[Senate Report 112-45]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 64
112th Congress                                                   Report
                                 SENATE
 1st Session                                                     112-45

======================================================================



 
                   SUNSHINE IN LITIGATION ACT OF 2011

                                _______
                                

                 August 2, 2011.--Ordered to be printed

                                _______
                                

            Mr. Leahy, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 623]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 623), 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, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Sunshine in Litigation Act of 2011.1
 II. History of the Bill and Committee Consideration.................15
III. Section-by-Section Summary of the Bill..........................17
 IV. Congressional Budget Office Cost Estimate.......................19
  V. Regulatory Impact Evaluation....................................20
 VI. Conclusion......................................................20
VII. Minority Views..................................................21
VIII.Changes to Existing Law Made by the Bill, as Reported...........24


  I. Background and Purpose of the Sunshine in Litigation Act of 2011

    The purpose of S. 623, the Sunshine in Litigation Act, is 
to protect the public from potential health or safety dangers 
that are too often concealed by court orders restricting 
disclosure of information.
    The bill requires judges, in cases pleading facts relevant 
to public health and safety, to consider the public's interest 
in disclosure of health and safety information before issuing a 
protective order or an order to seal court records or a 
settlement agreement. Under this bill, the proponent of such an 
order must demonstrate that the order would not restrict the 
disclosure of information relevant to protecting public health 
and safety. If the order would restrict such disclosure, the 
judge must find that the public interest in knowing about a 
potential health or safety hazard is outweighed by a specific 
and substantial interest in maintaining confidentiality before 
issuing the order.
    The bill also prohibits a court from approving or enforcing 
any provision of an agreement between or among parties that 
restricts a party from disclosing public health or safety 
information that is relevant to the lawsuit to any Federal or 
state agency with authority to enforce laws regulating an 
activity related to such information. In addition, the bill 
prohibits a court from enforcing any provision of a settlement 
agreement that prohibits disclosure of public health or safety 
information unless it has made findings of fact that the public 
interest in disclosure of the potential health or safety 
hazards is outweighed by a specific and substantial interest in 
maintaining the confidentiality of the information.
    A number of consumer advocacy and open government groups\1\ 
support S. 623 because it will protect legitimate interests in 
confidentiality while ensuring that court-endorsed secrecy does 
not jeopardize public welfare by concealing information about 
potential public health or safety dangers from consumers and 
regulatory agencies. Despite the concerns expressed in the 
minority views, nothing in the Rules Enabling Act prevents 
congressional action to protect public health and safety. This 
legislation has arisen in part out of a concern that the courts 
have not adequately considered the importance of transparency.
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    \1\Letter to Senator Herb Kohl from Alliance for Justice, The 
Center for Justice and Democracy, Consumers Union, Consumer Federation 
of America, National Consumers League, US PIRG, and Public Citizen 
(April 14, 2011). The bill was also endorsed by The New York Times. 
Editorial, Need to Know, NY Times, March 12, 2008, http://
www.nytimes.com/2008/03/12/opinion/
12wed3.html?scp=3&sq=%22need+to+know%22&st=nyt (last accessed June 23, 
2011).
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    This legislation is prospective and will take effect 30 
days after the date of enactment and apply only to orders 
entered in civil actions or agreements entered into on or after 
such date. It does not provide a basis for reconsidering an 
order entered into before the effective date. The Sunshine in 
Litigation Act is not intended to preempt or displace current 
law, the Federal Rules of Civil Procedure, common law or First 
Amendment law unless that law provides greater openness and 
access to litigation documents, court records or proceedings. 
Furthermore, this legislation is not meant to preclude other 
interests the public may have in restricting disclosure 
information, such as in the case of financial fraud or 
environmental harms.
    Court secrecy prevents the public from learning about 
public health and safety dangers. Over the past 20 years, we 
have learned about numerous cases where court-approved secrecy, 
in the form of protective orders and sealed settlements, has 
kept the public in the dark about serious public health and 
safety dangers. At hearings in 1990 and 1994, the Judiciary 
Committee's Subcommittee on Courts and Administrative Practice 
heard testimony about some of the many examples of these cases 
such as those involving complications from silicone breast 
implants, adverse reactions to a prescription pain killer, 
``park to reverse'' problems in pick-up trucks, and defective 
heart valves. Other examples include cases involving dangers 
from side-saddle gas tanks, playground equipment, IUD birth 
control devices, tires and portable cribs.
    In December 2007, the Judiciary Committee's Subcommittee on 
Antitrust, Competition Policy and Consumer Rights received 
testimony about more recent examples, including 
phenylpropanolamine (PPA) in children's over-the-counter 
medicine, Cooper tires and the prescription drug Zyprexa.
    This problem most often arises in product liability cases. 
Typically, an individual sues a manufacturer for an injury or 
death that has resulted from a defect in one of the 
manufacturer's products. In these cases, the victim generally 
faces a large corporation that can spend large sums of money 
defending the lawsuit and delaying its resolution. Facing a 
formidable opponent and mounting medical bills, plaintiffs are 
discouraged from continuing and often seek to settle the 
litigation. In exchange for monetary damages, the victim is 
often forced to agree to a provision that prohibits him or her 
from revealing information disclosed during the case. While the 
plaintiff gets a respectable award and the defendant is able to 
keep damaging information from being publicized, the public 
remains unaware of critical health and safety information that 
could potentially save lives.
    In some of the examples cited, the civil complaint and 
other court records may have been available to the public. 
However, this publicity is minimal and not sufficient to notify 
the public and regulatory agencies or to prevent additional 
injuries.\2\ In cases involving dangerous products, often it is 
the ``smoking gun'' documents, uncovered during discovery and 
sealed in settlement agreements, that will adequately inform 
the public and regulators about a health or safety danger. As a 
result, without access to that information, it takes the public 
and regulators much longer than it should to discover dangers 
to health and safety. Furthermore, in most cases, defendants 
continue to insist on secrecy even after some information has 
become public.\3\
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    \2\The Sunshine in Litigation Act: Does Court Secrecy Undermine 
Public Health and Safety: Hearing Before the Subcomm. on Antitrust, 
Competition Policy and Consumer Rights of the S. Comm. on the 
Judiciary, 110th Cong. (Dec. 11, 2007) [hereinafter 2007 Hearing] 
(testimony and responses to questions by Judge Anderson).
    \3\According to Bruce Kaster, a lawyer who has represented clients 
in cases against Cooper Tire, Cooper still aggressively fights 
protective orders despite the fact that there is some publicity about 
the cases.
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                      A. EXAMPLES OF COURT SECRECY

1. Zomax

    The popular painkiller Zomax, manufactured by McNeil 
Pharmaceuticals and linked to a dozen deaths and more than 400 
severe allergic reactions, was taken off the market only after 
McNeil settled dozens of lawsuits with sealed settlements. In 
1990, Devra Lee Davis testified before the Subcommittee on 
Courts and Administrative Practice that she nearly died from 
taking this legally prescribed drug. She later learned that the 
company had known the drug could kill some people and used 
judicially-sanctioned secrecy to keep that information from the 
public and from others injured by the drug.\4\
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    \4\Examining the Use of Secrecy and Confidentiality of Documents by 
Courts in Civil Case: Hearing Before the Subcomm. on Courts and 
Administrative Practice of the S. Comm. on the Judiciary, 101st Cong. 
(May 17, 1990) [hereinafter 1990 Hearing] (testimony of Devra Davis 
Lee); Davan Maharaj, Tire Recall Fuels Drive to Bar Secret Settlements, 
LA Times, September 10, 2000, at A1.
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2. Zyprexa

