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September 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Sunshine Litigation Bill Unnecessary

Legislation introduced this session in Congress would effectively amend the Federal Rules of Civil Procedure with regard to the use of protective orders in discovery and the use of confidentiality provisions in settlement agreements. On behalf of the Judicial Conference in July, Judge Mark R. Kravitz, chair of the Judicial Conference Advisory Committee on Civil Rules, testified in opposition to the bill, the Sunshine in Litigation Act, before the House Judiciary Subcommittee on Commercial and Administrative Law. The Conference opposes H.R. 5884 and its companion bill in the Senate, S. 2449, because they bypass the Rules Enabling Act process established by Congress. Kravitz also noted that the legislation is viewed by the Conference Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules as unnecessary legislation that will burden the courts and have significant adverse consequences for civil litigation.   

The House Judiciary Subcommittee on Commercial and Administrative Law heard testimony on H.R. 5884 from (l to r) attorney Richard D. Meadow, Professor John P. Freeman from the University of South Carolina Law School, Judge Mark R. Kravitz, chair of the Judicial Conference Advisory Committee on Civil Rules, and Judge Joseph F. Anderson, Jr. (D. S.C.)

The House bill, H.R. 5884, would require a judge presiding over a case, who is asked to enter a protective order governing discovery under Rule 26 (c) of the Federal Rules of Civil Procedure, to make findings of fact that the information obtained through discovery is not relevant to the protection of public health or safety or, if it is relevant, that the public interest in disclosure of potential health or safety hazards is outweighed by the public interest in maintaining the confidentiality of the information and that the protective order requested is no broader than necessary to protect the privacy interest asserted.

Kravitz told the subcommittee that the Judicial Conference Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules had extensively studied similar legislation introduced in successive Congresses beginning in 1991. The committees determined not to recommend that the Judicial Conference support the change for three reasons.

“First,” he said, “the bill is unnecessary. Second, it would impose an intolerable burden on the courts. Third, it would have significant adverse consequences on civil litigation, including making litigation more expensive and making it more difficult to protect important privacy interests.”

Kravitz cited a study by the Federal Judicial Center, completed in 1996, that examined 38,170 cases filed in three districts between 1990 and 1992. Discovery protective orders were requested in only about 6 percent of the civil cases in those districts—most by motion, which courts carefully reviewed. Of the 398 cases that had protective order activity, only half involved a protective order restricting disclosure of discovery materials, and of those about 9 percent were personal injury cases.

“The empirical data showed no evidence that protective orders create any significant problem of concealing information about public hazards,” said Kravitz.

Representative Linda Sánchez (D-CA), chair of the House Judiciary Subcommittee on Commercial and Administrative Law, presided over the House hearing.

The Rules Committees also studied examples of cases in which information was kept from the public, but concluded that enough pertinent information could be found in publicly available court documents and in the media to protect public health or safety.

Kravitz testified that courts review motions for protective orders carefully and often deny or modify them to grant only the protection needed, recognizing the importance of public access to court filings.

“[E]ven when a protective order is entered,” Kravitz testified, “it usually does not result in the sealing of all, or even many documents or information submitted to the court. Case law shows that courts are rightly protective of the public’s right to gain access to information and documents submitted to the courts.”

Also, according to Kravitz, it would be difficult if not impossible to require courts to review discovery information, which can total several million pages, before making public health and safety determinations in every request for a protective order.

“If obtaining a protective order required an item-by-item judicial consideration to determine whether the information was relevant to the protection of the public health or safety, as contemplated under the bill, parties would be less likely to seek or rely on such orders and less willing to produce information voluntarily, leading to discovery disputes.

“The Rules Committees consistently have concluded that provisions affecting Rule 26(c), similar to those sought in H.R. 5884, are not warranted and would adversely affect the administration of justice,” Kravitz said.