[Congressional Record Volume 155, Number 39 (Thursday, March 5, 2009)]
[Senate]
[Pages S2834-S2835]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself and Mr. Graham):
  S. 537. A bill to amend chapter 111 of tire 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 2009, a bill that will 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 hidden 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 a virtually unlimited amount of money 
defending the lawsuit, prolonging the time it takes to reach 
resolution. Facing a formidable opponent and mounting medical bills, a 
plaintiff often has 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 about 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 from future harms. 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 of secrecy orders involved 
Bridgestone/Firestone tires. From 1992-2000, tread separations of 
various Bridgestone and Firestone tires caused 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 was not 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 an aberration, one might argue that there is no urgent need for 
legislation. But, unfortunately, the list of abuses 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 trucks with 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 that demonstrates the implications of court endorsed 
secrecy. In 2002, Mr. Bradley's

[[Page S2835]]

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 design defect 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 about this life-
threatening defect.
  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 those cases, 
the plaintiffs uncovered documents which showed that, through its own 
research, Lilly knew about the harmful side effects as early as 1999. 
While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and 
generated $4.2 billion in sales in 2005. 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.
  This very issue is currently before a Federal judge in Orlando, FL. 
There, the court is faced with deciding whether AstraZeneca can keep 
under seal clinical studies about the harmful side effects of an 
antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News 
sued to force AstraZeneca to make public documents discovered in 
dismissed lawsuits. Late last month, the court unsealed some of the 
documents at question, and is still deciding whether to unseal the 
remainder of the documents. This is exactly the sort of case where we 
need judges to consider public health and safety when deciding whether 
to allow a secrecy order.
  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 Tire, Zyprexa and 
Seroquel, secrecy agreements have also had real life consequences by 
allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other 
dangerous products and drugs to remain in 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 in any proposed secrecy order, 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.
  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 
printed in the Record, as follows:

                                 S. 537

       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 2009''.

     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 described 
     under subsection (a)(1) 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.
       ``(d) When weighing the interest in maintaining 
     confidentiality under this section, there shall be a 
     rebuttable presumption that the interest in protecting 
     personally identifiable information relating to financial, 
     health or other similar information of an individual 
     outweighs the public interest in disclosure.
       ``(e) Nothing in this section shall be construed to permit, 
     require, or authorize the disclosure of classified 
     information (as defined under section 1 of the Classified 
     Information Procedures Act (18 U.S.C. App.)).''.
       (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.
                                 ______