[Congressional Record Volume 143, Number 8 (Tuesday, January 28, 1997)]
[Senate]
[Pages S756-S757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 225. 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; to the 
Committee on the Judiciary.


                     the sunshine in litigation act

  Mr. KOHL.
  Mr. President, I rise today to offer the Sunshine in Litigation Act, 
a measure that addresses the growing abuse of secrecy orders issued by 
our Federal courts. All too often our Federal courts allow vital 
information that is discovered in litigation--and which directly bears 
on public health and safety--to be covered up, to be shielded from 
people whose lives are potentially at stake, and from the public 
officials we have asked to protect our health and safety.
  All this happens because of the use of so-called protective orders--
really gag orders issued by courts--that are designed to keep 
information discovered in the course of litigation secret and 
undisclosed. Typically, injured victims agree to a defendant's request 
to keep lawsuit information secret. They agree because defendants 
threaten that, without secrecy, they will refuse to pay a settlement. 
Victims cannot afford to take such chances. And while courts in these 
situations actually have the legal authority to deny requests for 
secrecy, typically they do not--because both sides have agreed, and 
judges have other matters they prefer to attend to. So judges are 
regularly and frequently entering these protective orders, using the 
power of the Federal Government to keep people in the dark about the 
dangers they face.
  The measure that I am introducing today will bring crucial 
information out of the darkness and into the light. The measure amends 
rule 26 of the Federal Rules of Civil Procedure to require that judges 
weigh the impact on public health and safety before approving these 
secrecy orders. It is simple, effective, and straightforward. The 
Judiciary Committee reported out identical legislation last Congress by 
a bipartisan 11 to 7 majority.
  Our bill essentially codifies what is already the practice of the 
best judges. In cases that do not affect public health safety, existing 
practice would continue, and courts could still issue protective orders 
as they do today. But in cases affecting public health and safety 
courts would apply a balancing test: they could permit secrecy only if 
the need for privacy outweighs the public's need to know about 
potential health or safety hazards. Moreover, courts could not, under 
this measure, issue protective orders that would prevent disclosures to 
regulatory agencies.
  Although the law may result in some small additional burden on 
judges, a little extra work from judges seems a tiny price to pay for 
protecting blameless people from dangers. Every day, in the course of 
litigation, judges make tough calls about how to construe the public 
interest and interpret other laws that Congress passes. I am confident 
that the courts will administer this law fairly and sensibly. If this 
requires extra work, then the work is well worth it. After all no one 
argues that spoiled meat should be let out on the market because 
stricter regulations mean more work for FDA meat inspectors.

  The problem of excessive secrecy orders in cases involving public 
health and safety has been apparent for many years. The Judiciary 
Committee first held hearings on this issue in 1990. ``Court Secrecy,'' 
Hearings before the Subcommittee. On Courts and Administrative 
Practice, Committee on the Judiciary, May 17, 1990, 101st Congress, 2d 
Session. The committee held hearings again in 1994.
  In 1990, Arthur Bryant, the executive director of Trial Lawyers for 
Public Justice, told us: ``The one thing we learned * * * is that this 
problem is far more egregious than we ever imagined. It goes the length 
and depth of this country, and the frank truth is that much of civil 
litigation in this country is taking place in secret.'' Four years 
later, the attorney Gerry Spence told us about 19 cases he had been 
involved in in which his clients had to sign secrecy agreements. They 
included cases involving defects in a hormonal pregnancy test that 
caused severe birth defect, a defective braking system of a steam 
roller, and an improperly manufactured tire rim.
  Individual examples of this problem abound. For over a decade, 
Miracle Recreation, a U.S. playground equipment company, marketed a 
merry-go-round that caused serious injuries to scores of small 
children--including severed fingers and feet. Lawsuits brought against 
the manufacturer were confidentially settled, preventing the public and 
the Consumer Products Safety Commission from learning about the hazard. 
It took more than a decade for regulators to discover the hazard and 
for the company to recall the merry-go-round.
  There are yet more cases like these. In 1973, GM began marketing 
vehicles with dangerously-placed fuel tanks that tended to rupture, 
burn, and explode on impact more frequently than regular tanks. Soon 
after these vehicles hit the American road, tragic accidents began 
occurring, and lawsuits were filed. More than 150 lawsuits were settled 
confidentially by GM. For years, this secrecy prevented the public from 
learning of the dangers of these vehicles--6 million of which are still 
on the road. It wasn't until a trial in 1993 that the public began 
learning of the dangers of GM sidesaddle gas tanks and the GM crash 
test data which demonstrated these dangers.
  Another case involves Fred Barbee, a Wisconsin resident whose wife, 
Carol, died because of a defective heart valve. Mr. Barbee told us that 
months and years before his wife died, the valve manufacturer had 
quietly, without public knowledge, settled dozens of lawsuits in which 
the valve's defects were demonstrated. So when Mrs. Barbee's valve 
malfunctioned, she rushed to a health clinic in Spooner, WI, thinking, 
as did her doctors, that she was suffering from a heart attack. 
Ignorant of the evidence that her valve was defective, Mrs. Barbee was 
misdiagnosed. Mrs. Barbee was treated incorrectly and died. To this 
day, Mr. Barbee believes that but for the secret settlement of heart 
valve lawsuits, he and his wife would have been aware of the valve 
defect, and his wife would be alive today.

