[Congressional Record Volume 157, Number 41 (Thursday, March 17, 2011)]
[Senate]
[Pages S1836-S1838]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 623. 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 with Senator Graham to 
introduce the Sunshine in Litigation Act of 2011, 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. As we recognize Sunshine Week, this bipartisan, 
commonsense measure is an important step to improving transparency in 
our

[[Page S1837]]

courthouses by requiring judges to consider public health and safety 
before permitting secrecy agreements.
  This problem of court secrecy has been occurring 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. But the American public incurs 
the loss because they remain unaware of critical public health and 
safety information that could potentially save lives.
  This concern about excessive secrecy is warranted by the long history 
of tobacco companies, automobile manufacturers, pharmaceutical 
companies, medical device manufacturers, and others settling with 
victims and using the legal system to hide information which, if it 
became public, could protect the American people from future health and 
safety harms. Surely, there are appropriate uses for such orders, like 
protecting trade secrets and other truly confidential company 
information, as well as personal identifying and classified 
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 to 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 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 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.
  More recently, the world's largest automaker, Toyota, has faced a 
barrage of litigation relating to its recall of over 8 million cars due 
to sudden unintended acceleration problems, causing more than eighty 
deaths. After years of lawsuits, Congressional oversight hearings, and 
Toyota's efforts to keep settlements and product information secret, a 
California Federal judge finally made public thousands of previously 
sealed documents, noting that ``the business of this litigation should 
be in the public domain.'' Had a judge been required to weigh the 
public's interest in health and safety, as this legislation would 
require, perhaps we would have known more about the risks sooner and 
some of those lives could have been saved. Until we put the public 
interest on par with the interests of private litigants, public health 
and safety will remain at risk.
  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. In 2009, the court unsealed some of the documents 
at question, but denied requests to release AstraZeneca's submissions 
to foreign regulators and sales representatives' notes on doctors' 
meetings. Despite a recent $68.5 million settlement, continued efforts 
to unseal crucial documents proved unsuccessful. 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.
  We are mindful of the risks to public health and safety that court 
secrecy orders can pose in the wake of last year's horrific BP oil 
spill in the Gulf of Mexico. As the parties continue to fight over 
crucial documents, injured parties continue to accept secret 
settlements. We can only hope that information vital to public health 
and safety, which could protect against the next disaster, is not being 
shielded from us as well.
  The examples go on and on. At a 2007 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 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 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.
  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 Bridgestone/Firestone, General Motors, Toyota, Seroquel, BP, 
Cooper Tire, and Zyprexa, 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 judges have already begun to move in the right direction 
by giving serious weight to public health and safety, we still have a 
long way to go. 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 in a case pleading facts 
relevant to public health and safety, 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

[[Page S1838]]

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, and it does not place an undue burden on judges or on 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. Since last 
Congress, we have made changes to make absolutely clear that this would 
apply only to those cases with facts relevant to public health and 
safety, and to ensure that there is no undue burden on judges or our 
courts. 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 
printed in the Record, as follows:

                                 S. 623

       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 2011''.

     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) In any civil action in which the pleadings state 
     facts that are relevant to the protection of public health or 
     safety, a court shall not enter, by stipulation or otherwise, 
     an order otherwise authorized 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 unless in connection with such order the court has 
     first made independent 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 past, 
     present, or 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 order is no broader than necessary to 
     protect the confidentiality interest asserted.
       ``(2) No order entered as a result of the operation 
     paragraph (1), other than an order approving a settlement 
     agreement, may 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) continue to be 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) A court shall not approve any party's stipulation or 
     request to stipulate to an order that would violate this 
     section.
       ``(b)(1) In any civil action in which the pleadings state 
     facts that are relevant to the protection of public health or 
     safety, a court shall not approve or enforce any provision of 
     an agreement between or among parties, or approve or enforce 
     an order entered as a result of the operation of subsection 
     (a)(1), to the extent that such provision or such order 
     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 the fact that such settlement was reached 
     or the terms of such settlement, other than the amount of 
     money paid; or
       ``(B) discussing a civil action, or evidence produced in 
     the civil action, that involves matters relevant to the 
     protection of public health or safety.
       ``(2) Paragraph (1) applies unless the court has made 
     independent findings of fact that--
       ``(A) the public interest in the disclosure of past, 
     present, or potential public health or safety hazards is 
     outweighed by a specific and substantial interest in 
     maintaining the confidentiality of the information or records 
     in question; and
       ``(B) the requested order is no broader than necessary to 
     protect the confidentiality interest asserted.
       ``(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.
                                 ______