SUNSHINE IN LITIGATION ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 1508
__________
JUNE 4, 2009
__________
Serial No. 111-40
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Commercial and Administrative Law
STEVE COHEN, Tennessee, Chairman
WILLIAM D. DELAHUNT, Massachusetts TRENT FRANKS, Arizona
MELVIN L. WATT, North Carolina JIM JORDAN, Ohio
BRAD SHERMAN, California DARRELL E. ISSA, California
DANIEL MAFFEI, New York J. RANDY FORBES, Virginia
ZOE LOFGREN, California HOWARD COBLE, North Carolina
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia
ROBERT C. ``BOBBY'' SCOTT, Virginia
JOHN CONYERS, Jr., Michigan
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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JUNE 4, 2009
Page
THE BILL
H.R. 1508, the ``Sunshine in Litigation Act of 2009''............ 3
OPENING STATEMENTS
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Chairman, Subcommittee on Commercial
and Administrative Law......................................... 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on
Commercial and Administrative Law.............................. 8
WITNESSES
Ms. Leslie A. Bailey, Public Justice
Oral Testimony................................................. 20
Prepared Statement............................................. 23
Mr. Bruce R. Kaster, Kaster & Lynch, P.A.
Oral Testimony................................................. 38
Prepared Statement............................................. 40
The Honorable Mark R. Kravitz, United States District Court for
the District of Connecticut, on behalf of the Committee on
Rules of Practice and Procedure and the Advisory Committee on
Civil Rules of the Judicial Conference of the United States
Oral Testimony................................................. 52
Prepared Statement............................................. 54
Mr. Sherman l. Cohn, Georgetown University Law Center
Oral Testimony................................................. 114
Prepared Statement............................................. 116
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Letters submitted by the Honorable Trent Franks.................. 9
APPENDIX
Material Submitted for the Hearing Record
Response to Post-Hearing Questions from Leslie A. Bailey, Public
Justice........................................................ 128
Response to Post-Hearing Questions from Bruce R. Kaster, Kaster &
Lynch, P.A..................................................... 137
Response to Post-Hearing Questions from the Honorable Mark R.
Kravitz, United States District Court for the District of
Connecticut.................................................... 143
Letters from the Committee on Rules of Practice and Procedure of
the Judicial Conference of the United States submitted by the
Honorable Steve Cohen.......................................... 155
Letter of support for the bill, H.R. 1508, submitted by the
Honorable Steve Cohen.......................................... 175
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Enclosures to Bruce R. Kaster's responses to the Questions for the
Record from the Honorable Steve Cohen have been retained in the
official Committee hearing record.
Enclosures to Bruce R. Kaster's responses to the Questions for the
Record from the Honorable Trent Franks have been retained in the
official Committee hearing record.
Letter from Bruce R. Kaster to the Honorable Mark R. Kravitz has been
retained in the official Committee hearing record.
Enclosure to the testimony of the Honorable Mark R. Kravitz, ``Sealed
Settlement Agreements in Federal District Court,'' has been
retained in the official Committee hearing record.
Enclosures to the Honorable Mark R. Kravitz's responses to the
Questions for the Record from the Honorable Steve Cohen have been
retained in the official Committee hearing record.
Letters from Cooper Tire and Rubber Company to the Honorable Steve
Cohen have been retained in the official Committee hearing record.
SUNSHINE IN LITIGATION ACT OF 2009
----------
THURSDAY, JUNE 4, 2009
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:05 a.m., in
room 2237, Rayburn House Office Building, the Honorable Steve
Cohen (Chairman of the Subcommittee) presiding.
Present: Representatives Cohen, Conyers, Maffei, Franks,
Jordan, and Coble.
Staff present: (Majority) Matthew Wiener, Counsel; Adam
Russell, Professional Staff; and (Minority) Blaine Merritt,
Counsel.
Mr. Cohen. Thank you for your indulgence. We will have to
break in a few minutes for votes. But this hearing of the
Committee of the Judiciary Subcommittee on Commercial and
Administrative Law will now come to order.
Without objection, the Chair will be authorized to declare
a recess of the hearing and will do so in a few minutes. I will
now recognize myself for a short statement.
Serious concerns have been raised that too many
confidentiality orders have been entered in Federal civil cases
and they have concealed from the public information about
dangerous or harmful products, environmental conditions and
business practices that the public has a desire or duty to--a
need to know.
H.R. 1508, the ``Sunshine in Litigation Act of 2009''
responds to these concerns eliminating the circumstances under
which a Federal court may restrict disclosure of information
uncovered during discovery, during trial or other court
proceedings which is relevant ``to the protection of public
health or safety.''
