil litigation.
        H.R. 1508 would not prohibit a court from entering a
    confidentiality order when confidentiality is due. It would
    simply require a court before entering such an order to find
    that the asserted interest and confidentiality outweighs the
    public's interest in disclosure and that order is no broader
    than necessary to protect that interest's balancing acts.
        H.R. 1508 raises two principle questions. First is whether
    if confidentiality orders entered in Federal civil cases too
    often conceal from the public important information about
    dangerous products, environmental conditions and business
    practices.
        And second, whether we should leave this issue of courtroom
    secrecy in the hands of the Judicial conference and we hope
    that they can help us with this or whether as Chief Judge Abner
    Mikva said in his testimony before the Judiciary Committee some
    time ago in the Senate, that the issue is a basic policy issue
    too important to leave to the unelected rule changers.
        So with that spoken and not being the words of the House, I
    look forward to receiving today's testimony.
        And I now recognize my distinguished colleague from
    Arizona, Mr. Franks, Ranking Member of the Subcommittee, for
    his opening remarks.
        [The bill, H.R. 1508, follows:]

        Mr. Franks. Well, thank you, Mr. Chairman. Thank you, Mr.
    Chairman.
        And thank all of you for being here.
        Mr. Chairman, I first want to thank the witnesses for their
    testimony today regarding H.R. 1508, the Sunshine in Litigation
    Act. Under Rule 26(c) of the Federal Rules of Civil Procedure,
    during discovery, a trial judge may exercise great discretion
    in issuing an order of which ``justice requires to protect a
    party or person from annoyance, embarrassment, oppression or
    undue burden or expense.''
        The judge may order that no disclosure or discovery may be
    had in certain areas or only on certain terms and conditions.
    The judge may also deny a protective order altogether.
        H.R. 1508 is the latest legislative proposal to change Rule
    26(c). In general, the bill greatly limits the discretion that
    a judge may exercise in granting a protective order by forcing
    the court to determine whether each piece of discoverable
    information is relevant to the protection of public health or
    safety.
        As a practical matter, Mr. Chairman, H.R. 1508 essentially
    compels each trial court to become a documents clearinghouse
    that will undoubtedly compromise the property and privacy
    interests of litigants.
        This legislation is opposed not only by the business
    community but by the Federal Judiciary and the American Bar
    Association as well. Now, while we get to hear from Department
    of Justice this year, the Bush Administration's Department of
    Justice also opposed the bill.
        Mr. Chairman, at this time I would ask unanimous consent
    that opposition letters from the American Bar Association,
    Professor Arthur Miller of the New York University School of
    Law, and the Coalition to Protect Privacy, Property,
    Confidentiality and Efficiency in the Courts be entered into
    the record.
        Mr. Cohen. Without objection, that will be done.
        [The information referred to follows:]

                                   __________

        Mr. Franks. Thank you, Mr. Chairman. Mr. Chairman, these
    groups oppose this bill, first, because it circumvents the
    regular order for promulgating changes to the Federal rules of
    civil procedures prescribed by the Rules Enabling Act.
        The Rules Enabling Act has worked well through the years
    because it is premised on the logical presumption that the
    courts are the institutional experts when it comes to
    understanding how rules of procedure are best developed and
    implemented.
        I currently see no reason to abandon that process for the
    dramatic changes contemplated by H.R. 1508. This bill would
    also increase the burden in costs of litigation.
        If confidentiality and privacy are not protected, litigants
    will be forced to oppose any document request that an opposing
    party makes for information which may be sensitive or
    confidential. It also forces judges to make findings of fact
    every time a protective order is requested.
        As Judge Kravitz wrote in his testimony from a previous
    hearing, ``Requiring courts to review discovery information to
    make public health and safety determinations in every request
    for a protective order no matter how irrelevant to the public
    health or safety, will burden judges and further delay pre-
    trial discovery.'' Well spoken.
        Mr. Chairman, I believe that this is a bad bill, and that
    there exists no empirical evidence demonstrating its necessity.
    It compromises the legitimate property and privacy interests of
    plaintiffs and defendants in our Federal court system while
    generating unnecessary expense and delay.
        And, again, I want to thank the witnesses for their
    participation today.
        And I thank the Chairman. And yield back the balance of my
    time.
        Mr. Cohen. Thank you, Mr. Franks.
        I am now pleased to introduce the first witness, and we
    will hear testimony from all the witnesses. But I introduce
    witnesses before--as they speak. I want to thank each person
    for participating.
        And without objection, your written statement will be
    placed in the record. And we would ask you to limit your
    remarks to 5 minutes. We have a lighting system; when it is
    green, you are on and you have got 4 minutes, more or less, to
    proceed. And yellow, you are in your last minute. And red, your
    time is finished, and you should quickly terminate your
    remarks.
        After each witness has presented his or her testimony, the
    Subcommittee Members will be allowed to ask questions. But we
    wait until all of the witnesses have done that then and go
    forth.
        Our first witness is Ms. Leslie Bailey. Ms. Bailey is a
    staff attorney at Public Justice, a national public interest
    law firm based here in Washington. Her practice focuses
    primarily on consumer rights and civil rights.
        She has been counsel in several successful challenges to
    abusive class action bans and Federal preemption defenses
    before state supreme courts and Federal courts of appeal as
    well as two successful challenges to abusive secrecy orders:
    Jesse v. Farmer's Insurance Exchange in the Colorado Supreme
    Court, and Davis v. Honda in California Superior Court.
        Thank you, Ms. Bailey, and we now take your 5-minute
    testimony.