    In 2005, the drug company Eli Lilly settled 8,000 cases 
related to Zyprexa, a drug used to treat schizophrenia and 
bipolar disorder. These cases alleged that Eli Lilly did not 
disclose known harmful side effects of Zyprexa, such as 
inordinate weight gain and dangerously high blood sugar levels 
that sometimes resulted in diabetes. Eli Lilly was also accused 
of promoting off label use of the drug by urging doctors to 
prescribe it to elderly patients with dementia. All of the 
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.'' The public did not learn about these 
settlements or Zyprexa's dangerous side effects until nearly 
two years later, in 2006, when The New York Times received and 
published leaked documents from a case that were subject to a 
protective order.\5\
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    \5\Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, NY 
Times, Dec. 18, 2006, http://www.nytimes.com/2006/12/18/business/
18drug.html?scp=10&sq=zyprexa&st=nyt (last accessed June 23, 2011); 
Alex Berenson, Lilly Settles With 18,000 Over Zyprexa, NY Times, Jan. 
5, 2007, http://query.nytimes.com/gst/fullpage.html? 
res=9F00E5DB1430F936A35752C0A 9619C8B63&sec=&spon=&pagewanted=print 
(last accessed June 23, 2011).
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3. Phenylpropanolamine (PPA)

    In 1996, a seven-year-old boy in Washington State suffered 
a sudden stroke and fell into a coma hours after taking an 
over-the-counter medicine to treat an ear infection. After 
three years in a coma, he died. The child's mother sued the 
manufacturer of the medicine alleging that the stroke was 
induced by PPA, an ingredient with deadly potential side 
effects, which has since been banned by the Food and Drug 
Administration (FDA). Unknown to the public, many similar 
lawsuits in state and Federal courts had previously been filed 
against the drug manufacturer, but were settled secretly, with 
the lawyers and plaintiffs subject to restrictive 
confidentiality orders. In 2005, the mother settled her case 
and agreed to keep the information she learned and terms of the 
settlement secret.\6\
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    \6\Second Amended Complaint, Estate of Matthew Walker v. Whitehall-
Robins, No. 0105-05204 (filed Or. Cir. Ct., Oct. 26, 1999); Interview 
with Leslie O'Leary, attorney for the Estate of Matthew Walker.
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4. Bjork-Shiley heart valve

    Over the course of several years, Pfizer's Bjork-Shiley 
heart valves were linked to 248 deaths. Pfizer insisted on 
secrecy agreements when settling dozens of lawsuits, before the 
FDA finally removed the valves from the market. The 
Subcommittee on Courts and Administrative Practice heard 
testimony from Fredrick Barbee about how court-endorsed secrecy 
prevented him and his wife from learning about the potential 
heart valve malfunction and ultimately prevented her from 
getting the appropriate and life-saving treatment she needed 
when her valve malfunctioned.\7\
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    \7\1990 Hearing (testimony of Frederick R. Barbee); Davan Maharaj, 
supra note 4.
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5. Dalkon Shield

    In 1974, the FDA suspended use of the Dalkon Shield, a 
popular intrauterine birth control device. The device was 
linked to 11 deaths and 209 cases of spontaneous abortion. 
Prior to the FDA's action, it was reported that the maker of 
the device, A.H. Robins, had settled numerous cases with strict 
confidentiality agreements. The manufacturer even attempted to 
include agreements with the plaintiffs' lawyers that would have 
prohibited them from taking another Dalkon Shield related 
case.\8\
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    \8\Maharaj, supra note 4.
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6. Silicone breast implants

    Information about the hazards of silicone breast implants 
was discovered during litigation as early as 1984, but because 
of a protective order that was issued when the case settled, 
the information remained hidden from the public and the FDA. It 
was not until several years and tens of thousands of victims 
later that the public learned of potentially grave risks posed 
by the implants. The Subcommittee on Administration and the 
Courts heard testimony from Sybil Niden Goldrich about her 
injuries allegedly caused by silicone breast implants and how 
the use of protective orders prevented the public from learning 
about the risks posed by breast implants.\9\
---------------------------------------------------------------------------
    \9\S. 1404: Hearing Before the Subcomm. on Courts and 
Administrative Practice of the S. Comm. on the Judiciary, 101st Cong. 
(Apr. 20, 1994) [hereinafter 1994 Hearing] (testimony of Sybil Niden 
Goldrich).
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7. Ephedra

    Ephedra is a supplement that was widely popular until it 
was banned by the FDA in 2004. The ban could have come earlier 
and lives may have been saved had it not been for court-
endorsed secrecy through protective orders and confidential 
settlements. Deaths related to Ephedra occurred as early as 
1994. The existence of 14,700 consumer complaints about 
Metabolife 356, and other documents relating to the safety 
risks of Ephedra, although turned over in lawsuits against the 
company, were concealed by protective orders and confidential 
settlements. In 2000, the FDA tried unsuccessfully to intervene 
in a consumer lawsuit to gain access to the complaints which 
were under seal in a protective order.\10\ It took significant 
public attention and a congressional investigation for 
Metabolife to finally agree to provide the FDA and Congress the 
adverse event reports. The subsequent investigation revealed 
that prior to 1999, Metabolife had 138 reports of significant 
adverse events, including heart attacks, strokes, seizures, and 
psychosis.\11\
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    \10\In Bloom vs. Metabolife, the FDA sought to intervene in order 
to challenge a protective order that concealed health and safety 
information. Penni Crabtree, Court orders often keep companies' darkest 
secrets hidden, San Diego Union Tribune, Sept. 8, 2002, H-1; Dr. Lester 
Crawford discusses the Justice Department and FDA investigation of 
Metabolife for its use of Ephedra in its diet supplement, National 
Public Radio (NPR) August 16, 2002.
    \11\Adverse Event Reports from Metabolife, Minority Staff Report, 
Special Investigations Division, Committee on Government Reform, U.S. 
House of Representatives. Oct. 2002. http://
democrats.oversight.house.gov/images/stories/documents/20040827102309-
56026.pdf (last accessed June 23, 2011).
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8. ``Park-to-reverse'' malfunction

    For many years, Ford was aware of problems associated with 
a ``park-to-reverse'' malfunction in its pick-up trucks and 
quietly settled cases stemming from this alleged defect. It was 
not until several years later that Ford made a minimal effort 
to notify original owners by sending stickers alerting them 
that there was a problem. The stickers made no mention of the 
potential risks of serious injury or death. Unfortunately, 2.7 
million of these truck owners did not receive the warning. One 
victim of the alleged defect was Tom Schmidt. His parents, 
Leonard and Arleen Schmidt testified before the Subcommittee on 
Courts and Administrative Practice. During their lawsuit they 
learned that Ford had known about the problem as early as 1970 
and for many years, Ford had quietly settled cases with strict 
protective orders concealing information about the problem.\12\
---------------------------------------------------------------------------
    \12\1994 Hearing (testimony of Leonard and Arleen Schmidt); 
Maharaj, supra note 4.
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9. Side-saddle gas tanks

    Over the course of several years, General Motors quietly 
settled more than 200 cases brought by victims of fiery truck 
crashes involving the automaker's side-mounted gas tanks before 
the defect came to light. It was not until 1993, when General 
Motors sued Ralph Nader and the Center for Auto Safety for 
defamation, that lawyers discovered records showing that 
General Motors had been sued in approximately 245 individual 
gas tank pick-up truck cases. The earliest cases had been filed 
as far back as 1973. Almost all cases were settled and almost 
all of the settlements required the plaintiffs to keep the 
information they discovered secret.\13\
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    \13\2007 Hearing (testimony of Richard Zitrin); Maharaj, supra note 
4.
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10. Bridgestone/Firestone tires

    From 1992 to 2000, accidents caused by tread separations of 
Bridgestone and Firestone tires resulted in more than 250 
deaths and 800 injuries. Over the course of several years, 
Firestone quietly settled lawsuits relating to the tread 
separation, 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.\14\
---------------------------------------------------------------------------
    \14\Richard Zitrin, The Judicial Function: Justice Between the 
Parties, Or a Broader Legal Interest?, 32 Hofstra L. Rev. 1573, 1567 
(2004); Maharaj, supra note 4.
---------------------------------------------------------------------------

11. Cooper tires

    In 2002, Johnny Bradley's wife was killed, and he and his 
son were injured, in a Ford Explorer rollover accident. The 
accident was allegedly caused by tread separation in the SUV's 
Cooper Tires. While litigating the case, Mr. Bradley's attorney 
uncovered Cooper Tire documents that showed Cooper tires were 
prone to tread separation because of design defects. These 
documents had been kept secret through protective orders in 
numerous cases prior to the Bradleys' car accident. In 
Bradley's case against Ford and Cooper Tire, the jury found 
that Ford was not liable for the accident. Before the trial 
proceeded to the claims against Cooper, the claims were dropped 
and the parties involved agreed to settle with almost all 
litigation documents remaining confidential under a broad 
protective order. Mr. Bradley and his lawyer, familiar with the 
documents and unable to speak about the details due to 
protective orders, believe that if the documents were made 
public Cooper Tire would be forced to fix the tread separation 
problem.\15\
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    \15\2007 Hearing (testimony of Johnny Bradley, Jr.)
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12. All-terrain vehicles (ATVs)

