Congressional Record: April 8, 2003 (Senate)
Page S4958-S4974                      

      By Mr. KOHL:
  S. 817. A bill to amend chapter 111 of title 28, United States Code, 
relating to protective orders, sealing of cases, disclosures of 
discovery information in civil actions, and for other purposes; to the 
Committee on the Judiciary.
  Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in 
Litigation Act of 2003, a measure to address the abuse of secrecy 
orders issued by federal courts. All too often, courts sign off on 
secret settlements that shield important public health and safety 
information from the public view from mothers and fathers and children 
whose lives are potentially at stake, and from public officials we have 
asked to protect our health and safety.
  The problem is a simple one and has been recurring for decades. An 
individual brings a cause of action against a manufacturer for an 
injury or fatality resulting from a product defect. The plaintiff, 
often reticent to continue the litigation process because of grief or 
lack of resources, settles the lawsuit quickly. In exchange, the 
defendant insists that the plaintiff agree to the inclusion of a 
confidentiality clause. This mechanism prevents either party from 
disclosing information revealed during the process of litigation. Both 
of the parties to the lawsuit believe that they have ``won'': the 
plaintiff won a satisfactory financial settlement, and the defendant 
won the right to conceal ``smoking gun'' documents.
  But not everybody wins. Future victims of injuries or fatalities 
resulting from the same product defect lose, because they or their 
families must ``re-invent the wheel'' as they litigate virtually the 
same case. Even worse, the American public loses with this outcome, 
because they remain unaware of the critical public health and safety 
information which could prevent harm and save lives.
  Currently, judges have broad discretion in granting protective orders 
when ``good cause'' is shown. But these protective orders are being 
misused. Tobacco companies, automobile manufacturers and pharmaceutical 
companies have settled with victims and used the legal system to hide 
information which, if it became public, could protect the American 
public but endanger their business or reputation. We can all agree that 
the only appropriate use for such orders is to protect trade secrets 
and other truly confidential company information and our legislation 
makes sure it is protected. But protective orders are certainly not 
supposed to be used to hide public safety information from the public, 
especially when such information is neither trade secret nor 
  There are no records kept of the number of confidentiality orders 
accepted by state or federal courts. However, anecdotal evidence 
suggests that court secrecy and confidential settlements are prevalent. 
Let me share some examples that illustrate the dangerous and often 
deadly consequences

[[Page S4964]]

that result from protective orders: Although an internal memo suggests 
that General Motors, ``GM'', was aware of the risk of fire deaths from 
crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 
750 people were killed in fires involving these fuel tanks. When 
victims sued, GM disclosed documents only under protective orders and 
settled these cases only on the condition that these documents remained 
secret. This type of fuel tank was installed for 15 years before being 
  Sixteen month-old Michael Bancroft was buckled into a Kolcraft 
booster-style safety seat in his mother's car when the car was involved 
in an accident. Due to a defect in product design, however, the seat 
did not protect him from a broken neck and paralysis. Kolcraft and the 
Bancrofts settled for $4.25 million and signed a confidentiality 
agreement that concealed the product's defect. Because this information 
remained a secret, countless parents continued to feel a false sense of 
safety when securing their children in Kolcraft safety seats.
  From 1992-2000, tread separation of certain Bridgestone and Firestone 
tires caused a great number of car accidents, many involving serious 
injuries or fatalities. Bridgestone/Firestone quietly settled dozens of 
lawsuits resulting from faulty tire crashes, most of which included 
secrecy agreements. It was only in 1999, when a Houston public 
television broke the story, that the company admitted the defect and 
recalled 6.5 million tires.
  Some States have been proactive in dealing with this problem. 
Florida, for example, has in place a Sunshine in Litigation law that 
severely limits the ability of parties to conceal information that 
effects public health and safety. Michigan has a rule that requires 
that secret settlements be unsealed two years after they are approved. 
And just last year, the judges of the United States District Court for 
the District of South Carolina unanimously agreed not to accept any 
secret settlements at all.
  While these steps indicate movement in the right direction, we still 
have a long way to go. It is time to initiate a federal solution for 
this problem. The Sunshine in Litigation Act is a modest proposal that 
would require Federal judges to perform a simple balancing test to 
ensure that the defendant's interest in secrecy truly outweighs the 
public interest in information related to public health and safety. 
Specifically, prior to making any portion of a case confidential or 
sealed, a judge would have to determine by making a particularized 
finding of fact--that doing so would not restrict the disclosure of 
information relevant to public health and safety. Moreover, all courts, 
both Federal and State, would be prohibited from issuing protective 
orders that prevent disclosure to relevant regulatory agencies.
  And don't just take it from me. During his confirmation hearings 
before the Judiciary Committee in January 2001, Attorney General John 
Ashcroft voiced his support for this legislation, saying, ``I think 
unnecessarily hiding or otherwise concealing from the public those 
[public health and safety hazards] would be against the interests of 
the people . . . I think there's great danger in not providing public 
  This legislation does not prohibit secrecy agreements across the 
board. It does not place an undue burden on judges or our courts. It 
simply states that where the public interest in disclosure outweighs 
legitimate interests in secrecy, courts should not shield important 
health and safety information from the public and from regulators. This 
is an entirely reasonable balancing test. It is time to eliminate the 
dark dangers of court secrecy and bring matters of public health and 
safety into the light, where they belong.