Sunshine in Litigation Act

A student pointed out the Sunshine in Litigation Act, introduced originally in 2003 and again in 2005 by Senator Kohl (D-WI).  (I think that link will work; if not, it’s S. 1348 in 2005.)  The goal of it appears to be to narrow the scope of protective orders and to reduce the use of confidentiality agreements in settlements.  The key part:

(a)(1) A court shall not enter an order under rule 26(c) of theFederal Rules of Civil Procedure restricting the disclosure ofinformation obtained through discovery, an order approving a settlementagreement that would restrict the disclosure of such information, or anorder restricting access to court records in a civil case unless thecourt has made findings of fact that–

`(A) such order would not restrict the disclosure ofinformation which is relevant to the protection of public health orsafety; or

`(B)(i) the public interest in the disclosure ofpotential health or safety hazards is outweighed by a specific andsubstantial interest in maintaining the confidentiality of theinformation or records in question; and

  `(ii) the requested protective order is no broader than necessary to protect the privacy interest asserted.

Some of the discussion of this that I’ve seen has been in the context of products suits in particular (see this Paxil discussion), suggesting that it will increase the information available to the public.  I’m certain that’s true but I suspect it is less so than some might predict — at least in the fairly significant cases, the bad documents get out relatively early — no later than the first trial.  The secret settlement provisions may make a difference in those cases where it’s a one-off case — i.e., where nobody ever goes to trial — but those are not so much the ones that are getting the attention.