Sunshine in Litigation Act Threatens Dark Day for Business, Justice

By May 9, 2011Briefly Legal

UPDATE (May 12, 11:54 a.m.): The Senate Judiciary Committee did not act on this measure today, postponing consideration for another week.


The Senate Judiciary Committee on Thursday is scheduled to vote on  S.623, the Sunshine in Litigation Act, to force open sealed settlement agreements and documents closed under a judge’s order if the documents have an impact on public safety or health. Long promoted by trial lawyers, the bill would dramatically raise the costs of litigation and give the plaintiffs’ bar another weapon to pressure the businesses into out-of-court settlements.

The National Association of Manufacturers and other members of the  Coalition to Protect Privacy, Property, Confidentiality, and Efficiency in the Courts sent a letter to the Judiciary Committee last week explaining business’ vigorous opposition to the proposal. Excerpt:

[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.

Other members of coalition are the Alliance of Automobile Manufacturers, American Tort Reform Association, American Insurance Association, Civil Justice Association of California, Lawyers for Civil Justice, PhRMA, the U.S. Chamber Institute for Legal Reform and U.S. Chamber of Commerce.

Interestingly, there has been no Senate committee hearing on the legislation. The last hearing we found was in 2007, which included stellar testimony from Robert N. Weiner, a noted products liability attorney. While the trial lawyers like to talk about the public’s right to know, such a right does not exist when it comes to documents exchanged between parties in civil litigation, Weiner reminded the committee: “The Supreme Court in Seattle Times v. Rhinehart, 467 U.S. 20 (1984), made short work of the notion that there is a public right of access to discovery materials. Recognizing the distinction between documents filed in court and materials exchanged between the parties in pretrial discovery, the Court rejected the contention that the First Amendment prohibited entry of a protective order.”

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