[Congressional Record Volume 145, Number 63 (Tuesday, May 4, 1999)]
[Senate]
[Pages S4678-S4679]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 957. 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.


                   sunshine in litigation act of 1999

  Mr. KOHL. Mr. President, I rise today to offer the Sunshine in 
Litigation Act of 1999, 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 mothers, fathers and children 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 fight every document 
requested and will refuse to agree to 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 to which they prefer to attend. 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.
  Perhaps the worst offenders are the tobacco companies. They have used 
protective orders not only to keep incriminating documents away from 
public view, but also to drive up litigation costs by preventing 
document sharing, effectively forcing every successive plaintiff to 
``reinvent the wheel.'' One tobacco industry official even boasted, 
``The aggressive posture we have taken regarding depositions and 
discovery in general continues to make these cases extremely burdensome 
and expensive for plaintiffs' lawyers, particularly sole practitioners. 
To paraphrase General Patton, the way we won these cases was not by 
spending all of our money, but by making the other S.O.B. spend all 
his.''
  This systematic abuse of secrecy orders is one of the reasons that it 
took more than four decades of tobacco litigation to achieve a 
reasonable settlement. In fact, Congress and the public's shift in 
recent years against Big Tobacco resulted in large part from disclosure 
of materials that had been concealed under secrecy orders, including 
materials regarding youth targeting and nicotine manipulation.
  The problem of excessive secrecy orders in cases involving public 
health and safety has been apparent for years. The Judiciary Committee 
first held hearings on this issue in 1990 and 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, attorney Gerry Spence told us about 19 cases in 
which he had been involved where his clients had been required to sign 
secrecy agreements. They included cases involving defects in a hormonal 
pregnancy test that caused severe birth defects, a defective braking 
system on a steamroller, and an improperly manufactured tire rim.
  But that's not surprising, because 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 injury 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 danger and for the company to recall the 
merry-go-round.

  There are yet more cases like these. In 1973, GM allegedly 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 alleged dangers presented by 
these vehicles--millions of which are still on the road. It wasn't 
until a 1993 trail that the public learned about sidesaddle gas tanks 
and some GM crash test data that demonstrated these dangers.
  The thrust of our legislation is straightforward. In cases affecting 
public health and safety, Federal courts would be required to apply a 
balancing test: they could permit secrecy only if

[[Page S4679]]

the need for privacy outweighs the public need to know about potential 
health or safety hazards. Moreover, all courts--both Federal and 
state--would be prohibited from issuing protective orders that prevent 
disclosure to regulatory agencies. In this way, our bill will bring 
crucial information out of the darkness and into the light.
  Although this law may result in some small additional burden on 
judges, a little extra work seems a tiny price to pay to protect 
blameless people from danger. 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 that work is well worth the effort. After all, no one 
argues that spoiled meat should be allowed on the market because 
stricter regulations mean more work for FDA meat inspectors.
  Having said all this, we must in fairness recognize that there is 
another side to this problem. Privacy is a cherished possession, and 
business information is a cherished commodity. For this reason, the 
courts must, in some cases, keep trade secrets and other business 
information confidential.
  But, in my opinion, today's balance of these interests is entirely 
inadequate. Our legislation will ensure that courts do not carelessly 
and automatically sanction secrecy when the health and safety of the 
American public are at stake. At the same time, this bill will allow 
defendants to obtain secrecy orders when the need for privacy is 
significant and substantial.
  Indeed, this proposal would simply codify the practices of the most 
thoughtful Federal judges. As Justice Breyer has said, ``no court can 
or should stand silent when they see an immediate, serious risk to . . 
. health or safety.'' Virtually identical legislation received 49 votes 
on the floor in 1994 and was passed with bipartisan support out of the 
Judiciary Committee in 1996.
  Who knows what other hazards are hidden behind courthouse doors? Do 
we want to wait four decades for the next ``tobacco'' to be disclosed? 
We need to take action to prevent the next threat before it's too late.
  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. 957

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

     SECTION 1. PROTECTIVE ORDERS AND SEALING OF CASES AND 
                   SETTLEMENTS RELATING TO PUBLIC HEALTH OR 
                   SAFETY.

       (a) Short Title.--This section may be cited as the 
     ``Sunshine in Litigation Act of 1999''.
       (b) Protective Orders and Sealing of Cases.--Chapter 111 of 
     title 28, United States Code, is amended by adding at the end 
     the following new section:

     ``Sec. 1660. 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, an 
     order approving a settlement agreement that would restrict 
     the disclosure of such information, 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 paragraph (1) 
     (other than an order approving a settlement agreement) 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 court of the United States may approve or 
     enforce any provision of an agreement between or among 
     parties to a civil action, or approve or enforce an order 
     subject to subsection (a)(1), 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 such information disclosed to a Federal or State 
     agency shall be confidential to the extent provided by 
     law.''.
       (c) 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. Protective orders and sealing of cases and settlements relating 
              to public health or safety.''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect 30 days after the date of enactment of this 
     Act and shall apply only to orders entered in civil actions 
     or agreements entered into on or after such date.
                                 ______