             TESTIMONY OF LESLIE A. BAILEY, PUBLIC JUSTICE

        Ms. Bailey. Mr. Chairman.
        Members of the Subcommittee, thank you very much for
    inviting me to testify today on the problem of court secrecy.
        Public Justice is a national public interest law firm based
    here in Washington. We are not a lobbying group but we do have
    a special project dedicated to fighting unwarranted secrecy in
    the courts. And, in particular, we intervene in cases on behalf
    of members of the public and the press to object to overbroad
    secrecy orders.
        It is undisputed that much of the civil litigation in
    today's court is taking place in secret. The public courts are
    being used to keep smoking gun evidence of wrongdoing from the
    public eye.
        Court secrecy is at least as common today as it was in the
    1990's when the Firestone Tire scandal came to life. A recent
    Seattle Times series uncovered more than 400 cases in a single
    court that have been wrongly sealed, many involving cases of
    public safety.
        Just a couple of years ago, we learned that Allstate
    Insurance Company had implemented a program where it was
    intentionally underpaying its policyholders on legitimate
    claims in order to increase shareholder profits.
        It worked. The program resulted in record operating income
    during a time marked by some of the worst natural disasters in
    recent history, including Hurricane Katrina.
        The documents about this program were produced in
    litigation but were kept secret from the public pursuant to a
    protective order. And it wasn't until a lawyer who had seen
    them published his notes that the contents of the documents
    became known.
        The reason this happens, this reason the system is not
    working is that each party is pursuing her own narrow interests
    and no one in the process, in most cases, is looking out for
    the interests of the public.
        Defendants want secrecy for the most part because
    information about hazardous products and fraudulent business
    practices is bad P.R. and, in the short term, could lead to
    more lawsuits. Plus, it is cheaper to pay off individual
    victims, as long as you can keep evidence secret, than it would
    be to fix the product or change the practice.
        And plaintiffs, for their part, may well go into a case
    with the goal of making sure that what happened to them doesn't
    happen to anyone else. But then they are offered a settlement
    that can pay their medical bills or rebuild their homes if only
    they will agree to keep it quiet.
        Judges are overburdened, and as long as the parties agree,
    it is easy for a judge to sign off on secrecy in a lot of cases
    without considering the public interest. Meanwhile, we continue
    to drive unsafe cars, drink unsafe water, take dangerous drugs
    and put our money and our trust into institutions that are
    defrauding and deceiving us.
        That is the first and most obvious effect of secrecy. But
    there are other costs. Secrecy makes discovering the truth much
    more difficult and more costly.
        If a defendant can keep its wrongdoing secret, it won't
    have to pay as much to the next person who is injured. As long
    as it is cheaper to pay damages, there is no incentive to make
    the product safer. And cases that would easily be resolved if
    the truth came out, take years.
        Public Justice has fought several secrecy orders in recent
    years. And in some cases, though certainly not all, we have
    succeeded in making documents public that never should have
    been concealed in the first place.
        I want to briefly mention one case that I worked on. This
    was a case brought against Honda by Sarah Davis, a 17-year-old
    girl who was paralyzed in a crash.
        During trial, Honda's expert witness went to examine the
    evidence. This witness was observed intentionally wiping away
    marks on the seatbelt that would have proved that Sarah Davis
    was wearing her seatbelt during the crash.
        When the trial judge found out he issued a scathing 36-page
    sanctions decision, detailing his findings, and he awarded
    liability against Honda. A few days later, the parties reached
    a settlement. And as a condition of that settlement, the judge
    was asked to sign off on an order vacating and sealing his
    sanctions decision.
        Once that court record was sealed, this same expert witness
    was used all over the country by other car companies sued by
    other people who had been hurt in car crashes, and no one was
    allowed to ask him about what he had done.
        We challenged that sealing order, and we got it reversed.
    But for every success story, there are hundreds of equally
    harmful secrecy orders that remain in force. It shouldn't take
    intervention by a public interest group to make sure
    unnecessary secrecy is avoided.
        Hundreds of thousands of cases are handled by the courts
    each year and it is not possible for a small number of non-
    profits with a handful of lawyers to intervene in more than a
    tiny fraction of those cases, especially since challenges to
    secrecy orders offer no possibility of recovering attorneys'
    fees.
        We need another solution. Convenience is not a good enough
    reason for concealing information from the public. If Federal
    judges were required by law to weigh the public interest before
    entering a secrecy order, facts would come out, people's lives
    would be saved and the courts would be fulfilling their proper
    role as open, public government institutions.
        I want to thank the Subcommittee for focusing on this very
    important issue today.
        [The prepared statement of Ms. Bailey follows:]