This hearing will give the Subcommittee an opportunity to
consider this bill. Legislation introduced by Representative
Wexler has key provisions that require Federal judges to do, as
some of them already do which is consider the public interest
before entering a confidentiality order that would conceal
information ``relevant to protection of public health and
safety'' uncovered during civil litigation.
H.R. 1508 would not prohibit a court from entering a
confidentiality order when confidentiality is due. It would
simply require a court before entering such an order to find
that the asserted interest and confidentiality outweighs the
public's interest in disclosure and that order is no broader
than necessary to protect that interest's balancing acts.
H.R. 1508 raises two principle questions. First is whether
if confidentiality orders entered in Federal civil cases too
often conceal from the public important information about
dangerous products, environmental conditions and business
practices.
And second, whether we should leave this issue of courtroom
secrecy in the hands of the Judicial conference and we hope
that they can help us with this or whether as Chief Judge Abner
Mikva said in his testimony before the Judiciary Committee some
time ago in the Senate, that the issue is a basic policy issue
too important to leave to the unelected rule changers.
So with that spoken and not being the words of the House, I
look forward to receiving today's testimony.
And I now recognize my distinguished colleague from
Arizona, Mr. Franks, Ranking Member of the Subcommittee, for
his opening remarks.
[The bill, H.R. 1508, follows:]
Mr. Franks. Well, thank you, Mr. Chairman. Thank you, Mr.
Chairman.
And thank all of you for being here.
Mr. Chairman, I first want to thank the witnesses for their
testimony today regarding H.R. 1508, the Sunshine in Litigation
Act. Under Rule 26(c) of the Federal Rules of Civil Procedure,
during discovery, a trial judge may exercise great discretion
in issuing an order of which ``justice requires to protect a
party or person from annoyance, embarrassment, oppression or
undue burden or expense.''
The judge may order that no disclosure or discovery may be
had in certain areas or only on certain terms and conditions.
The judge may also deny a protective order altogether.
H.R. 1508 is the latest legislative proposal to change Rule
26(c). In general, the bill greatly limits the discretion that
a judge may exercise in granting a protective order by forcing
the court to determine whether each piece of discoverable
information is relevant to the protection of public health or
safety.
As a practical matter, Mr. Chairman, H.R. 1508 essentially
compels each trial court to become a documents clearinghouse
that will undoubtedly compromise the property and privacy
interests of litigants.
This legislation is opposed not only by the business
community but by the Federal Judiciary and the American Bar
Association as well. Now, while we get to hear from Department
of Justice this year, the Bush Administration's Department of
Justice also opposed the bill.
Mr. Chairman, at this time I would ask unanimous consent
that opposition letters from the American Bar Association,
Professor Arthur Miller of the New York University School of
Law, and the Coalition to Protect Privacy, Property,
Confidentiality and Efficiency in the Courts be entered into
the record.
Mr. Cohen. Without objection, that will be done.
[The information referred to follows:]
__________
Mr. Franks. Thank you, Mr. Chairman. Mr. Chairman, these
groups oppose this bill, first, because it circumvents the
regular order for promulgating changes to the Federal rules of
civil procedures prescribed by the Rules Enabling Act.
The Rules Enabling Act has worked well through the years
because it is premised on the logical presumption that the
courts are the institutional experts when it comes to
understanding how rules of procedure are best developed and
implemented.
I currently see no reason to abandon that process for the
dramatic changes contemplated by H.R. 1508. This bill would
also increase the burden in costs of litigation.
If confidentiality and privacy are not protected, litigants
will be forced to oppose any document request that an opposing
party makes for information which may be sensitive or
confidential. It also forces judges to make findings of fact
every time a protective order is requested.
As Judge Kravitz wrote in his testimony from a previous
hearing, ``Requiring courts to review discovery information to
make public health and safety determinations in every request
for a protective order no matter how irrelevant to the public
health or safety, will burden judges and further delay pre-
trial discovery.'' Well spoken.
Mr. Chairman, I believe that this is a bad bill, and that
there exists no empirical evidence demonstrating its necessity.
It compromises the legitimate property and privacy interests of
plaintiffs and defendants in our Federal court system while
generating unnecessary expense and delay.
And, again, I want to thank the witnesses for their
participation today.
And I thank the Chairman. And yield back the balance of my
time.
Mr. Cohen. Thank you, Mr. Franks.
I am now pleased to introduce the first witness, and we
will hear testimony from all the witnesses. But I introduce
witnesses before--as they speak. I want to thank each person
for participating.
And without objection, your written statement will be
placed in the record. And we would ask you to limit your
remarks to 5 minutes. We have a lighting system; when it is
green, you are on and you have got 4 minutes, more or less, to
proceed. And yellow, you are in your last minute. And red, your
time is finished, and you should quickly terminate your
remarks.