    While the Consumer Product Safety Commission (CPSC) has 
long publicized information about ATV safety and maintained a 
reporting system for collecting data about injuries and deaths, 
it has not taken action on many alleged design and 
manufacturing defects. There continue to be cases filed in 
state and Federal courts about manufacturing and product design 
defects in ATVs. The defendants routinely obtain protective 
orders to keep information secret and plaintiffs often settle 
before trial. In a case filed in the Central District of 
Illinois, K.V. v. Kawasaki, the plaintiffs objected to the 
protective order sought by the defendants. In this case, a 
young boy was injured when his ATV flipped over in a corn 
field. The corn stalks protected him from being crushed, but 
the oil vent lacked a simple mechanism to prevent boiling hot 
oil from leaking out and severely burning 25 percent of the 
boy's body.\16\
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    \16\200 U.S. Dist. Ct. Motions 615230; 2006 U.S. Dist. Cot. Motions 
LEXIS 45118; Interview with Daniel Pope, Phebus & Koester, Oct. 22, 
2007.
---------------------------------------------------------------------------
    Opposing the protective order, the plaintiff argued that 
the defendant did not substantiate its claim that trade secrets 
satisfied the ``good cause'' showing, required under Rule 26(c) 
of the Federal Rules of Civil Procedure. The plaintiff also 
claimed that the health and safety risks of ATVs, well 
documented by the CPSC and the American Association of 
Pediatrics, justified rejecting the protective order because it 
would conceal information about the alleged defect. According 
to the plaintiff's attorney, the judge simply issued the 
protective order without opinion or written findings in 
response to the plaintiff's arguments. The case settled shortly 
thereafter. If this information were in the public domain, the 
boy's attorney believes that the information he uncovered 
during the lawsuit would either increase pressure on ATV 
manufacturers to make their products safer or pressure the CPSC 
to investigate and take action in response to the defects.

13. Playground equipment

    Miracle Recreation Company manufactured and sold a piece of 
playground equipment called Bounce Around the World. Dozens of 
lawsuits were brought against the company alleging that it was 
dangerous and caused serious injuries to young children, 
including severed limbs and crushed bones. For 13 years, the 
public and regulatory agencies remained in the dark about the 
potentially crippling equipment because the company insisted on 
settling lawsuits conditioned by confidentiality agreements. 
Approximately 80 children between the ages of four and five 
were seriously injured before the CPSC learned about the 
magnitude of the danger and the company recalled the merry-go-
rounds. Following the recall, the Department of Justice (DOJ) 
charged Miracle Recreation in a civil suit with failing to 
reveal reports of injuries to dozens of children.\17\
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    \17\Barry Meier, Legal Merry-Go-Round; Case Highlights Lack of Data 
Sharing, Newsday, June 5, 1998 at 3.
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14. Portable cribs

    In May 1998, 16-month-old Danny Keysar was strangled to 
death at his licensed childcare facility when a Playskool 
``Travel-Lite'' portable crib collapsed, trapping his neck in 
the ``V'' of its folded rails. Danny's parents sued the crib 
manufacturers, Kolcraft. During discovery, they learned that 
three prior lawsuits involving the same product defect had been 
settled secretly. Kolcraft offered Danny's parents a 
settlement, but only on the condition that they agreed to a 
secrecy provision. The parents would not accept a settlement 
that mandated their silence. Despite intense pressure to agree 
to a secret settlement, on the eve of trial, the parties 
reached a non-secret $3 million settlement agreement.\18\
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    \18\Jonathan Eig, How Danny Died, Chicago, Nov. 1998, http://
www.kidsindanger.org/docs/news/news_detail/1998_chicmag.pdf (last 
accessed June 23, 2011); Danny's story on the Kids in Danger website at 
http://www.kidsindanger.org/family-voices/danny/ (last accessed June 
23, 2011).
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15. Seroquel

    In Florida, plaintiffs' lawyers and Bloomberg News sued to 
force AstraZeneca to make public clinical studies about the 
harmful side effects of an antipsychotic drug, Seroquel, which 
were discovered in lawsuits that were subsequently dismissed. 
In 2009, the court unsealed some of the documents in question, 
but denied requests to release AstraZeneca's submissions to 
foreign regulators and sales representatives' notes about 
doctors' meetings. Despite a recent $68.5 million settlement, 
continued efforts to unseal crucial documents proved 
unsuccessful.

16. British Petroleum Gulf oil spill

    In April 2010, the Gulf Coast was devastated by a massive 
oil spill in the Gulf of Mexico. Numerous lawsuits were filed 
against British Petroleum. As the parties fight over crucial 
documents in those lawsuits, injured parties continue to accept 
secret settlements. These settlements may keep hidden documents 
that could shed light on potential future public health and 
safety risks.

17. Unintended acceleration problems

    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, 
which may have caused more than 80 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 the public would 
have known more about the risks sooner, and some of those lives 
could have been saved.

                  B. CIVIL SUITS UNCOVER EARLY DANGERS

    Civil lawsuits are often a critical first source of 
information about dangerous products.\19\ For example, in a 
class action case against Eli Lilly related to harmful side-
effects of their drug Zyprexa, lawyers uncovered documents that 
showed Eli Lilly knew of Zyprexa's side effects and did not 
adequately warn doctors or consumers. This lawsuit uncovered 
information that the FDA did not have access to and did not 
know about until information was leaked to The New York 
Times.\20\ Had this information been available to the public 
sooner, consumers would have been able to make an informed 
decision about the benefits and risks of taking Zyprexa.
---------------------------------------------------------------------------
    \19\Catherine T. Struve, The FDA and the Tort System: Postmarketing 
Surveillance, Compensation, and the Role of Litigation, 5 Yale J. 
Health Pol'y L. & Ethics 587, 664 (2005); Wendy Wagner, When All Else 
Fails: Regulating Risky Products Through Tort Litigation, 95 GEO. L.J. 
693, 695-696 (2007), ``. . . the tort system plays an indispensable 
role in supplementing agency regulation of risky products and 
activities. In consumer and health protection, for example, the tort 
system provides both more tools and more rewards than the regulatory 
system for enterprising plaintiffs to uncover asymmetric information 
held by regulated parties regarding their products' risks.''
    \20\Berenson, supra note 4.
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    Victims who suffer injuries related to a consumer product 
often promptly report their injuries to the CPSC or other 
relevant regulatory agencies. However, victims tend to learn 
specific information about a product defect later, during the 
course of a lawsuit. By this time, they are usually bound by 
protective orders that prohibit disclosure of everything they 
learn during the course of discovery. Because of extremely 
restrictive confidentiality agreements, reporting this 
information to a regulatory agency could mean violating a court 
order and jeopardizing their ability to recover their losses. 
Furthermore, when damaging information is revealed during 
discovery, the company quickly and quietly settles the case 
with a settlement that is almost always conditioned on total 
confidentiality. Thus, the public and the regulatory agencies 
are left in the dark about a dangerous product.