  At the 1994 Judiciary Committee hearing, we heard from a family which 
I must call the Does because they are under a secrecy order and were 
afraid to use their own names when talking to us and to our committee. 
The Does were the victims of tragic medical malpractice that resulted 
in serious brain damage to their child. A friend of the Does is using 
the same doctor, but Mrs. Doe is terrified of saying anything to her 
friend for fear of violating the secrecy order that governed her 
lawsuit settlement. Mrs. Doe is afraid that if she talks, the defendant 
in her case will suspend the ongoing settlement payments that allow her 
to care for her injured child.
  What sort of court system prohibits a woman from telling her friend 
that her child might be in danger? And the more disturbing question is 
this: What other secrets are currently held under lock and key which 
could be saving lives if they were made public?
  Mr. President, having said all this, I must in fairness recognize 
that there is another side to this problem. Privacy is a cherished 
possession, and business information is an important commodity. For 
this reason, the courts must,

[[Page S757]]

in some cases, keep trade secrets and other business information 
confidential. The goal of this measure I have introduced is to ensure 
that courts do not carelessly and automatically sanction secrecy when 
the health and safety of the American public is at stake. At the same 
time, it will still allow defendants to obtain secrecy orders when the 
need for privacy is significant and substantial.
  To attack the problem of excessive court secrecy is not to attack the 
business community. Most of the time, businesses seek protective orders 
for legitimate reasons. And although a few opponents of product 
liability reform may dispute that businesses care about public health 
and safety, we know that they do. Business people want to know about 
dangerous and defective products, and they want regulatory agencies to 
have the information necessary to protect the public.
  The Sunshine in Litigation Act is a simple effort to protect the 
safety of the American people. Its benefits far outweigh any of the 
worst imaginable disadvantages. And the longer we wait to enact the 
legislation, the more people are put at risk.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 225

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Sunshine in Litigation Act 
     of 1997''.

     SEC. 2. PROTECTIVE ORDERS AND SEALING OF CASES AND 
                   SETTLEMENTS RELATING TO PUBLIC HEALTH OR 
                   SAFETY.

       (a) In General.--Chapter 111 of title 28, United States 
     Code, is amended by adding at the end thereof the following 
     new section:

     ``Sec. 1659. Protective orders and sealing of cases and 
       settlements relating to public health or safety

       ``(a)(1) A court shall enter an order under rule 26(c) of 
     the Federal Rules of Civil Procedure restricting the 
     disclosure of information obtained through discovery or an 
     order restricting access to court records in a civil case 
     only after making particularized 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 disclosure of potential 
     health or safety hazards is clearly 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 the provisions of 
     paragraph (1) shall continue in effect after the entry of 
     final judgment, unless at or after such entry the court makes 
     a separate particularized finding of fact that the 
     requirements of paragraph (1)(A) or (B) have been met.
       ``(b) 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.
       ``(c)(1) No agreement between or among parties in a civil 
     action filed in a court of the United States may contain a 
     provision 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 disclosure of information to a Federal or State 
     agency as described under paragraph (1) shall be confidential 
     to the extent provided by law.''.
       (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 1658 the 
     following:

``1659. Protective orders and sealing of cases and settlements relating 
              to public health or safety.''.
       SEC. 3. EFFECTIVE DATE.
       The amendments made by this Act shall take effect 30 days 
     after the date of the enactment of this Act and shall apply 
     only to orders entered in civil actions or agreements entered 
     into on or after such date.
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