After each witness has presented his or her testimony, the
Subcommittee Members will be allowed to ask questions. But we
wait until all of the witnesses have done that then and go
forth.
Our first witness is Ms. Leslie Bailey. Ms. Bailey is a
staff attorney at Public Justice, a national public interest
law firm based here in Washington. Her practice focuses
primarily on consumer rights and civil rights.
She has been counsel in several successful challenges to
abusive class action bans and Federal preemption defenses
before state supreme courts and Federal courts of appeal as
well as two successful challenges to abusive secrecy orders:
Jesse v. Farmer's Insurance Exchange in the Colorado Supreme
Court, and Davis v. Honda in California Superior Court.
Thank you, Ms. Bailey, and we now take your 5-minute
testimony.
TESTIMONY OF LESLIE A. BAILEY, PUBLIC JUSTICE
Ms. Bailey. Mr. Chairman.
Members of the Subcommittee, thank you very much for
inviting me to testify today on the problem of court secrecy.
Public Justice is a national public interest law firm based
here in Washington. We are not a lobbying group but we do have
a special project dedicated to fighting unwarranted secrecy in
the courts. And, in particular, we intervene in cases on behalf
of members of the public and the press to object to overbroad
secrecy orders.
It is undisputed that much of the civil litigation in
today's court is taking place in secret. The public courts are
being used to keep smoking gun evidence of wrongdoing from the
public eye.
Court secrecy is at least as common today as it was in the
1990's when the Firestone Tire scandal came to life. A recent
Seattle Times series uncovered more than 400 cases in a single
court that have been wrongly sealed, many involving cases of
public safety.
Just a couple of years ago, we learned that Allstate
Insurance Company had implemented a program where it was
intentionally underpaying its policyholders on legitimate
claims in order to increase shareholder profits.
It worked. The program resulted in record operating income
during a time marked by some of the worst natural disasters in
recent history, including Hurricane Katrina.
The documents about this program were produced in
litigation but were kept secret from the public pursuant to a
protective order. And it wasn't until a lawyer who had seen
them published his notes that the contents of the documents
became known.
The reason this happens, this reason the system is not
working is that each party is pursuing her own narrow interests
and no one in the process, in most cases, is looking out for
the interests of the public.
Defendants want secrecy for the most part because
information about hazardous products and fraudulent business
practices is bad P.R. and, in the short term, could lead to
more lawsuits. Plus, it is cheaper to pay off individual
victims, as long as you can keep evidence secret, than it would
be to fix the product or change the practice.
And plaintiffs, for their part, may well go into a case
with the goal of making sure that what happened to them doesn't
happen to anyone else. But then they are offered a settlement
that can pay their medical bills or rebuild their homes if only
they will agree to keep it quiet.
Judges are overburdened, and as long as the parties agree,
it is easy for a judge to sign off on secrecy in a lot of cases
without considering the public interest. Meanwhile, we continue
to drive unsafe cars, drink unsafe water, take dangerous drugs
and put our money and our trust into institutions that are
defrauding and deceiving us.
That is the first and most obvious effect of secrecy. But
there are other costs. Secrecy makes discovering the truth much
more difficult and more costly.
If a defendant can keep its wrongdoing secret, it won't
have to pay as much to the next person who is injured. As long
as it is cheaper to pay damages, there is no incentive to make
the product safer. And cases that would easily be resolved if
the truth came out, take years.
Public Justice has fought several secrecy orders in recent
years. And in some cases, though certainly not all, we have
succeeded in making documents public that never should have
been concealed in the first place.
I want to briefly mention one case that I worked on. This
was a case brought against Honda by Sarah Davis, a 17-year-old
girl who was paralyzed in a crash.
During trial, Honda's expert witness went to examine the
evidence. This witness was observed intentionally wiping away
marks on the seatbelt that would have proved that Sarah Davis
was wearing her seatbelt during the crash.
When the trial judge found out he issued a scathing 36-page
sanctions decision, detailing his findings, and he awarded
liability against Honda. A few days later, the parties reached
a settlement. And as a condition of that settlement, the judge
was asked to sign off on an order vacating and sealing his
sanctions decision.
Once that court record was sealed, this same expert witness
was used all over the country by other car companies sued by
other people who had been hurt in car crashes, and no one was
allowed to ask him about what he had done.
We challenged that sealing order, and we got it reversed.
But for every success story, there are hundreds of equally
harmful secrecy orders that remain in force. It shouldn't take
intervention by a public interest group to make sure
unnecessary secrecy is avoided.