                     Prepared Statement of Leslie A. Bailey

                                   __________
        Mr. Cohen. Thank you, Ms. Bailey. I appreciate your
    testimony. And you already told some of the smoking gun
    secrecy. The tobacco lobby and the NRA gotten together?
        Our second witness is Bruce Kaster. Since graduation from
    the University of Florida College of Law in 1975, Mr. Kaster
    has practiced in Ocala, Florida, as a civil trial lawyer.
        His practice is limited to cases involving defective
    products in state and Federal courts across the country,
    focused primarily on tire failure related cases. He has pursued
    personal injury litigation against major domestic and foreign
    corporations on behalf of clients injured or killed by
    defective products including cases against Firestone, Michelin,
    Uniroyal, Goodyear and others.
        Mr. Kaster is nationally recognized for his expertise in
    tire-related vehicular accidents. He has been featured and
    quoted in the New York Times, the Wall Street Journal and
    numerous other papers and magazines across the country and
    across the seas.
        His extensive experience and knowledge as a result of
    products liability litigation in state and Federal courts
    across the country gives him a unique perspective on the impact
    of secrecy in legal proceedings.
        Mr. Kaster, we appreciate your coming to testify before us.
    And would you please begin your testimony?

           TESTIMONY OF BRUCE R. KASTER, KASTER & LYNCH, P.A.

        Mr. Kaster. Thank you, Mr. Chairman, and Members of the
    Committee for this opportunity to speak on this very important
    legislation that I think is critical to protect the public.
        Having spent over 20 years in my career handling products
    liability cases, I have had the opportunity to see the human
    cost of secrecy in the courtroom. Literally, tens of thousands
    of Americans, if not hundreds of thousands, are killed or
    injured as a result of products that the manufacturer knows are
    defective but the public doesn't.
        I have struggled against secrecy in legal proceedings for
    over 20 years in state and Federal courts across this country
    and for the most time, unsuccessfully. In our present legal
    system the way it works, in practicality, is every time I
    request a document the manufacturer gets a protective order.
        I object and have never, ever had it denied. And then they
    place the documents under protection. Once they are placed
    under protection, I come back and ask that document protection
    be removed.
        I have never prevailed. And that is over 20 years of these
    cases in Federal courts across the United States.
        I appreciate Mr. Franks' comments on the burden on the
    courts and Judge Kravitz has made the same point. And I think
    it is a good point.
        But you have got to weigh the burden on the court for the
    lives of American citizens, and their only protection is from
    the Congress to overcome secrecy that has resulted in so many
    unnecessary deaths and injuries.
        I would say that one good example to help us understand how
    this system is abused are some documents that I have brought
    with me and they are in your packet. If you look at the
    document on the left, the Firestone Wilderness tires, the
    reason I brought that is to put the next document into context.
        We all are familiar with the Firestone recall and the fact
    that so many people were killed and injured as a result of the
    defective tires; biggest recall in the history of this country
    for tires.
        One of the major reasons that those tires failed was that
    they reduced the size of the wedge, and you will see it circled
    on the diagram. They did that as a cost-cutting measure; they
    cut it in half. Tread separations skyrocketed. People started
    dying.
        The document to the right is a redacted document that
    normally you wouldn't be able to see. But we tried a case in
    Mississippi and this document came into evidence. It came into
    evidence in the courtroom.
        Now, the document was protected. You will see a
    confidentiality stamp on the lower left-hand corner. I had
    opposed protection of this document before I even saw it
    because I knew what it was.
        I came back to the Federal judge and asked the Federal
    judge, ``Remove protection. This is not a trade secret
    document. It is dirty laundry.'' My motion was denied.
        The judge did rule that the defendant, Cooper Tire Company,
    could seal the courtroom. I thought that was unprecedented.
    Fortunately, they failed to do it. This document came into
    evidence in that redacted form.
        And what it tells us is that this manufacturer not only has
    a reduced wedge, it is worse than that. They don't have any.
    They don't even have the product that Firestone reduced that
    resulted in all these deaths.
        The public doesn't know this, and they wouldn't even know
    this document except for what I would say is a fluke. This is a
    type of document that is routinely protected, and I cannot get
    out from under protection that tells you the company did not
    put in this safety measure for cost considerations.
        Now, if the public knew that, they wouldn't want to buy
    these tires. They wouldn't want their family riding in a
    vehicle that has tires that don't have a basic safety
    component. But the public doesn't know. And there are literally
    thousands of these documents that I can't show you from every
    tire manufacturer that show what is wrong with their tires.
        Now, I concentrate on tires because that is mostly what I
    do. But I have seen the same type of documents from motor
    vehicle companies in litigation I have been involved in,
    lawnmower cases, you name the product. In every case I have
    ever been involved in, the manufacturer put every document they
    produced under protection even documents from other entities.
        And I have never been able to overcome that. Judge Kravitz'
    position, and I respect it, is come back to the judge and show
    the judge. I have done that. It doesn't work.
        In the real world, manufacturers use protective orders to
    hide the truth about the defects in their products, and it is
    unwarranted and unnecessary.
        I would say, finally, that in my experience, protective
    orders kill people. You have got to weigh the value of that
    against the burden on the courts. If we remove protection from
    documents that shouldn't be protected in the first place, the
    public is aware of which products are defective and which are
    not. They can make an informed decision. Right now they cannot
    do that.
        I respectfully request that this legislation go forward as
    drafted. I have some experience in Florida with somewhat
    similar legislation that is not, quite frankly, as good as
    this, but it is a step in the right direction.
        This is clearly an improvement and necessary. And I thank
    you.
        [The prepared statement of Mr. Kaster follows:]

