[Congressional Record Volume 153, Number 189 (Tuesday, December 11, 2007)]
[Senate]
[Pages S15140-S15141]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself and Mr. Leahy):
  S. 2449. 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.
  Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in 
Litigation Act of 2007, a bill to curb the ongoing abuse of secrecy 
orders in Federal courts. The result of this abuse, which often comes 
in the form of sealed settlement agreements, is to keep important 
health and safety information from the public.
  This problem has been recurring for decades, and most often arises in 
product liability cases. Typically, an individual brings a cause of 
action against a manufacturer for an injury or death that has resulted 
from a defect in one of its products. The injured party often faces a 
large corporation that can spend an unlimited amount of money defending 
the lawsuit and prolong its resolution. Facing a formidable opponent 
and mounting medical bills, plaintiffs often have no choice but to 
settle the litigation. In exchange for the award he or she was seeking, 
the victim is forced to agree to a provision that prohibits him or her 
from revealing information disclosed during the litigation.
  Plaintiffs get a respectable award, and the defendant is able to keep 
damaging information from getting out. Because they remain unaware of 
critical public health and safety information that could potentially 
save lives, the American public incurs the greatest cost.
  This concern for excessive secrecy is warranted by the fact that 
tobacco companies, automobile manufacturers, and pharmaceutical 
companies have settled with victims and used the legal system to hide 
information which, if it became public, could protect the American 
people. Surely, there are appropriate uses for such orders, like 
protecting trade secrets and other truly confidential company 
information. This legislation makes sure such information is protected. 
But, protective orders are certainly not supposed to be used for the 
sole purpose of hiding damaging information from the public to protect 
a company's reputation or profit margin.
  One of the most famous cases of abuse involved Bridgestone/Firestone 
tires. From 1992-2000, tread separations of various Bridgestone and 
Firestone tires were causing accidents across the country, many 
resulting in serious injuries and even fatalities. Instead of owning up 
to their mistakes and acting responsibly, Bridgestone/Firestone quietly 
settled dozens of lawsuits, most of which included secrecy agreements. 
It wasn't until 1999, when a Houston public television station broke 
the story, that the company acknowledged its wrongdoing and recalled 
6.5 million tires. By then, it was too late. More than 250 people had 
died, and more than 800 were injured as a result of the defective 
tires.
  If the story ended there, and the Bridgestone/Firestone cases were 
just

[[Page S15141]]