Hundreds of thousands of cases are handled by the courts
each year and it is not possible for a small number of non-
profits with a handful of lawyers to intervene in more than a
tiny fraction of those cases, especially since challenges to
secrecy orders offer no possibility of recovering attorneys'
fees.
We need another solution. Convenience is not a good enough
reason for concealing information from the public. If Federal
judges were required by law to weigh the public interest before
entering a secrecy order, facts would come out, people's lives
would be saved and the courts would be fulfilling their proper
role as open, public government institutions.
I want to thank the Subcommittee for focusing on this very
important issue today.
[The prepared statement of Ms. Bailey follows:]
Prepared Statement of Leslie A. Bailey
__________
Mr. Cohen. Thank you, Ms. Bailey. I appreciate your
testimony. And you already told some of the smoking gun
secrecy. The tobacco lobby and the NRA gotten together?
Our second witness is Bruce Kaster. Since graduation from
the University of Florida College of Law in 1975, Mr. Kaster
has practiced in Ocala, Florida, as a civil trial lawyer.
His practice is limited to cases involving defective
products in state and Federal courts across the country,
focused primarily on tire failure related cases. He has pursued
personal injury litigation against major domestic and foreign
corporations on behalf of clients injured or killed by
defective products including cases against Firestone, Michelin,
Uniroyal, Goodyear and others.
Mr. Kaster is nationally recognized for his expertise in
tire-related vehicular accidents. He has been featured and
quoted in the New York Times, the Wall Street Journal and
numerous other papers and magazines across the country and
across the seas.
His extensive experience and knowledge as a result of
products liability litigation in state and Federal courts
across the country gives him a unique perspective on the impact
of secrecy in legal proceedings.
Mr. Kaster, we appreciate your coming to testify before us.
And would you please begin your testimony?
TESTIMONY OF BRUCE R. KASTER, KASTER & LYNCH, P.A.
Mr. Kaster. Thank you, Mr. Chairman, and Members of the
Committee for this opportunity to speak on this very important
legislation that I think is critical to protect the public.
Having spent over 20 years in my career handling products
liability cases, I have had the opportunity to see the human
cost of secrecy in the courtroom. Literally, tens of thousands
of Americans, if not hundreds of thousands, are killed or
injured as a result of products that the manufacturer knows are
defective but the public doesn't.
I have struggled against secrecy in legal proceedings for
over 20 years in state and Federal courts across this country
and for the most time, unsuccessfully. In our present legal
system the way it works, in practicality, is every time I
request a document the manufacturer gets a protective order.
I object and have never, ever had it denied. And then they
place the documents under protection. Once they are placed
under protection, I come back and ask that document protection
be removed.
I have never prevailed. And that is over 20 years of these
cases in Federal courts across the United States.
I appreciate Mr. Franks' comments on the burden on the
courts and Judge Kravitz has made the same point. And I think
it is a good point.
But you have got to weigh the burden on the court for the
lives of American citizens, and their only protection is from
the Congress to overcome secrecy that has resulted in so many
unnecessary deaths and injuries.
I would say that one good example to help us understand how
this system is abused are some documents that I have brought
with me and they are in your packet. If you look at the
document on the left, the Firestone Wilderness tires, the
reason I brought that is to put the next document into context.
We all are familiar with the Firestone recall and the fact
that so many people were killed and injured as a result of the
defective tires; biggest recall in the history of this country
for tires.
One of the major reasons that those tires failed was that
they reduced the size of the wedge, and you will see it circled
on the diagram. They did that as a cost-cutting measure; they
cut it in half. Tread separations skyrocketed. People started
dying.
The document to the right is a redacted document that
normally you wouldn't be able to see. But we tried a case in
Mississippi and this document came into evidence. It came into
evidence in the courtroom.
Now, the document was protected. You will see a
confidentiality stamp on the lower left-hand corner. I had
opposed protection of this document before I even saw it
because I knew what it was.
I came back to the Federal judge and asked the Federal
judge, ``Remove protection. This is not a trade secret
document. It is dirty laundry.'' My motion was denied.
The judge did rule that the defendant, Cooper Tire Company,
could seal the courtroom. I thought that was unprecedented.
Fortunately, they failed to do it. This document came into
evidence in that redacted form.
And what it tells us is that this manufacturer not only has
a reduced wedge, it is worse than that. They don't have any.
They don't even have the product that Firestone reduced that
resulted in all these deaths.
The public doesn't know this, and they wouldn't even know
this document except for what I would say is a fluke. This is a
type of document that is routinely protected, and I cannot get
out from under protection that tells you the company did not
put in this safety measure for cost considerations.