        C. REFORM IS NEEDED TO PROTECT PUBLIC HEALTH AND SAFETY

    Current practices do not adequately balance public 
interests with interests in confidentiality. Judges are not 
limited in the factors they may consider when deciding 
protective orders. However, in the many examples cited above, 
it is clear that judges do not always consider public health 
and safety.
    Judge Joseph Anderson, District Court Judge for the 
District of South Carolina, testifying before the Subcommittee 
on Antitrust, Competition Policy and Consumer Rights, 
acknowledged that while some judges are mindful of the court 
secrecy problem, many judges, facing ever increasing case 
loads, are ``eager to achieve speedy and concrete resolutions 
to their cases, and ever-mindful of the need for judicial 
economy, many judges all too often acquiesce to the demands for 
court-ordered secrecy.''\21\
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    \21\2007 Hearing (testimony of Judge Anderson)
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    Leslie Bailey, a public interest lawyer with Public Justice 
who regularly represents clients who oppose protective orders 
that are against the public interest, testified that in her 
experience with requests for protective orders, judges, who are 
often managing heavy caseloads, are inclined to agree to 
whatever type of protection the parties agree on and easily 
find that to be enough good cause.\22\
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    \22\2007 Hearing (testimony of Leslie Bailey)
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    Although plaintiffs may be concerned about notifying the 
public of a potential safety hazard, they often agree to 
secrecy out of perceived necessity. Leslie Bailey noted:

          A plaintiff's lawyer may be so concerned with gaining 
        access to the key documents she needs to present her 
        client's case that she does not recognize an unlawful 
        protective order--or may decide it isn't worth slowing 
        down the litigation to fight. And when faced with a 
        settlement that will compensate their clients--
        especially if the defendant is willing to pay a premium 
        for secrecy--few plaintiffs' attorneys balk at the 
        condition that the case and the settlement be kept 
        secret. To fight would be to delay justice for the 
        client, or possibly to lose the chance to settle 
        altogether, and many [clients] cannot afford that 
        risk.\23\
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    \23\Id.

    As a result of the differing interests of judges, 
plaintiffs, defendants and the public, current litigation 
practices do not adequately protect the public from court-
endorsed secrecy that conceals public health and safety 
hazards.

                          D. CURRENT PRACTICES

1. Protective orders

    Under Rule 26(c) of the Federal Rules of Civil Procedure, a 
party or any person from whom discovery is sought may move for 
a protective order to keep the discovery materials 
confidential. The court may, for ``good cause,'' issue an order 
to protect a party or person from annoyance, embarrassment, 
oppression or undue burden or expense. Jurisdictions have 
extensive case law dictating what must be shown to establish 
``good cause.'' The ``good cause'' standard varies widely by 
jurisdiction from little more than a stipulation from both the 
parties that the order will expedite discovery to a more 
rigorous showing that there is a specific need to keep the 
information confidential.

2. Court records

    Requests to seal court records or documents filed with the 
court are generally held to a higher standard than that 
required to obtain a protective order due to First Amendment 
protections.\24\
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    \24\Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); 
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press Enterprise 
Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984).
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3. Settlement agreements

    Under current law, there are no limitations on settlement 
agreements, reached privately or filed with the court, 
regarding the restriction of public health or safety 
information. As with protective orders, judges are free to 
consider public health and safety when reviewing other orders 
that restrict access to information, including settlement 
agreements, but no such consideration is required.
    Parties in a civil action may choose to resolve pending 
litigation by agreeing to a settlement that contains a 
confidentiality provision sealing some or all of the discovery 
documents uncovered during litigation, the terms of the 
settlement, the fact that a settlement was reached and the fact 
that a case was ever filed.
    Even when not required by statute, parties may choose to 
seek judicial approval of a confidential settlement and file 
the settlement with the court in order to create a court order 
of confidentiality. Once a court approves the confidential 
settlement, the settlement is sealed away and stored by the 
court. Since the court retains jurisdiction over the 
settlement, the court can issue a contempt order against a 
party that violates the confidentiality order. In this 
situation, filing a separate lawsuit is not necessary for the 
court to issue a contempt order.
    Often, parties do not seek judicial approval of the 
confidential settlement, but instead agree to a private 
settlement that is not filed with the court. In these 
instances, the court docket only reveals that the action was 
dismissed by an agreement between the parties. These 
settlements are not accessible to the public. If a party to the 
settlement violates the settlement's confidentiality provision, 
a breach of contract action must be filed before the court may 
step in and enforce this provision.

                      E. EFFECT OF THE LEGISLATION

    The Sunshine in Litigation Act of 2011 will not displace 
current practices under the Federal Rules of Civil Procedure or 
common law. Instead, it merely requires an additional step--
consideration of public health and safety--before issuing 
protective orders, orders sealing court records, or settlement 
agreements in cases pleading facts relevant to public health 
and safety. By creating this additional requirement, S. 623 
will ensure that court-endorsed confidentiality protection does 
not jeopardize the public's ability to learn about potential 
health or safety dangers. The additional requirement applies 
only to cases pleading facts relevant to public health and 
safety--a change made this Congress to clarify the reach of the 
bill.
    A minority of Senators on this Committee have raised the 
concern that this legislation would lead to the filing of 
frivolous lawsuits, or change discovery rules during lawsuits. 
However, nothing in the purpose or content of this legislation 
would alter lawsuit filing standards, which were recently 
heightened by the Supreme Court. Further, nothing in this 
legislation alters time-honored discovery rules during 
litigation. Similar measures that have been in effect for more 
than 15 years in Texas and Florida go even further than this 
bill, and they have not resulted in increased trials or 
litigation over discovery, or a decrease in settlements.
    The bill will not burden the Federal court system. It will 
affect only a small subset of Federal cases, those that plead 
facts relevant to public health and safety, and judges 
regularly weigh competing interests in balancing tests like the 
one required by this bill.\25\ A minority of Senators on this 
Committee have raised the concern that this bill would burden 
courts by requiring judges to review all documents for 
relevance to public health and safety. However, that is untrue. 
The burden of proof rests on the proponent of the order to 
point the court directly to the information it wants sealed, 
and make the argument for such sealing.
---------------------------------------------------------------------------
    \25\2007 Hearing (testimony of Judge Anderson)
---------------------------------------------------------------------------

1. Protective orders

    Some judges already consider the public interest in 
disclosure of public health and safety information when 
reviewing protective orders. For those judges, the effect of 
this legislation will be minimal. For those who do not, S. 623 
simply requires them to make such a consideration.
    The vast majority of cases in the Federal court system do 
not plead facts relevant to public health and safety. In these 
cases, this law will not apply. Therefore, in most cases, 
judges will be able to issue a protective order without making 
a significant inquiry based on S. 623.
    In the relatively small number of cases that do plead facts 
relevant to public health and safety, and where a judge finds 
that such an order would restrict disclosure of information 
relevant to protecting the public, the judge will have to weigh 
interests in disclosure with interests in confidentiality. 
According to S. 623, in these cases a judge may only issue the 
order after making findings of fact that the public interest in 
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. 
Under this balancing test, judges will be required to make a 
more detailed inquiry.
    This additional step required for obtaining a protective 
order will not overburden judges. First, the balancing test 
will only be required in a limited number of cases. Second, S. 
623 places the burden of proof on the proponent of the order. 
It will be their responsibility to summarize and distill the 
information that would be subject to the protective order. As 
Judge Anderson told the Subcommittee on Antitrust, Competition 
Policy and Consumer Rights, judges regularly engage in 
balancing tests like the one required in S. 623.\26\ Finally, 
judges can use magistrate judges and special masters to assist 
them in more complex cases.
---------------------------------------------------------------------------
    \26\Id.
---------------------------------------------------------------------------
    The bill recognizes that there are appropriate uses for 
protective orders, such as protecting trade secrets. It makes 
sure that such information is protected by giving judges 
discretion to consider any confidentiality interests that are 
important to the proponent. Furthermore, the bill does not 
limit judges' existing obligations under current law and 
practice to protect information that truly deserves 
confidentiality.
    The legislation strongly protects trade secrets and it is 
expected that judges, as they are already required to do, will 
give ample consideration to them as part of the balancing test. 
However, when a party claims that they need a protective order 
because of a trade secret, they must demonstrate that their 
interest in protecting the trade secret is not outweighed by 
the public interest in disclosure of a public health or safety 
hazard. In other words, this bill does not permit so-called 
trade secrets that pose a threat to public health and safety--
such as a defective tire design--to justify court-endorsed 
secrecy.
    A protective order entered as a result of the balancing 
test shall be no broader than necessary to protect the privacy 
interest asserted. For example, when a party or parties request 
a protective order for a trade secret, the judge should only 
protect the materials that refer to the actual trade secret. If 
the items sought to be protected contain information about a 
potential public health or safety hazard, then to the extent 
possible, the order shall only cover the trade secret and not 
other information about the potential hazard. As a result, a 
blanket protective order over all materials exchanged during 
discovery cannot be justified by a claim that it deserves 
protection because of a trade secret or other interest in 
confidentiality.

