[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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