                     Prepared Statement of Bruce R. Kaster

                                  ATTACHMENT 1

                                  ATTACHMENT 2

                                   0_________

        Mr. Cohen. Thank you, Mr. Kaster.
        Our next witness will be Mark R. Kravitz. Judge Kravitz was
    appointed in 2003 by President George W. Bush, U.S. District
    Court in the District of Connecticut.
        Previously, he was a partner at the law firm of Wiggin and
    Dana where he worked for nearly 27 years, most recently as
    chair of the firm's Appellate Practice Group. Before joining
    Wiggin and Dana, Judge Kravitz served as law clerk to Circuit
    Judge James Hunter, III of the U.S. Court of Appeals for the
    Third Circuit, and then to Justice William Rehnquist of the
    United States Supreme Court.
        From 2001 to 2007, he served as a member of the Standing
    committee on the Rules of Practice and Procedure in the United
    States Courts, the body that oversees the rules of procedure in
    evidence that apply in all Federal courts. During that period,
    he also served as the liaison member of the Advisory committee
    on Criminal Rules.
        June 2007, Chief Justice John Roberts, Jr. appointed Judge
    Kravitz to chair the Advisory committee on Civil Rules, the
    body that oversees the Federal rules of civil procedure.
        Thank you, Judge Kravitz. You may proceed.

       TESTIMONY OF THE HONORABLE MARK R. KRAVITZ, UNITED STATES
     DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, ON BEHALF OF
       THE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE AND THE
    ADVISORY COMMITTEE ON CIVIL RULES OF THE JUDICIAL CONFERENCE OF
                           THE UNITED STATES

        Judge Kravitz. Thank you, Mr. Chairman. And I appear today
    on behalf of both the Judicial Conferences committee on Rules
    of Practice and Procedure and the Advisory committee on Civil
    Rules, which I chair.
        I should say at the outset, no one is opposed to the
    concept that information that is injurious to the public health
    and safety should get in the hands of people who can fix that.
    That is not the issue here.
        This bill, therefore, has a good goal but its means are
    seriously flawed. And those means are likely to hurt rather
    than help.
        The Rules committee have studied this for years and we
    oppose it for really three different reasons. And I have to ask
    this Committee, and I would ask the witnesses themselves to
    distinguish here between what we are talking about.
        We have heard evidence of the Honda case. We have heard
    evidence of Seattle Times and 400 cases. Those are state court
    cases. What I want to hear is evidence of Federal courts
    abusing the process and not doing what the rule says it should
    do, which is only grant protective orders for good cause shown.
    And there is a huge body of case law.
        We have not seen any empirical evidence of that and the
    Rules committees rely on empirical evidence. But if this
    Committee has evidence of Federal judges abusing the process
    repeatedly, I want to know about that, and we will do something
    about it.
        Secondly, the burdens, again, I am not worried about me
    being burdened. Frankly, I have lots of things to do. But to
    the extent to which I spend my time looking document through
    document of truckloads of documents or electronic discovery,
    then other deserving litigants and critical issues are not
    going to get my attention. And, frankly, Mr. Kaster, whom I
    want to get those documents as quickly as possible is not going
    to get them in any time soon.
        So I would ask this Committee also to distinguish between
    two things. First, documents that come into evidence at trial
    or are filed with the court. Frankly, the courts have more
    severe rules than this legislation as Ms. Bailey points out
    that require those documents not to be sealed absent
    extraordinary circumstances.
        So the law that exists there is actually more stringent
    than this legislation and it covers all cases not cases dealing
    with public health and safety. So what we are dealing with
    really is the exchange of information in discovery.
        And I want to get that information to Mr. Kaster and his
    experts as quickly as possible so that they will tell me if the
    public health and safety is implicated because I am not going
    to be able to know that myself. The notion that there are
    smoking guns out there in roomful of documents and me not
    knowing anything about the case will stumble upon the smoking
    gun, I think, is naive to say the least.
        So courts have a well-developed body of case law that
    allows parties to come in and get modifications to the
    document. I cited the Zyprexa case. That is the case where
    Judge Jack Weinstein of the Eastern District of New York had a
    protective order, allowed information to get to the plaintiffs
    and their experts, under the protective order.
        And then a couple of years later after he knew more about
    the case and there had been motions, he then unsealed all that
    material that he had previously sealed and got it to the right
    people. And he did it under the existing law. And it happens
    all the time.
        So I think the burdens here--this is just going to slow
    down Mr. Kaster getting any information. It is going to
    increase the cost of litigation at a time when the lawyers and
    the public are concerned about the cost of litigation.
        And I don't think it is going to achieve the goal. And the
    reason I don't think it is going to achieve the goal is he is
    going to agree to a private agreement, not a protective order
    but a private agreement, that will have the same terms in it so
    he can get the information sooner.
        And so the legislation at the end will not achieve what it
    is designed to achieve, which is a laudatory goal that we all
    support.
        Thank you, Mr. Chairman.
        [The prepared statement of Judge Kravitz follows:]