an aberration, one might argue that there is no urgent need for 
legislation. But, unfortunately, the list goes on. There is the case of 
General Motors. Although an internal memo demonstrated that GM was 
aware of the risk of fire deaths from crashes of pickup trucks with 
``side saddle'' fuel tanks, an estimated 750 people were killed in 
fires involving these fuel tanks. When victims sued, GM disclosed 
documents only under protective orders and settled these cases on the 
condition that the information in these documents remained secret. This 
type of fuel tank was installed for 15 years before being discontinued.
  Evidence suggests that the dangers posed by protective orders and 
secret settlements continue. On December 11, 2007, at a hearing before 
the Senate Judiciary Committee Subcommittee on Antitrust, Competition 
Policy and Consumer Rights, Johnny Bradley, Jr. described his tragic 
personal story about the implications of court-endorsed secrecy. In 
2002, Mr. Bradley's wife was killed in a rollover accident allegedly 
caused by tread separation in his Cooper tires. While litigating the 
case, his attorney uncovered documented evidence of Cooper tire design 
defects. Through aggressive litigation of protective orders and 
confidential settlements in cases prior to the Bradleys' accident, 
Cooper had managed to keep the documents confidential. Prior to the end 
of Mr. Bradley's trial, Cooper Tires settled with him on the condition 
that almost all litigation documents would be kept confidential under a 
broad protective order. With no access to documented evidence of design 
defects, consumers will continue to remain in the dark.
  In 2005, the drug company Eli Lilly settled 8,000 cases related to 
harmful side effects of its drug Zyprexa. All of those settlements 
required plaintiffs to agree, ``not to communicate, publish or cause to 
be published. . .any statement. . .concerning the specific events, 
facts or circumstances giving rise to [their] claims.'' In that case, 
the plaintiffs uncovered documents that showed that, through its own 
research, Lilly knew about the side effects as early as 1999. While the 
plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated 
$4.2 billion in sales that year. More than a year later, information 
about the case was leaked to the New York Times and another 18,000 
cases settled. Had the first settlement not included a secrecy 
agreement, consumers would have been able to make informed choices and 
avoid the harmful side effects, including enormous weight gain, 
dangerously elevated blood sugar levels and diabetes.
  There are no records kept of the number of confidentiality orders 
accepted by State or Federal courts. However, anecdotal evidence 
suggests that court secrecy and confidential settlements are prevalent. 
Beyond General Motors, Bridgestone/Firestone, Cooper Tires, and 
Zyprexa, secrecy agreements had real life consequences by allowing 
Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous 
products and drugs to remain on the market. And those are only the ones 
we know about.
  While some States have already begun to move in the right direction, 
we still have a long way to go. It is time to initiate a Federal 
solution for this problem. The Sunshine in Litigation Act is a modest 
proposal that would require Federal judges to perform a simple 
balancing test to ensure that the defendant's interest in secrecy truly 
outweighs the public interest in information related to public health 
and safety.
  Specifically, prior to making any portion of a case confidential or 
sealed, a judge would have to determine--by making a particularized 
finding of fact--that doing so would not restrict the disclosure of 
information relevant to public health and safety. Moreover, all courts, 
both Federal and State, would be prohibited from issuing protective 
orders that prevent disclosure to relevant regulatory agencies.
  This legislation does not prohibit secrecy agreements across the 
board. It does not place an undue burden on judges or our courts. It 
simply states that where the public interest in disclosure outweighs 
legitimate interests in secrecy, courts should not shield important 
health and safety information from the public. The time to focus some 
sunshine on public hazards to prevent future harm is now.
  I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                S. 2449

       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 2007''.

     SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF 
                   CASES AND SETTLEMENTS.

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

     ``Sec. 1660. Restrictions on protective orders and sealing of 
       cases and settlements

       ``(a)(1) A court shall not 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 unless the court has 
     made 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 the disclosure of potential 
     health or safety hazards is 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 the time of, or after, such entry the court makes a 
     separate finding of fact that the requirements of paragraph 
     (1) have been met.
       ``(3) 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.
       ``(4) This section shall apply even if an order under 
     paragraph (1) is requested--
       ``(A) by motion pursuant to rule 26(c) of the Federal Rules 
     of Civil Procedure; or
       ``(B) by application pursuant to the stipulation of the 
     parties.
       ``(5)(A) The provisions of this section shall not 
     constitute grounds for the withholding of information in 
     discovery that is otherwise discoverable under rule 26 of the 
     Federal Rules of Civil Procedure.
       ``(B) No party shall request, as a condition for the 
     production of discovery, that another party stipulate to an 
     order that would violate this section.
       ``(b)(1) A court shall not 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)(1) Subject to paragraph (2), a court shall not 
     enforce any provision of a settlement agreement between or 
     among parties that prohibits 1 or more parties from--
       ``(A) disclosing that a settlement was reached or the terms 
     of such settlement, other than the amount of money paid; or
       ``(B) discussing a case, or evidence produced in the case, 
     that involves matters related to public health or safety.
       ``(2) Paragraph (1) does not apply if the court has made 
     findings of fact that the public interest in the disclosure 
     of potential health or safety hazards is outweighed by a 
     specific and substantial interest in maintaining the 
     confidentiality of the information.''.
       (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 1659 the 
     following:

``1660. Restrictions on protective orders and sealing of cases and 
              settlements''.

     SEC. 3. EFFECTIVE DATE.

       The amendments made by this Act shall--
       (1) take effect 30 days after the date of enactment of this 
     Act; and
       (2) apply only to orders entered in civil actions or 
     agreements entered into on or after such date.
                                 ______