Now, if the public knew that, they wouldn't want to buy
these tires. They wouldn't want their family riding in a
vehicle that has tires that don't have a basic safety
component. But the public doesn't know. And there are literally
thousands of these documents that I can't show you from every
tire manufacturer that show what is wrong with their tires.
Now, I concentrate on tires because that is mostly what I
do. But I have seen the same type of documents from motor
vehicle companies in litigation I have been involved in,
lawnmower cases, you name the product. In every case I have
ever been involved in, the manufacturer put every document they
produced under protection even documents from other entities.
And I have never been able to overcome that. Judge Kravitz'
position, and I respect it, is come back to the judge and show
the judge. I have done that. It doesn't work.
In the real world, manufacturers use protective orders to
hide the truth about the defects in their products, and it is
unwarranted and unnecessary.
I would say, finally, that in my experience, protective
orders kill people. You have got to weigh the value of that
against the burden on the courts. If we remove protection from
documents that shouldn't be protected in the first place, the
public is aware of which products are defective and which are
not. They can make an informed decision. Right now they cannot
do that.
I respectfully request that this legislation go forward as
drafted. I have some experience in Florida with somewhat
similar legislation that is not, quite frankly, as good as
this, but it is a step in the right direction.
This is clearly an improvement and necessary. And I thank
you.
[The prepared statement of Mr. Kaster follows:]
Prepared Statement of Bruce R. Kaster
ATTACHMENT 1
ATTACHMENT 2
0_________
Mr. Cohen. Thank you, Mr. Kaster.
Our next witness will be Mark R. Kravitz. Judge Kravitz was
appointed in 2003 by President George W. Bush, U.S. District
Court in the District of Connecticut.
Previously, he was a partner at the law firm of Wiggin and
Dana where he worked for nearly 27 years, most recently as
chair of the firm's Appellate Practice Group. Before joining
Wiggin and Dana, Judge Kravitz served as law clerk to Circuit
Judge James Hunter, III of the U.S. Court of Appeals for the
Third Circuit, and then to Justice William Rehnquist of the
United States Supreme Court.
From 2001 to 2007, he served as a member of the Standing
committee on the Rules of Practice and Procedure in the United
States Courts, the body that oversees the rules of procedure in
evidence that apply in all Federal courts. During that period,
he also served as the liaison member of the Advisory committee
on Criminal Rules.
June 2007, Chief Justice John Roberts, Jr. appointed Judge
Kravitz to chair the Advisory committee on Civil Rules, the
body that oversees the Federal rules of civil procedure.
Thank you, Judge Kravitz. You may proceed.
TESTIMONY OF THE HONORABLE MARK R. KRAVITZ, UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, ON BEHALF OF
THE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE AND THE
ADVISORY COMMITTEE ON CIVIL RULES OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES
Judge Kravitz. Thank you, Mr. Chairman. And I appear today
on behalf of both the Judicial Conferences committee on Rules
of Practice and Procedure and the Advisory committee on Civil
Rules, which I chair.
I should say at the outset, no one is opposed to the
concept that information that is injurious to the public health
and safety should get in the hands of people who can fix that.
That is not the issue here.
This bill, therefore, has a good goal but its means are
seriously flawed. And those means are likely to hurt rather
than help.
The Rules committee have studied this for years and we
oppose it for really three different reasons. And I have to ask
this Committee, and I would ask the witnesses themselves to
distinguish here between what we are talking about.
We have heard evidence of the Honda case. We have heard
evidence of Seattle Times and 400 cases. Those are state court
cases. What I want to hear is evidence of Federal courts
abusing the process and not doing what the rule says it should
do, which is only grant protective orders for good cause shown.
And there is a huge body of case law.
We have not seen any empirical evidence of that and the
Rules committees rely on empirical evidence. But if this
Committee has evidence of Federal judges abusing the process
repeatedly, I want to know about that, and we will do something
about it.
Secondly, the burdens, again, I am not worried about me
being burdened. Frankly, I have lots of things to do. But to
the extent to which I spend my time looking document through
document of truckloads of documents or electronic discovery,
then other deserving litigants and critical issues are not
going to get my attention. And, frankly, Mr. Kaster, whom I
want to get those documents as quickly as possible is not going
to get them in any time soon.
So I would ask this Committee also to distinguish between
two things. First, documents that come into evidence at trial
or are filed with the court. Frankly, the courts have more
severe rules than this legislation as Ms. Bailey points out
that require those documents not to be sealed absent
extraordinary circumstances.
So the law that exists there is actually more stringent
than this legislation and it covers all cases not cases dealing
with public health and safety. So what we are dealing with
really is the exchange of information in discovery.