              Prepared Statement of the Honorable Mark R. Kravitz

                                  ATTACHMENT 1

                                  ATTACHMENT 2

                                   __________

        Mr. Cohen. Thank you, Judge Kravitz.
        Our final witness is Sherman Cohn, without an ``e,''
    professor at the Georgetown Law Center since 1965. Professor
    Cohn specialized in the fields of civil procedure, professional
    responsibility and legal issues of a complimentary alternative
    and integrative medicine, of which he also lectures at
    Georgetown Medical Center.
        Before joining the Law Center faculty, he served as a clerk
    for Judge Charles Fahy of the D.C. Circuit and in the Appellate
    section of the Civil Division of the Department of Justice. He
    serves as the Administrator of Preview of U.S. Supreme Court
    cases from 1976 to 1979 as director of Continuing Legal
    Education of the Law Center from 1977 to 1984.
        Thank you, Professor Cohn. Will you proceed with your
    testimony? And turn on your microphone?

                     TESTIMONY OF SHERMAN L. COHN,
                    GEORGETOWN UNIVERSITY LAW CENTER

        Mr. Cohn. Thank you, Mr. Chairman. Thank you for the
    invitation and the opportunity.
        I came here with the idea that I would disagree with Judge
    Kravitz from his earlier testimony as I understood it. What he
    is talking about today I agree with, that this from the
    standpoint of discovery matters that are not brought to the
    judge's attention that a judge should not have to go through
    the thousands and sometimes hundreds of thousands of pages in
    discovery.
        That is what plaintiff's counsel should be there to bring
    to the judge's attention. And it is up to plaintiff's counsel,
    as Mr. Kaster pointed out, to bring that to the attention of
    the judge.
        I am just looking at it once it is at the judge's
    attention. I am also looking at it from the standpoint of the
    end of the case. When there is a settlement entered and a
    settlement that is conditioned upon secrecy and they ask for
    the Federal judge to put his imprimatur, the power of the
    Federal court behind that secrecy agreement.
        In that situation, it is the defendant who has interest to
    keep the matter a secret for reasons that this Committee and
    the Senate Committee have often heard. The defense counsel
    wants to keep his client. The plaintiff has a pot of gold that
    would not be as high or possibly would not be as high, that is
    what the plaintiff is told.
        And plaintiff's counsel gets a contingency fee based on the
    size of the pot of gold. Now, it may be that plaintiff's
    counsel is like Mr. Kaster and will let that go and be
    interested in the public interest. That has not been what I
    have seen on the occasions that I have seen it.
        That quite often plaintiff's counsel is torn between the
    plaintiff's counsel interest in his or her own welfare and the
    greater welfare of society. In law school, we try to say that
    while you have a loyalty to your client and, yes, you have to
    stay in business; you got to pay your rent, things like that.
    But you also have a loyalty to society.
        Where that doesn't occur and where the judge knows that
    there are issues of safety and health involved, then to then
    enter into a secrecy agreement which the judge signed so that
    behind it is the power of a sovereign United States, I think is
    wrong.
        Now, I want to address for just a moment the question of
    where this belongs. My view is that this issue belongs here in
    Congress. This is a question of social value. And it is not
    just a question of procedure.
        I would like to suggest that this comes very close to or
    into the category of effecting substantive law. And under the
    Rules Enabling Act, the Rules committee, no matter how wise
    they are, do not have power in substantive law.
        That belongs to Congress so that the issue however it is
    resolved and here I join Abner Mikva in his views, that this is
    an issue of balancing of social values. And balancing of social
    values is a legislative matter and Congress should however you
    come out, is the place where this ought to be resolved.
        Thank you very much for listening and I hope this is
    helpful to your consideration.
        [The prepared statement of Mr. Cohn follows:]