2. Court records

    The bill requires judges to take an additional step when 
considering the existing First Amendment law dictating when 
court records may be sealed. The bill does not purport to 
replace existing law interpreting the First Amendment. Instead, 
it creates an additional reason for openness when public health 
or safety is at issue.

3. Settlement agreements

    The legislation requires judges to apply the provisions in 
subsection (a)(1) prior to approving or sealing a settlement 
agreement. As with protective orders, if the settlement 
agreement would restrict disclosure of information relevant to 
protecting public health or safety, such as requiring the 
destruction of documents or prohibiting a plaintiff from 
discussing potential public health or safety dangers related to 
his or her case, the judge must apply the balancing test in 
subsection (a)(1)(B) to determine if the public interest in 
disclosure is outweighed by a specific and substantial interest 
in confidentiality.
    Under subsection (c), S. 623 will also impact settlements 
involving public health or safety, that otherwise would not be 
reviewed under subsection (a), when and if parties petition the 
court to enforce such settlements. For example, a case may 
settle privately, outside of court, before any requests for 
protective orders. In these cases, a settlement may be 
conditioned on confidentiality and as a result conceal a 
potential public health or safety hazard and prevent the 
plaintiff from disclosing any and all information about their 
case. A plaintiff may be prohibited from disclosing everything 
from the nature of their injury, to the evidence they obtained 
independent of the defendant, or even the very fact that they 
sued the defendant.
    Subsection (c) prevents courts from facilitating 
defendants' efforts to conceal public health and safety 
information. It says that a court shall not enforce a 
settlement that restricts a party's ability to discuss a 
settlement that impacts public health or safety. This will 
protect plaintiffs, who were forced into out-of-court 
settlement agreements with restrictive gag orders, from being 
hauled into court by a defendant for speaking out about their 
settlements involving public health or safety hazards. 
Subsection (c), paragraph (2) makes it clear that the potential 
for nonenforcement of a settlement agreement will only apply in 
cases that restrict the disclosure of information relevant to 
the protection of public health or safety. Thus, in the vast 
majority of cases, S. 623 will not affect a party's ability to 
make or enforce confidentiality provisions in settlement 
agreements.
    As we have seen with state and Federal court rules that 
limit the ability to seal settlement agreements, the bill is 
not likely to either increase the number of cases that proceed 
to trial or decrease the frequency of settlements. More than 15 
years ago, Florida and Texas adopted a law and court rule, 
respectively, that limit the ability to conceal public health 
and information in civil lawsuits.\27\ Critics of these 
measures argued that the court system would be severely 
disrupted because parties would no longer have the same 
incentives to settle their cases, resulting in greater demands 
on trial judges. Opponents made similar claims when the Federal 
District Court for the District of South Carolina unanimously 
adopted Local Rule 5.03(c), which prohibits all sealed 
settlements.\28\ To date, none of these dire predictions has 
come to fruition. In fact, South Carolina's district courts 
have actually experienced a decrease in trials and cases 
continue to settle.\29\
---------------------------------------------------------------------------
    \27\Fla. Stat. Sec. 69.081 (2000); Tex. R. Civ. Pro. 76a.
    \28\Joseph F. Anderson Jr., Secrecy in the Courts: At the Tipping 
Point?, presented Vil. L. Rev. Norman J. Shachoy Symposium: The Future 
of Judicial Transparency, Feb. 2, 2008.
    \29\Id.
---------------------------------------------------------------------------

4. Personally identifiable information

    When weighing the interest in maintaining confidentiality, 
it is intended that judges will use procedures they currently 
use to protect personally identifiable information and national 
security information. Should this information be at issue when 
a judge conducts the balancing test, subsection (d) establishes 
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.
    Although under the balancing test in subsection (a)(1), 
judges would be able to protect this information under current 
practices, this subsection is intended to clarify that S. 623 
would not compromise an individual's personally identifiable 
information that, in all likelihood, has no bearing on 
protecting public health or safety. For example, a judge may 
find that the public has an interest in the disclosure of 
medical information that describes the harmful side effects of 
a drug because they pose a threat to public health and safety. 
However, the personally identifiable information connected to 
that medical information will remain confidential subject to 
the rebuttable presumption in subsection (d).

5. Classified information

    Similarly, S. 623 specifically addresses national security 
information in subsection (e). A rule of construction states 
that when weighing the interest in maintaining confidentiality 
under Section (a), nothing in this section shall prohibit a 
court from entering an order that would restrict the disclosure 
of information, or an order restricting access to court 
records, if in either instance such order is necessary to 
protect from public disclosure information classified under 
criteria established by an Executive order to be kept secret in 
the interest of national defense or foreign policy. Further, 
nothing in this section shall be construed to permit, require 
or authorize the disclosure of information that is classified 
under criteria established by an Executive order to be kept 
secret in the interest of national defense or foreign policy. 
Again, judges have the ability to protect this information 
under current law and under the balancing test in subsection 
(a). However, this subsection is included to make clear that S. 
623 does not alter a judge's existing obligations to issue 
protective orders, or orders sealing court records or 
settlements when classified information is at issue.

          II. History of the Bill and Committee Consideration


       A. COMMITTEE CONSIDERATION--103RD THROUGH 111TH CONGRESSES

    The Sunshine in Litigation Act was first introduced by 
Senator Kohl in the 103rd Congress as S. 1404. On April 20, 
1994, the Judiciary Committee's Subcommittee on Courts and 
Administrative Practice held a hearing, ``S. 1404, 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.'' On June 
27, 1994, the Sunshine in Litigation Act, with some minor 
changes,\30\ was offered as an amendment to S. 687, the Product 
Liability Fairness Act. On June 28, 1994, the Senate conducted 
a roll call vote on a motion to table the amendment.\31\ The 
amendment was tabled by a vote of 51 to 49.
---------------------------------------------------------------------------
    \30\The differences between the amendment and the bill that was 
reported out of Committee were: subsection (a)(1) stated, ``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--''; 
subsection (a)(1)(B)(i) stated, ``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 the amendment did not include 
anything after subsection (b).
    \31\Vote no. 168, 103rd Congress, 2nd Session (June 28, 1994).
---------------------------------------------------------------------------
    The Sunshine in Litigation Act was introduced again in the 
104th through 109th Congresses. In each Congress it was 
referred to the Committee on the Judiciary and no further 
action was taken.
    In the 110th Congress, Senator Kohl introduced S. 2449, the 
Sunshine in Litigation Act of 2007, on December 11, 2007. 
Senator Patrick Leahy (D-VT) was an original cosponsor. Also on 
December 11, 2007, the Senate Judiciary Committee's 
Subcommittee on Antitrust, Competition Policy and Consumer 
Rights held a hearing, ``The Sunshine in Litigation Act: Does 
Court Secrecy Undermine Public Health and Safety?'' Testimony 
was received from five witnesses including Johnny Bradley, Jr. 
and Judge Joseph Anderson, Jr., District Court Judge for the 
District of South Carolina.
    Johnny Bradley, Jr. testified about his experience as a 
plaintiff in a case against Cooper Tire Company related to a 
serious car accident that killed his wife and injured him and 
his son. During discovery, Mr. Bradley learned that there had 
been dozens of cases involving Cooper Tire that ended with 
confidential settlements. He told the Subcommittee that during 
his case, his lawyer discovered documents showing that Cooper 
Tires posed a threat to public safety. Due to protective orders 
entered by the judge during the lawsuit, Mr. Bradley is unable 
to publicly speak about these documents.
    Judge Joseph Anderson testified about his views concerning 
the adverse consequences of court-ordered secrecy. In his 
experience, litigants frequently request judges ``approve'' 
their settlements even when the law does not require judicial 
approval. Specifically, judges are often asked to enter orders 
restricting public access to settlement information and 
sometimes the case history. Litigants prefer to involve the 
trial judge in order to ensure the court's power to enforce the 
confidentiality of the agreement. Judge Anderson noted that 
some judges already do consider public health and safety when 
making these decisions. But, he recognized that many judges 
have very large caseloads and, as a result, they often agree to 
court-ordered secrecy with little more than consent of all 
parties. Judge Anderson testified about cases he was directly 
involved in and cases he was aware of where judges have agreed 
to requests for court-ordered secrecy where one could 
reasonably argue that public interest and public safety should 
have required openness.
    Judge Anderson also testified about the success of a local 
rule, unanimously adopted in South Carolina's District Court in 
2002, which bans secret settlements. Contrary to the claims of 
those who opposed the rule, data indicates it has not resulted 
in more trials and that cases continue to settle. In fact, the 
number of trials has actually decreased since adoption of the 
rule.
    Judge Anderson has endorsed S. 623, noting:

        [it is] carefully-crafted legislation [that] proposes a 
        nuanced approach that simply requires judges to employ 
        a balancing test--weighing the need for secrecy 
        compared to potential harm to the public--and then to 
        make specific factual findings before entering 
        confidentiality orders. This `balancing test' would not 
        be a new experience: weighing competing interests is 
        what judges do on a daily basis.\32\
---------------------------------------------------------------------------
    \32\Anderson, supra note 28.