And I want to get that information to Mr. Kaster and his
experts as quickly as possible so that they will tell me if the
public health and safety is implicated because I am not going
to be able to know that myself. The notion that there are
smoking guns out there in roomful of documents and me not
knowing anything about the case will stumble upon the smoking
gun, I think, is naive to say the least.
So courts have a well-developed body of case law that
allows parties to come in and get modifications to the
document. I cited the Zyprexa case. That is the case where
Judge Jack Weinstein of the Eastern District of New York had a
protective order, allowed information to get to the plaintiffs
and their experts, under the protective order.
And then a couple of years later after he knew more about
the case and there had been motions, he then unsealed all that
material that he had previously sealed and got it to the right
people. And he did it under the existing law. And it happens
all the time.
So I think the burdens here--this is just going to slow
down Mr. Kaster getting any information. It is going to
increase the cost of litigation at a time when the lawyers and
the public are concerned about the cost of litigation.
And I don't think it is going to achieve the goal. And the
reason I don't think it is going to achieve the goal is he is
going to agree to a private agreement, not a protective order
but a private agreement, that will have the same terms in it so
he can get the information sooner.
And so the legislation at the end will not achieve what it
is designed to achieve, which is a laudatory goal that we all
support.
Thank you, Mr. Chairman.
[The prepared statement of Judge Kravitz follows:]
Prepared Statement of the Honorable Mark R. Kravitz
ATTACHMENT 1
ATTACHMENT 2
__________
Mr. Cohen. Thank you, Judge Kravitz.
Our final witness is Sherman Cohn, without an ``e,''
professor at the Georgetown Law Center since 1965. Professor
Cohn specialized in the fields of civil procedure, professional
responsibility and legal issues of a complimentary alternative
and integrative medicine, of which he also lectures at
Georgetown Medical Center.
Before joining the Law Center faculty, he served as a clerk
for Judge Charles Fahy of the D.C. Circuit and in the Appellate
section of the Civil Division of the Department of Justice. He
serves as the Administrator of Preview of U.S. Supreme Court
cases from 1976 to 1979 as director of Continuing Legal
Education of the Law Center from 1977 to 1984.
Thank you, Professor Cohn. Will you proceed with your
testimony? And turn on your microphone?
TESTIMONY OF SHERMAN L. COHN,
GEORGETOWN UNIVERSITY LAW CENTER
Mr. Cohn. Thank you, Mr. Chairman. Thank you for the
invitation and the opportunity.
I came here with the idea that I would disagree with Judge
Kravitz from his earlier testimony as I understood it. What he
is talking about today I agree with, that this from the
standpoint of discovery matters that are not brought to the
judge's attention that a judge should not have to go through
the thousands and sometimes hundreds of thousands of pages in
discovery.
That is what plaintiff's counsel should be there to bring
to the judge's attention. And it is up to plaintiff's counsel,
as Mr. Kaster pointed out, to bring that to the attention of
the judge.
I am just looking at it once it is at the judge's
attention. I am also looking at it from the standpoint of the
end of the case. When there is a settlement entered and a
settlement that is conditioned upon secrecy and they ask for
the Federal judge to put his imprimatur, the power of the
Federal court behind that secrecy agreement.
In that situation, it is the defendant who has interest to
keep the matter a secret for reasons that this Committee and
the Senate Committee have often heard. The defense counsel
wants to keep his client. The plaintiff has a pot of gold that
would not be as high or possibly would not be as high, that is
what the plaintiff is told.
And plaintiff's counsel gets a contingency fee based on the
size of the pot of gold. Now, it may be that plaintiff's
counsel is like Mr. Kaster and will let that go and be
interested in the public interest. That has not been what I
have seen on the occasions that I have seen it.
That quite often plaintiff's counsel is torn between the
plaintiff's counsel interest in his or her own welfare and the
greater welfare of society. In law school, we try to say that
while you have a loyalty to your client and, yes, you have to
stay in business; you got to pay your rent, things like that.
But you also have a loyalty to society.
Where that doesn't occur and where the judge knows that
there are issues of safety and health involved, then to then
enter into a secrecy agreement which the judge signed so that
behind it is the power of a sovereign United States, I think is
wrong.
Now, I want to address for just a moment the question of
where this belongs. My view is that this issue belongs here in
Congress. This is a question of social value. And it is not
just a question of procedure.
I would like to suggest that this comes very close to or
into the category of effecting substantive law. And under the
Rules Enabling Act, the Rules committee, no matter how wise
they are, do not have power in substantive law.
That belongs to Congress so that the issue however it is
resolved and here I join Abner Mikva in his views, that this is
an issue of balancing of social values. And balancing of social
values is a legislative matter and Congress should however you
come out, is the place where this ought to be resolved.
Thank you very much for listening and I hope this is
helpful to your consideration.