                     Prepared Statement of Sherman L. Cohn

                                   __________

        Mr. Cohen. Thank you so much. Now that we have completed
    our testimony, and I appreciate each of the witnesses, we will
    pause for questions.
        And I will first recognize Mr. Maffei and he will, if he
    would, and take the chair for a second. If Mr. Maffei would----
        Mr. Maffei. We will take it here.
        Mr. Cohen. Why don't you take it here? And he will take the
    chair, and he will have the first questions. So I yield----
        Mr. Maffei. Thank you, Chairman Cohen. As a new Member of
    the Congress, I am actually very honored to even be the chair
    pro tem of a Committee.
        First question I do want to ask Ms. Bailey. Judge Kravitz
    notes in his prepared statement that the empirical data on
    which the Judicial Conference relies in opposing H.R. 1508
    showed no evidence that protective orders create any
    significant problems of concealing information about public
    hazards. What is your response to that?
        Ms. Bailey. Well, my understanding of that data is that it
    was being accumulated during the same period of time in which
    people were dying from defective Firestone Tires. So I don't
    think that it is possible to account for all of the cases of
    secrecy, it is part of the nature of secrecy, that a
    statistical analysis is not going to come up with every case in
    which someone may have been injured due to secret documents.
        I think you actually need to look at real people and real
    cases.
        Mr. Maffei. During his oral testimony, Judge Kravitz talked
    about how a lot of these things are going on in state courts,
    and I couldn't help but notice both you and Mr. Kaster
    scribbling. So I do want your response to that.
        Is this really a problem more in the state courts than
    Federal courts?
        Ms. Bailey. Not to my knowledge. No. I like to talk about
    the Davis case because I worked on it, but in my written
    materials you will find examples of cases in Federal court
    where documents were improperly sealed or settlements were
    improperly sealed, including the Allstate case that I
    mentioned, which was in Federal District Court in Louisiana.
        Mr. Maffei. Mr. Kaster, same question to you.
        Mr. Kaster. Well, the case that I have used as an example
    today is just one of scores that I have been involved in in
    Federal court. I limited my comments today primarily to Federal
    court proceedings.
        For example in Mississippi where I followed exactly what
    Judge Kravitz suggested, let me say that I hold him in great
    esteem. If I had Judge Kravitz all the time, I wouldn't have
    this problem.
        But I don't have the same experiences as his empirical data
    tells you. I am in the real world. And in Federal courts,
    matter of fact you routinely get oppressive protective orders,
    and when I go back and challenge them with documents like this,
    they clearly shouldn't be protected. I have never won in 20
    years. So that is part of the real world that I live in.
        Mr. Maffei. Do you think the problem is that there is just
    no judicial scrutiny at all? How does----
        Mr. Kaster. There is some----
        Mr. Maffei. Describe how a judge approaches one of your
    motions.
        Mr. Kaster. There is no judicial scrutiny. I have even
    asked judges to just look at sections of the documents. As a
    matter of fact as we sit here, in the Federal court in Georgia
    today, I believe, the court is entertaining the very question
    that we are here about.
        I have gone back and pulled out just a sample of documents
    that I have asked the court to look at because they clearly are
    not trade secret or should be protected. That ruling may happen
    while I am sitting here today, which would be very ironic. If I
    were to win, it would be the first time in 20 years.
        What happens is the Federal judges or the Federal
    magistrates do not look at the documents; they enter a
    protective order. I look at them; I come back and challenge the
    documents that should not be protected that would protect the
    public interest and I never win.
        Mr. Maffei. But what is going on in their mind? Why would
    they never rule? I mean, obviously judges have all sorts of
    different backgrounds and stuff. But----
        Mr. Kaster. As I understand it, the view is this. You
    represent one client and you have what you need for that
    client. You do not represent the public at large, counselor.
    And I have actually had judges say that to me.
        I have a different view. This is actually against my own
    interest. If all of these documents become public, I happen to
    have a unique body of knowledge, and I know about documents
    that everybody else doesn't. One reason people hire me is that
    I have this unique knowledge.
        If all of the knowledge were out there and any lawyer could
    get it, then that would diminish my practice. So it is against
    my interest to do this, but when I went to law school I was
    taught, you have a public interest as well.
        And as I have put in my written statement, every client
    that I approach on this whose lost a child or family members or
    terribly injured, they allow me to pursue the public interest
    because they don't want the same thing to happen to someone
    else.
        And I pursue the public interest with the permission of my
    client. If I didn't have that, I would be caught in the trap of
    not being able to push those documents to become public because
    my client has what they need.
        And if I were selfish and decided to go that route, then
    Congress has to mandate to the courts, you have got to take on
    that burden if a lawyer won't do it.
        Mr. Maffei. Do you agree with Professor Cohn's comments on
    the interest of various----
        Mr. Kaster. We all agree that settlements should not hide
    the truth. That is, I think everyone here agrees to that. But
    that is not the problem. I have never had that as a problem.
        Mr. Maffei. Thank you Mr. Kaster.
        Judge Kravitz, I assume you have a different take on how a
    judge looks at a motion to open up these documents.
        Judge Kravitz. Yes, I think this discussion has been
    interesting for a couple of different levels. I mean, if in