    On January 28, 2008, Senator Lindsey Graham (R-SC) signed 
on as a cosponsor. On March 6, 2008, the Judiciary Committee 
met in executive session to consider the bill. Senator Kohl 
offered an amendment in the nature of a substitute that made 
four changes to the bill. Two changes were technical. One 
changed the bill title to the ``Sunshine in Litigation Act of 
2008.'' The other added to subsection (c) a reference to 
subsection (a)(1) to make clear that this provision only 
applies to cases involving public health and safety. The other 
two changes were rules of construction that make it clear that 
the bill does not compromise protections for classified 
information or personally identifiable information related to 
financial, health or other related information. The substitute 
amendment was accepted by unanimous consent.
    The Committee then voted to report the Sunshine in 
Litigation Act of 2008, with an amendment in the nature of a 
substitute, favorably to the Senate. The Committee proceeded by 
roll call vote as follows:
Tally: 12 Yeas, 6 Nays, 1 Pass
Yeas (12): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl (D-
        WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), 
        Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI), 
        Grassley (R-IA), Graham (R-SC)
Nays (6): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Cornyn (R-
        TX), Brownback (R-KS), Coburn (R-OK)
Pass (1): Specter (R-PA)
    The bill was introduced again in the 111th Congress on 
March 5, 2009. The Sunshine in Litigation Act of 2009, S. 537, 
was introduced by Senator Kohl, with Senator Lindsey Graham (R-
SC) joining as an original cosponsor. It was referred to the 
Committee on the Judiciary and no further action was taken.

B. INTRODUCTION OF THE BILL AND COMMITTEE CONSIDERATION--112TH CONGRESS

    The Sunshine in Litigation Act of 2011, S. 623, was 
introduced by Senator Kohl on March 17, 2011. On March 28, 
2011, Senator Lindsey Graham (R-SC) joined as a cosponsor. On 
April 8, Senator Patrick Leahy signed on as a cosponsor.
    On May 19, 2011, the Judiciary Committee met in executive 
session to consider the bill. Senator Kohl offered an amendment 
in the nature of a substitute that made three changes to the 
bill. One restricted the application of the bill to cases in 
which the pleadings state facts that are relevant to public 
health and safety. The second incorporated the relevant 
language from the Classified Information Procedures Act (CIPA) 
into the provisions protecting national security information. 
The original bill referred to CIPA, and the substitute 
amendment incorporated the particular CIPA language, clarifying 
that those protections would remain in place. The final change 
made clear that the bill would not provide a basis for the 
granting of a motion to reconsider, modify, amend or vacate a 
protective order or settlement order entered into before the 
effective date, or a basis for the reversal on appeal of a 
protective order or settlement order entered into before the 
effective date. The substitute amendment was accepted by 
unanimous consent.
    The Committee then voted to report the Sunshine in 
Litigation Act of 2011, with an amendment in the nature of a 
substitute, favorably to the Senate. The Committee proceeded by 
roll call vote as follows:
Tally: 12 Yeas, 6 Nays
Yeas (12): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA), Schumer 
        (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
        MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT), 
        Grassley (R-IA), Graham (R-SC)
Nays (6): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Cornyn (R-
        TX), Lee (R-UT), Coburn (R-OK)
    Also on May 19, 2011, Senator Dianne Feinstein (D-CA) 
joined the bill as a cosponsor.

              III. Section-by-Section Summary of the Bill


Section 1. Short title

    This section provides that the legislation may be cited as 
the ``Sunshine in Litigation Act of 2011.''

Section 2. Restrictions on protective orders and sealing of cases and 
        settlements

    Section 2 (a) amends Chapter 111 of title 28 of the United 
States Code, by adding section 1660 to the end of Chapter 111. 
Title 28 of the U.S. Code governs the Federal judiciary and 
Federal judicial procedure. Under current law, Federal courts 
may enter protective orders under Rule 26(c) of the Federal 
Rules of Civil Procedure simply by a showing that ``good 
cause'' for the protective order exists. The new section 1660 
augments this ``good cause'' showing by requiring a court to 
make additional findings of fact for certain protective orders 
under Rule 26(c) of the Federal Rules of Civil Procedure. In 
the case of court records and sealed settlement agreements, the 
new section augments existing laws, including common law and 
First Amendment law, dictating the standard for sealing such 
items.
    Subsection (a), paragraph (1) requires that before entering 
a discovery protective order, an order restricting access to 
documents filed with the court, an order sealing a settlement 
agreement that would restrict the disclosure of such 
information, or an order restricting access to court records in 
a civil case in which the pleadings state facts that are 
relevant to the protection of public health or safety, the 
court must make certain findings regarding public health and 
safety.
    Subparagraph (A) states that a judge may enter an order 
referenced in (a)(1) when such order would not restrict the 
disclosure of information which is relevant to the protection 
of public health and safety.
    Subparagraph (B), clause (i) states that in the event that 
a judge finds that such an order would restrict disclosure of 
information relevant to protecting public health and safety, 
the judge may only issue the order after making findings of 
fact that the public interest in 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.
    Clause (ii) states that the protective order entered as a 
result of the balancing test in clause (i) shall be no broader 
than necessary to protect the privacy interest asserted.
    Paragraph (2) states that 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, the court makes a 
separate finding of fact that the requirements of paragraph (1) 
have been met.
    Paragraph (3) states that the party who is the proponent 
for the entry of an order, as provided in this section, shall 
have the burden of proof in obtaining such an order.
    Paragraph (4) states that section 2 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 stipulation of the parties.
    Paragraph (5), subparagraph (A) states that the provisions 
of this section shall not constitute grounds for withholding 
information in discovery that is otherwise discoverable under 
Rule 26 of the Federal Rules of Civil Procedure.
    Paragraph (5), subparagraph (B) states that no party shall 
request, as a condition for the production of discovery, that 
another party stipulate to an order that would violate this 
section.
    Subsection (b), paragraph (1) states that a court shall not 
approve or enforce any provision of an agreement between or 
among parties to a civil action in which the pleadings state 
facts that are relevant to the protection of public health or 
safety, 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.
    Subsection (b), paragraph (2) states that any such 
information disclosed to a Federal or State agency shall be 
confidential to the extent provided by law.
    Subsection (c), paragraph (1) states that, 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 one or more parties from--(A) 
disclosing that settlement was reached or the terms of such a 
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. Paragraph 
(2) states that paragraph (c)(1) does not apply if the court 
has made findings of fact that the public interest in the 
disclosure of potential public health or safety hazards is 
outweighed by a specific and substantial interest in 
maintaining the confidentiality of the information.
    Subsection (d) is a rule of construction which says that 
when weighing the interest in maintaining confidentiality under 
Section (a), there is 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.
    Subsection (e) is a rule of construction which says that 
when weighing the interest in maintaining confidentiality under 
Section (a), nothing in this section shall prohibit a court 
from entering an order that would restrict the disclosure of 
information, or an order restricting access to court records, 
if in either instance such order is necessary to protect from 
public disclosure--(A) information classified under criteria 
established by an Executive order to be kept secret in the 
interest of national defense or foreign policy; or (B) 
intelligence sources and methods. Further, nothing in this 
section shall be construed to permit, require, or authorize the 
disclosure of information that--(A) is classified under 
criteria established by an Executive order to be kept secret in 
the interest of national defense or foreign policy; or (B) 
reveals intelligence sources and methods.
    Section 2 (b) amends the table of sections of chapter 111 
of title 28 of the United States Code by adding after the item 
relating to section 1659--``1660. Restrictions on protective 
orders and sealing of cases and settlements.''