[The prepared statement of Mr. Cohn follows:]
Prepared Statement of Sherman L. Cohn
__________
Mr. Cohen. Thank you so much. Now that we have completed
our testimony, and I appreciate each of the witnesses, we will
pause for questions.
And I will first recognize Mr. Maffei and he will, if he
would, and take the chair for a second. If Mr. Maffei would----
Mr. Maffei. We will take it here.
Mr. Cohen. Why don't you take it here? And he will take the
chair, and he will have the first questions. So I yield----
Mr. Maffei. Thank you, Chairman Cohen. As a new Member of
the Congress, I am actually very honored to even be the chair
pro tem of a Committee.
First question I do want to ask Ms. Bailey. Judge Kravitz
notes in his prepared statement that the empirical data on
which the Judicial Conference relies in opposing H.R. 1508
showed no evidence that protective orders create any
significant problems of concealing information about public
hazards. What is your response to that?
Ms. Bailey. Well, my understanding of that data is that it
was being accumulated during the same period of time in which
people were dying from defective Firestone Tires. So I don't
think that it is possible to account for all of the cases of
secrecy, it is part of the nature of secrecy, that a
statistical analysis is not going to come up with every case in
which someone may have been injured due to secret documents.
I think you actually need to look at real people and real
cases.
Mr. Maffei. During his oral testimony, Judge Kravitz talked
about how a lot of these things are going on in state courts,
and I couldn't help but notice both you and Mr. Kaster
scribbling. So I do want your response to that.
Is this really a problem more in the state courts than
Federal courts?
Ms. Bailey. Not to my knowledge. No. I like to talk about
the Davis case because I worked on it, but in my written
materials you will find examples of cases in Federal court
where documents were improperly sealed or settlements were
improperly sealed, including the Allstate case that I
mentioned, which was in Federal District Court in Louisiana.
Mr. Maffei. Mr. Kaster, same question to you.
Mr. Kaster. Well, the case that I have used as an example
today is just one of scores that I have been involved in in
Federal court. I limited my comments today primarily to Federal
court proceedings.
For example in Mississippi where I followed exactly what
Judge Kravitz suggested, let me say that I hold him in great
esteem. If I had Judge Kravitz all the time, I wouldn't have
this problem.
But I don't have the same experiences as his empirical data
tells you. I am in the real world. And in Federal courts,
matter of fact you routinely get oppressive protective orders,
and when I go back and challenge them with documents like this,
they clearly shouldn't be protected. I have never won in 20
years. So that is part of the real world that I live in.
Mr. Maffei. Do you think the problem is that there is just
no judicial scrutiny at all? How does----
Mr. Kaster. There is some----
Mr. Maffei. Describe how a judge approaches one of your
motions.
Mr. Kaster. There is no judicial scrutiny. I have even
asked judges to just look at sections of the documents. As a
matter of fact as we sit here, in the Federal court in Georgia
today, I believe, the court is entertaining the very question
that we are here about.
I have gone back and pulled out just a sample of documents
that I have asked the court to look at because they clearly are
not trade secret or should be protected. That ruling may happen
while I am sitting here today, which would be very ironic. If I
were to win, it would be the first time in 20 years.
What happens is the Federal judges or the Federal
magistrates do not look at the documents; they enter a
protective order. I look at them; I come back and challenge the
documents that should not be protected that would protect the
public interest and I never win.
Mr. Maffei. But what is going on in their mind? Why would
they never rule? I mean, obviously judges have all sorts of
different backgrounds and stuff. But----
Mr. Kaster. As I understand it, the view is this. You
represent one client and you have what you need for that
client. You do not represent the public at large, counselor.
And I have actually had judges say that to me.
I have a different view. This is actually against my own
interest. If all of these documents become public, I happen to
have a unique body of knowledge, and I know about documents
that everybody else doesn't. One reason people hire me is that
I have this unique knowledge.
If all of the knowledge were out there and any lawyer could
get it, then that would diminish my practice. So it is against
my interest to do this, but when I went to law school I was
taught, you have a public interest as well.
And as I have put in my written statement, every client
that I approach on this whose lost a child or family members or
terribly injured, they allow me to pursue the public interest
because they don't want the same thing to happen to someone
else.
And I pursue the public interest with the permission of my
client. If I didn't have that, I would be caught in the trap of
not being able to push those documents to become public because
my client has what they need.
And if I were selfish and decided to go that route, then
Congress has to mandate to the courts, you have got to take on
that burden if a lawyer won't do it.
Mr. Maffei. Do you agree with Professor Cohn's comments on
the interest of various----
Mr. Kaster. We all agree that settlements should not hide
the truth. That is, I think everyone here agrees to that. But
that is not the problem. I have never had that as a problem.