    fact Ms. Bailey and Mr. Kaster have all these decisions of
    judges routinely rejecting their motions to open up documents,
    then they have to exist. And, in fact, Mr. Kaster said he is
    going to send me the Bradley decision, and I can take a look at
    it.
        But there are lots of decisions of judges opening up cases.
    And the key point that I think Mr. Kaster made, what you need
    to keep in mind is this, he got the document, and then he came
    back to the Federal court, and he could explain to the judge as
    was true in the Zyprexa case.
        But that is not what this legislation says. This
    legislation says before he even gets those documents, I have to
    do a document by document review without his assistance to try
    to figure out whether those documents are ``relevant to public
    health and safety.''
        The truth is I am not going to be able to do that. I think
    as Professor Cohn said, we need to get the documents to Mr.
    Kaster, and then he needs to come back either under existing
    law or some changes in the rules that we would certainly be
    willing to entertain, to get the protective order lifted with
    respect to that.
        But it can't be at the front end. That is the problem.
        Mr. Maffei. Thank you, Judge Kravitz.
        I now recognize the Ranking Member of the Subcommittee, Mr.
    Franks, for 5 minutes.
        Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman, I
    am observing some unprecedented common sense and dialogue
    between the witnesses here and it scares me to death. But it
    makes me think that perhaps there might be some middle ground
    here that perhaps, you know----
        Mr. Maffei. Don't worry, that is the judicial branch. We
    would never fall into any of that.
        Mr. Franks. You know, confidence like that is something one
    gets before they fully understand the situation, I suppose. But
    is it possible that the Rules committee or the entire Judicial
    Conference could craft a more narrow bill? That is the one
    suggestion that I would put forward.
        But let me ask you, Judge Kravitz, I kind of had a little
    epiphany in your last comment. You are saying, just for clarity
    here----
        Judge Kravitz. Right.
        Mr. Franks [continuing]. That in Mr. Kaster's case, even
    though the judge ruled against making some of the documents
    public, and you never know whether that was justified or not,
    that indeed, he got the documents that he asked for----
        Judge Kravitz. Absolutely.
        Mr. Franks [continuing]. And that the difference that this
    bill would make is that before he ever got the documents he
    would have to go over them with a fine-toothed comb, as it
    were, before he ever got them.
        Judge Kravitz. By myself. Without his assistance.
        Mr. Franks. See, I find that a stunning crux of the
    discussion here. And again, maybe I am misunderstanding, but it
    sounds like Mr. Kaster's comments here, I mean, he has been
    very forthright, and you have said that yourself. And maybe he
    has had some narrow-minded judges that he has dealt with.
        But isn't it true then, based on that, that if those same
    judges were forced to go through all of that data before Mr.
    Kaster had ever gotten it, that they would probably come to the
    same conclusion that it was, you know, if they--in other words,
    if I am a judge, and I am looking at this data, and I am going
    to try to move through it as quickly as possible.
        I am going to be much more deferential to a lawyer that
    comes in and says, ``Judge, there is a problem here. This is a
    safety issue for the public. Please look at this.'' I am going
    to look at that much more carefully.
        Judge Kravitz. Here is the thing, practically. In Mr.
    Kaster's example, it is the defendants who have the document.
    They are going to give them to me to look at presumably in
    camera so I can figure out whether they impact public health or
    safety.
        Mr. Kaster doesn't even have the documents. His experts
    don't have the documents. And I am going to make up my mind.
    And who is the person who is going to be telling me whether the
    documents are a bear on public health and safety? It is the
    defendant, in his example.
        So what we need to do is get the documents in his hands as
    rapidly as possible, get his expertise and then have him come
    back to the judge, if that is what he wants. And that is
    exactly what happened with Jack Weinstein in the Zyprexa
    litigation.
        And I really urge the Committee to take a look at that
    decision, because Judge Weinstein in that case, after having
    gotten--had a protective order and gotten the information out
    says, public access is now advisable.
        Now that he can figure out that--because the litigation
    involves issues of great public interest, the health of
    hundreds of thousands of people, fundamental questions about
    our system or approval and monitoring of pharmaceutical
    products and the funding of many health and insurance plans.
    Public and private agencies have a right to be informed.
        And that information got out there. And that is under the
    existing rules. So I don't think we need necessarily any new
    rules.
        But let me just say to Professor Cohn's point. There are
    things in this bill that are substantive, like the provision
    that a court can't approve an agreement that prevents people
    from going to a Federal agency with documents that bear on
    public health and safety.
        But the provisions of this that deal with protective orders
    and the time at which judges agree to protective order, that is
    a procedural question and the factors that a court is going to
    consider. And the Rules Enabling Act has been in existence for
    70 years and has worked extremely well for 70 years. It is
    going to be 70 years about next month, I think.
        And as to procedure, the Congress has deferred to us, and I
    would ask them to continue to do so. To the extent there are
    substantive things that deal with social policy like getting
    information to relevant agencies or even the sealed settlements
    offers which I do not personally oppose at all. There shouldn't
    be sealed settlements, frankly. Those are appropriate for the
    Congress and appropriate to enact.
        Mr. Franks. Well, thank you. Mr. Chairman, I am about out