Section 3. Effective date and application

    This section states that the effective date of the 
amendments made by this Act shall take effect 30 days after the 
date of enactment of this Act; and apply only to orders entered 
in civil actions or agreements entered into on or after such 
date; and not provide a basis for the granting of a motion to 
reconsider, modify, amend or vacate a protective order or 
settlement order entered into before the effective date, or a 
basis for the reversal on appeal of a protective order or 
settlement order entered into before the effective date.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 623, 
the following estimate and comparison prepared by the director 
of the Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                                      May 25, 2011.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 623, the Sunshine in 
Litigation Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 623--Sunshine in Litigation Act of 2011

    S. 623 would, under certain conditions, prevent federal 
judges from issuing protective orders restricting the use of 
litigation records that could influence public health or 
safety. The bill would take effect 30 days after enactment and 
would apply to protective orders in civil actions or 
arrangements entered on or after that date.
    CBO estimates that enacting S. 623 would have no 
significant impact on the federal budget. The bill could alter 
and possibly increase the workloads of federal attorneys, court 
staff, and judges. However, CBO estimates that any resulting 
increase in spending would be small and subject to the 
availability of appropriated funds. Enacting S. 623 would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    S. 623 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 623.

                             VI. Conclusion

    The Sunshine in Litigation Act of 2011, S. 623, is a 
straightforward and narrowly targeted measure that will ensure 
that court-endorsed secrecy will not jeopardize public health 
and safety by concealing information about potential health or 
safety dangers from consumers and regulatory agencies.

                          VII. Minority Views

                              ----------                              


MINORITY VIEWS FROM SENATORS KYL, HATCH, SESSIONS, CORNYN, COBURN, AND 
                                  LEE

    The ``Sunshine in Litigation Act'' has been proposed 
numerous times since 1991, most recently as S. 623. Each time, 
the bill has been vehemently opposed by industry, lawyers, and 
judges. The Act purportedly would prevent judges in civil cases 
from issuing protective orders that would keep information 
confidential if it is relevant to the protection of public 
health or safety. In reality, however, this bill would simply 
provide a tool to trial lawyers to conduct fishing expeditions 
and file frivolous lawsuits with impunity.

                        THE BILL IS UNNECESSARY

    Proponents of the legislation cite anecdotal evidence of 
defendants covering up public health and safety problems via 
protective orders granted during litigation. However, as Judge 
Mark Kravitz has noted, the cited cases have all occurred in 
state courts.\33\ Judge Kravitz further emphasized that there 
is no evidence that such problems have occurred in the federal 
court system the only system that this legislation would 
affect.\34\ This Act is directed at a problem that does not 
exist.
---------------------------------------------------------------------------
    \33\Sunshine in Litigation Act of 2009: Hearing before the Subcomm. 
on Com. and Admin. Law of the House Comm. on the Judiciary, 111th 
Cong., 1st Sess. (June 4, 2009) at 52 (statement of Mark Kravitz) 
[hereinafter ``Hearing of June 4, 2009''].
    \34\Hearing of June 4, 2009 at 52 (statement of Mark Kravitz).
---------------------------------------------------------------------------
    Federal Rule of Civil Procedure (FRCP) 26 already allows 
judges to weigh the need for protective orders against public 
or private concerns when such an order is challenged. The FRCP 
were created, and are normally amended, through the Rules 
Enabling Act (REA), which allows the Judicial Conference to 
create carefully crafted rules that are presented by the 
Supreme Court to Congress for approval. Changes are made in 
this manner to ensure that the rules governing federal courts 
are consistent with the needs of courts, lawyers, and all 
parties to litigation. Not only would this legislation 
superfluously modify the FRCP, it does so in a manner contrary 
to the REA.
    The Judicial Conference has repeatedly strongly criticized 
this bill and has conducted studies showing that the 
legislation serves no purpose. The Conference found that only 
about six percent of civil cases see requests for protective 
orders.\35\ In the majority of these cases, the order had no 
impact on public health or safety. And of the cases where it 
did, ``the empirical data showed no evidence that protective 
orders create any significant problem of concealing information 
about public hazards.''\36\ Additionally, the study found that 
in cases that raised public health or safety concerns, there 
was sufficient information to inform citizens of the health 
risks contained in publicly available court documents.\37\ 
Last, the study concluded that judges usually will only grant 
protection orders for information that needs to be protected, 
and judges tend to recognize the importance of allowing access 
to data concerning public health risks.\38\
---------------------------------------------------------------------------
    \35\Hearing of June 4, 2009 at 58 (written testimony of Mark 
Kravitz).
    \36\Hearing of June 4, 2009 at 58 (written testimony of Mark 
Kravitz).
    \37\Hearing of June 4, 2009 at 58 (written testimony of Mark 
Kravitz).
    \38\Hearing of June 4, 2009 at 60 (written testimony of Mark 
Kravitz).
---------------------------------------------------------------------------

             THE BILL'S ADVERSE EFFECTS ON CIVIL LITIGATION

    This act will drive up the costs of litigation in a number 
of ways. Without the certainty that a protective order will be 
upheld, litigants will raise significantly more objections to 
litigation discovery in order to protect confidential 
information. Parties will be less willing to submit to 
discovery if they believe information will be disclosed to the 
public. This will inevitably result in expensive court battles, 
putting a greater burden on courts as well as the parties 
themselves. This is an unacceptable cost, especially when 
weighed against the limited beneficial effects that the bill 
would have.
    Courts would be further burdened by this legislation 
because they will be required to ensure that all pre-discovery 
documents do not contain any information concerning public 
health or safety hazards. In Seattle Times Co. v. Rhinehart, 
467 U.S. 20, 33 (1984), the Supreme Court held that pre-
discovery materials are private matters and are not meant for 
the public. This bill, however, would require judges to scour 
these documents, which can be in the millions of pages, for any 
information that might concern a public health or safety 
hazard. Currently, to reduce the costs of litigation and speed 
up the discovery process, parties will frequently conduct 
discovery without judicial supervision. Passing this 
legislation will make this money-saving option impossible. 
Burdening these pre-discovery and discovery solutions would 
only delay discovery and put added strain on judges, who 
frequently already have heavy case loads.
    Chilling discovery in this manner would further increase 
the costs of litigation by disincentivizing parties to settle. 
By forcing documents to be disclosed regardless of the outcome 
of a suit, this bill removes a bargaining chip for litigants to 
settle outside of court once discovery begins.
    This bill would also encourage lawyers to go on fishing 
expeditions seeking information in discovery that would 
otherwise be protected. This would potentially allow frivolous 
lawsuits to be filed with impunity. While most of these 
lawsuits would be thrown out due to trial court discretion, 
some of them would inevitably go to trial and be a drain on 
court resources. And of course, even frivolous lawsuits that 
are disposed of before trial needlessly consume valuable public 
and private resources.

                               CONCLUSION

    We stand in opposition to the ``Sunshine in Litigation Act 
of 2011'' for the same reasons similar legislation has been 
rejected by congress since 1991. There is no benefit to 
enacting S. 623 into law--there is no evidence that protection 
orders are abused in federal courts. The only effect of this 
bill would be to increase litigation costs and burdens on 
federal judges.

                                   Jon Kyl.
                                   Orrin G. Hatch.
                                   Jeff Sessions.
                                   John Cornyn.
                                   Tom Coburn.
                                   Mike Lee.

      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 623, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                         28 U.S.C. CHAPTER 111

SEC. 1660. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF CASES AND 
                    SETTLEMENTS

    (a)(1) Except as provided under subsection (e), 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 of 
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 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--
          (1) Shall prohibit a court from entering an order 
        that would restrict the disclosure of information, or 
        an order restricting access to court records, if in 
        either instance such order is necessary to protect from 
        public disclosure--
                  (A) information classified under criteria 
                established by an Executive order to be kept 
                secret in the interest of national defense or 
                foreign policy; or
                  (B) intelligence sources and methods; or
          (2) shall be construed to permit, require, or 
        authorize the disclosure of information that--
                  (A) is classified under criteria established 
                by an Executive order to be kept secret in the 
                interest of national defense or foreign policy; 
                or
                  (B) reveals intelligence sources and methods.

