[Congressional Record Volume 140, Number 53 (Thursday, May 5, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 5, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
              COURT SECRECY AND THE PUBLIC'S RIGHT TO KNOW

 Mr. SIMON. Mr. President, late summer Senator Kohl introduced 
a bill to address the problems of protective orders and secrecy 
agreements in Federal litigation. Today, I would like to add my name as 
a cosponsor of S. 1404, the Sunshine in Litigation Act of 1993.
  This bill addresses a simple yet serious and frequent problem that 
affects much Federal litigation, especially products liability cases: 
Federal district courts routinely enter protective orders or approve 
settlements that prevent the publication of information that is 
relevant--and indeed often crucial--to the public health and safety. A 
brief example will suffice: In 1995. Dow Corning entered into a 
$1,000,000 settlement with a plaintiff in a case involving the Dow 
Corning breast implants. Although the plaintiff's attorney uncovered 
evidence revealing that Dow had known of the health risks associated 
with the implants as early as the 1970's, this evidence did not come to 
light because of a protective order entered as part of the settlement. 
Thus, it was not until 1992 that the public, through an FDA 
investigation that independently uncovered the damaging evidence, 
discovered the potentially damaging effects of the implants.
  Courts enter protective orders or approve secrecy agreements in 
settlements because all too often they regard litigation as nothing 
more than a private dispute mechanism. Similarly, injured plaintiffs 
often are not in the position to protect the public's right to know 
because as victims of injuries, they are seeking compensation and are 
often willing to execute secrecy agreements as a condition of 
settlement.
  We must remember, however, that in many product liability cases, 
there is a third party with interests that need to be protected: the 
public. The public's right to know should--with rare exceptions--inform 
our litigation system as much as the interests of private parties. 
Information that will help avoid numerous injuries and much hardship 
should not be sacrificed at the alter of a single lawsuit's resolution.
  Senator Kohl's bill protects against this result, allowing a court to 
enter a protective order only after it has certified that such an order 
will not restrict the disclosure of information relevant to public 
safety, and prohibiting secrecy agreements as part of settlements.
  Doubtless, some fine tuning of this bill remains to be done. Because 
nearly any information can be said to be ``relevant to the protection 
of public health or safety,'' it is quite possible that some redrafting 
might be necessary to address problems of overbreadth. These minor 
problems, however, should not overshadow the fact that S. 1404 
addresses a fundamental problem, and will have a salutary effect on the 
way lawsuits proceed through our Federal courts.
  By introducing this bill, Senator Kohl seeks to ensure that the 
entire range of interests affected by Federal litigation are considered 
before the public is deprived of its right to discover information 
affecting the general welfare. I am happy to join him in this 
effort.

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