    of time here. In fact, I am out of time as it looks like.
        But let just suggest to the full Chairman of the
    Committee--the Chairman of the full Committee, I should say.
    There may be an opportunity for reason to get the best of us
    all here.
        Where Mr. Kaster's comments were he has never won a
    situation like that may be where to focus our attention to
    where there is some type of appeals process or something that
    would overcome a recalcitrant or unreasonable judge that, you
    know, is simply not looking at the facts.
        If he has never won, one of two things. Either he is a
    really rotten lawyer and that doesn't occur----
        Mr. Conyers. He is going to share with me those decisions.
        Mr. Franks. He is going to explain that, but I just think
    that there may be an opportunity for some reasonable compromise
    here that would solve the problems of everyone on the--maybe I
    am wrong, again, I don't want to be too optimistic in an
    environment like this.
        But thank you, Mr. Chairman.
        Mr. Maffei. Thank you, Mr. Franks. Since the distinguished
    Member of the full Committee is here, am I right in
    understanding that you are not interested in asking questions,
    but you are here to observe and--you are interested in healing
    us.
        Mr. Conyers. My lips are sealed. [Laughter.]
        Mr. Maffei. Well, thank you to the Chairman. Then I will
    recognize the distinguished gentleman from North Carolina, Mr.
    Coble, for 5 minutes hoping that he doesn't take the full 5
    minutes, since we do have floor vote.
        Mr. Coble. Mr. Chairman, I will try to move it along.
        Judge Kravitz, let me put a two-part question to you.
        Judge Kravitz. Sure.
        Mr. Coble. If this bill were enacted, how would this impact
    the workload of the Federal Judiciary, A, and B, how would you
    determine what matters effect public health or safety? Is there
    case law or judicial doctrine from which judges might draw to
    determine that distinction?
        Judge Kravitz. Okay. Two things. First, the average case
    load of an active Federal judge is about 550 cases. That is the
    average.
        There are judges in California who have 1,000 cases. And
    the notion that they could then fish through document by
    document and get that information to Mr. Kaster in any time
    horizon that is reasonable, I think, is illusory.
        So I think, again, I am not worried about my burden of
    doing this. I am worried about other litigants who deserve our
    time and attention.
        Secondly, as to whether there is any existing case law,
    there is existing case law under the good cause standard of
    Rule 26 that requires judges to consider the public interest
    and, of course, public health and safety. But this statute says
    anything that is relevant to public health and safety.
        And I said the last time, I mean, if I have an employment
    case and someone is accused of having child pornography on
    their computer, is that relevant to public health and safety?
    Maybe it is. I don't know.
        Mr. Coble. Thank you. I hate to cut you off but I am----
        Judge Kravitz. No, that is fine. That is fine.
        Mr. Coble. One more question to Ms. Bailey. Ms. Bailey,
    what issues or matters do not affect public health or safety?
    Give me a couple of examples.
        Ms. Bailey. Well, I think that is a tough question. And
    fortunately, at this point in my career, I am not a judge. So I
    am not in a position to be put to that test.
        But the examples that Judge Joe Anderson gave in his
    testimony on this same bill last year, made me believe that it
    is not that difficult to figure it out if you have the
    documents before you. I mean, obviously, a defective go-cart is
    something that is going to affect public safety.
        You know, the formula for Coca-Cola, hopefully, will not be
    something that affects public safety. I realize there is a
    great deal of gray area but my understanding is that judges
    engage in this kind of balancing every day as part of their
    jobs. And I think this is a worthwhile use of that skill.
        Mr. Coble. Thank you. And I am on a short leash. So I will
    yield back, Mr. Chairman.
        Mr. Cohen. Thank you. Thank you. We are all on short
    leashes. I want to ask one question, then we will be unleashed.
        Judge Kravitz asked to the panel, do you know of any
    Federal judges that are abusing the process? Does anybody know
    any Federal judges abusing the process?
        Mr. Kaster, quickly, because we have to vote.
        Mr. Kaster. Mr. Chairman, I can give you a list of numerous
    judges that I believe are abusing the process because they----
        Mr. Cohen. Federal judges?
        Mr. Kaster. Federal judges.
        Mr. Cohen. And, Ms. Bailey, do you----
        Mr. Kaster. I only talked about Federal judges today.
        Mr. Cohen. All right. Ms. Bailey, do you have any?
        Judge Kravitz. And he is going to send me that list.
        Mr. Cohen. All right. If you would give that list to Judge
    Kravitz and give it to us. And we need to go vote.
        And I would like to thank all the witnesses for their
    testimony. The Members who attended, without objection, Members
    have 5 legislative days to submit any additional written
    questions which, as part of the witnesses, ask you to answer as
    promptly as possible to be made part of the record.
        Without objection the record will remain open for 5
    legislative days for submission of any additional material.
    Thank you for your time and patience. The Subcommittee is
    adjourned. Done.
        [Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

       Response to Post-Hearing Questions from Leslie A. Bailey, Public
                                    Justice

           Response to Post-Hearing Questions from Bruce R. Kaster,
                              Kaster & Lynch, P.A.

    Response to Post-Hearing Questions from the Honorable Mark R. Kravitz,
          United States District Court for the District of Connecticut

     Letters from the Committee on Rules of Practice and Procedure of the
      Judicial Conference of the United States submitted by the Honorable
                                  Steve Cohen

                  Letter of support for the bill, H.R. 1508,
                     submitted by the Honorable Steve Cohen