                      APPENDIX FOR MINORITY VIEWS

                                  American Bar Association,
                                    Washington, DC, April 13, 2009.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Chairman Leahy: I am writing on behalf of the American 
Bar Association to voice our strong opposition to S. 537, the 
``Sunshine in Litigation Act of 2009.''
    The Act would change Federal Rule of Civil Procedure 26(c) 
by limiting a court's ability to enter an order in a civil case 
(1) restricting disclosure of information obtained through 
discovery; (2) approving a settlement agreement restricting the 
disclosure of such information; or (3) restricting access to 
court records in civil cases unless the court makes certain 
findings that the order would not restrict the disclosure of 
information relevant to the protection of public health or 
safety, or that the public interest in disclosure of such 
information is outweighed by a specific interest in maintaining 
the confidentiality of the information and that the protective 
order is no broader than necessary to protect the privacy 
interest asserted.
    The ABA opposes S. 537 for two reasons. First, the bill 
would circumvent the Rules Enabling Act, the procedure 
established by Congress for revising rules in the federal 
courts. Second, the bill would impose additional, unnecessary 
requirements on, and restrict the discretion of, federal courts 
in ways that will only increase the burdens of litigation in 
both time and expense. The existing provisions of Rule 26 are 
currently operating to protect the public interest against 
unnecessary restrictions on information bearing on public 
health and safety, and protective orders are important to 
facilitate the prompt flow of discovery in litigation without 
imposing the additional burdens contemplated in the bill.
Rules Enabling Act issues
    S. 537 is an unwise retreat from the balanced and inclusive 
process established by Congress in the Rules Enabling Act. The 
Rules Enabling Act process is based on three fundamental 
concepts:
    (1) the essential, central role of the judiciary in 
initiating and formulating judicial rulemaking;
    (2) the use of procedures that permit full public 
participation, including participation by members of the legal 
profession, in considering changes to the rules; and (3) 
congressional review before changes are adopted.
    S. 537 would depart from this balanced and inclusive 
process. The failure to follow the processes in the Rules 
Enabling Act would frustrate the purpose of the Act and could 
do harm to the effective functioning of the judicial system.
Substantive issues
    The current version of Rule 26(c) and the case law applying 
it give judges appropriate authority to determine when to enter 
a protective order and what provisions should or should not be 
in it in light of the particular facts and circumstances of 
each case. There are three substantive flaws in the proposed 
legislation:
    First, there is no demonstrable deficiency in the current 
version of Rule 26( c) that requires a change. The Committee on 
Rules of Practice and Procedure of the Judicial Conference of 
the United States (the ``Rules Committee'') reported to this 
Committee in 2008 that empirical studies since 1991 show ``no 
evidence that protective orders create any significant problem 
of concealing information about public hazards.'' A copy of the 
Rules Committee's letter of March 4, 2008, is attached to this 
letter.
    Second, requiring particularized findings of fact before 
any protective order could be issued in any case would impose 
an enormous burden on both the courts and litigants. Only a 
small fraction of civil cases involve issues that implicate the 
public health and safety. Yet, the bill would impose a broad 
rule that would apply to every civil case. Even in cases that 
arguably may bear on public health and safety issues, requiring 
a court to make detailed findings at the beginning of a case, 
possibly on a document-by-document basis, will impose an 
impossible burden on the court and the litigants. Protective 
orders facilitate the timely production of documents and permit 
challenges to particular documents after the parties have had a 
chance to review them and the case has evolved to the point 
when the parties and the court can understand their 
significance and context. The Rules Committee correctly noted 
in its letter to this Committee that the proposed legislation 
``would make discovery more expensive, more burdensome, and 
more time-consuming, and would threaten important privacy 
interests.''
    Third, the requirement that judges entering an order 
approving a sealed settlement agreement must make the same 
particularized findings of fact necessary for discovery 
protective orders is also unnecessary. Only a small number of 
cases involve a sealed settlement agreement and only a portion 
of those cases involve a potential public health or safety 
hazard. In those cases that do, the complaints and other 
documents that are a matter of public record typically contain 
sufficient details about the alleged hazard or harm to apprise 
the public of the risk, the source of the risk, and the harm it 
allegedly causes. Sealing a settlement agreement in these cases 
would have no material impact on the public's ability to be 
informed of potential health or safety hazards.
    The ABA has adopted policy regarding secrecy and coercive 
agreements on this very issue:

          Where information obtained under secrecy agreements 
        (a) indicates risk of hazards to other persons, or (b) 
        reveals evidence relevant to claims based on such 
        hazards, courts should ordinarily permit disclosure of 
        such information, after hearing, to other plaintiffs or 
        to government agencies who agree to be bound by 
        appropriate agreements or court orders to protect the 
        confidentiality of trade secrets and sensitive 
        proprietary information; . . .

    Following adoption of this ABA policy, the Rules Committee 
and the Advisory Committee on Civil Rules of the Judicial 
Conference explored at length the need for changes in Rule 26( 
c) similar to the proposed changes in legislation such as S. 
537. Both committees concluded that these changes are not 
warranted. They are not warranted for one overriding reason: 
the federal courts are already addressing these concerns when 
they consider whether to enter a protective order.
Conclusion
    The current version of Rule 26(c) is and has been an 
appropriate, effective mechanism to protect the rights of both 
litigants and the public, without overburdening the 
administration of justice in the federal courts. Any proposed 
amendment to its provisions should be addressed through the 
existing Rules Enabling Act procedure. S. 537 would not serve 
the public interest.
            Sincerely,
                                  Thomas M. Susman,
                                                  Director,
                                       Governmental Affairs Office.

                                                       May 3, 2011.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Charles Grassley,
Ranking Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Chairman Leahy and Ranking Member Grassley: The 
undersigned members of the Coalition to Protect Privacy, 
Property, Confidentiality, and Efficiency in the Courts 
strongly oppose S. 623, the ``Sunshine in Litigation Act of 
2011.''
    Our collective opposition stems from the fact that the bill 
would severely restrict existing judicial discretion to protect 
the privacy, property, and confidentiality of all litigants by 
requiring federal judges to make premature decisions about the 
masses of information produced in modern civil litigation.
    Ultimately, S. 623 would increase the costs and burdens 
associated with civil litigation while stifling the federal 
court system. Finally, the bill would confer unfair tactical 
advantages on certain litigants at the expense of others.
    Protective and sealing orders are invaluable litigation 
tools. These orders help ensure the confidentiality of valuable 
information produced in discovery. Severe restrictions on their 
availability would have a chilling effect not only on discovery 
and settlements but also on the commencement and defense of 
claims.
    Although S. 623 purports to benefit the public interest and 
protect public health and safety, it is unnecessary and would 
be harmful to litigants' rights and the U.S. judicial system. 
According to studies conducted and analyzed by the U.S. 
Judicial Conference Rules Committee, there is no need to make 
it more difficult to issue discovery protective or sealing 
orders. This is because there is no evidence that protective 
orders create any significant problem of information about 
public hazards being inappropriately concealed or otherwise 
impede the efficient and appropriate sharing of discovery 
information. Current law provides judges with ample discretion 
to issue or deny protective and sealing orders, but does not 
impose upon them the mandatory, time consuming, and burdensome 
oversight role envisioned by S. 623. As a result, efforts to 
enact similar legislation in the past have repeatedly failed.
    The Coalition strongly believes that the ``Sunshine in 
Litigation Act'' would undermine the privacy and property 
rights of all litigants. S. 623 would also have a profoundly 
damaging impact on the United States civil justice system while 
burdening and delaying the just disposition of litigation. 
Accordingly the undersigned organizations urge you to oppose S. 
623.
            Sincerely,
                    Alliance of Automobile Manufacturers,
                    American Tort Reform Association,
                    American Insurance Association,
                    Civil Justice Association of California,
                    Lawyers for Civil Justice,
                    National Association of Manufacturers,
                    PhRMA,
                    U.S. Chamber Institute for Legal Reform,
                    U.S. Chamber of Commerce.

                                  
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