A bill that would curb the ability of courts to impose secrecy orders on public health and safety information was favorably reported by the Senate Judiciary Committee last week. See the report (pdf) on the Sunshine in Litigation Act of 2011, August 2, 2011.
“Court secrecy prevents the public from learning about public health and safety dangers,” the Committee report said. “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.”
Such cases, many of which are cataloged in the report, have included “complications from silicone breast implants, adverse reactions to a prescription pain killer, ‘park to reverse’ problems in pick-up trucks, and defective heart valves.”
“This problem most often arises in product liability cases,” the report said. “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.” As a result, “the public remains unaware of critical health and safety information that could potentially save lives.”
To address the problem, the bill would require judges to consider the public’s interest in disclosure health and safety information before issuing a protective order prohibiting its disclosure.
The bill, which has been introduced repeatedly without success since 1994, was opposed by most Committee Republicans. (Senators Grassley and Graham supported it.)
In a minority statement appended to the report, the Republican Senators said the bill was unnecessary and would be counterproductive.
“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,” the dissenting Senators wrote.
“This bill would simply provide a tool to trial lawyers to conduct fishing expeditions and file frivolous lawsuits with impunity,” they said.
The bill was also opposed by the American Bar Association, who said the proposal was unwarranted and burdensome.