Mr. Maffei. Thank you Mr. Kaster.
Judge Kravitz, I assume you have a different take on how a
judge looks at a motion to open up these documents.
Judge Kravitz. Yes, I think this discussion has been
interesting for a couple of different levels. I mean, if in
fact Ms. Bailey and Mr. Kaster have all these decisions of
judges routinely rejecting their motions to open up documents,
then they have to exist. And, in fact, Mr. Kaster said he is
going to send me the Bradley decision, and I can take a look at
it.
But there are lots of decisions of judges opening up cases.
And the key point that I think Mr. Kaster made, what you need
to keep in mind is this, he got the document, and then he came
back to the Federal court, and he could explain to the judge as
was true in the Zyprexa case.
But that is not what this legislation says. This
legislation says before he even gets those documents, I have to
do a document by document review without his assistance to try
to figure out whether those documents are ``relevant to public
health and safety.''
The truth is I am not going to be able to do that. I think
as Professor Cohn said, we need to get the documents to Mr.
Kaster, and then he needs to come back either under existing
law or some changes in the rules that we would certainly be
willing to entertain, to get the protective order lifted with
respect to that.
But it can't be at the front end. That is the problem.
Mr. Maffei. Thank you, Judge Kravitz.
I now recognize the Ranking Member of the Subcommittee, Mr.
Franks, for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman, I
am observing some unprecedented common sense and dialogue
between the witnesses here and it scares me to death. But it
makes me think that perhaps there might be some middle ground
here that perhaps, you know----
Mr. Maffei. Don't worry, that is the judicial branch. We
would never fall into any of that.
Mr. Franks. You know, confidence like that is something one
gets before they fully understand the situation, I suppose. But
is it possible that the Rules committee or the entire Judicial
Conference could craft a more narrow bill? That is the one
suggestion that I would put forward.
But let me ask you, Judge Kravitz, I kind of had a little
epiphany in your last comment. You are saying, just for clarity
here----
Judge Kravitz. Right.
Mr. Franks [continuing]. That in Mr. Kaster's case, even
though the judge ruled against making some of the documents
public, and you never know whether that was justified or not,
that indeed, he got the documents that he asked for----
Judge Kravitz. Absolutely.
Mr. Franks [continuing]. And that the difference that this
bill would make is that before he ever got the documents he
would have to go over them with a fine-toothed comb, as it
were, before he ever got them.
Judge Kravitz. By myself. Without his assistance.
Mr. Franks. See, I find that a stunning crux of the
discussion here. And again, maybe I am misunderstanding, but it
sounds like Mr. Kaster's comments here, I mean, he has been
very forthright, and you have said that yourself. And maybe he
has had some narrow-minded judges that he has dealt with.
But isn't it true then, based on that, that if those same
judges were forced to go through all of that data before Mr.
Kaster had ever gotten it, that they would probably come to the
same conclusion that it was, you know, if they--in other words,
if I am a judge, and I am looking at this data, and I am going
to try to move through it as quickly as possible.
I am going to be much more deferential to a lawyer that
comes in and says, ``Judge, there is a problem here. This is a
safety issue for the public. Please look at this.'' I am going
to look at that much more carefully.
Judge Kravitz. Here is the thing, practically. In Mr.
Kaster's example, it is the defendants who have the document.
They are going to give them to me to look at presumably in
camera so I can figure out whether they impact public health or
safety.
Mr. Kaster doesn't even have the documents. His experts
don't have the documents. And I am going to make up my mind.
And who is the person who is going to be telling me whether the
documents are a bear on public health and safety? It is the
defendant, in his example.
So what we need to do is get the documents in his hands as
rapidly as possible, get his expertise and then have him come
back to the judge, if that is what he wants. And that is
exactly what happened with Jack Weinstein in the Zyprexa
litigation.
And I really urge the Committee to take a look at that
decision, because Judge Weinstein in that case, after having
gotten--had a protective order and gotten the information out
says, public access is now advisable.
Now that he can figure out that--because the litigation
involves issues of great public interest, the health of
hundreds of thousands of people, fundamental questions about
our system or approval and monitoring of pharmaceutical
products and the funding of many health and insurance plans.
Public and private agencies have a right to be informed.
And that information got out there. And that is under the
existing rules. So I don't think we need necessarily any new
rules.
But let me just say to Professor Cohn's point. There are
things in this bill that are substantive, like the provision
that a court can't approve an agreement that prevents people
from going to a Federal agency with documents that bear on
public health and safety.
But the provisions of this that deal with protective orders
and the time at which judges agree to protective order, that is
a procedural question and the factors that a court is going to
consider. And the Rules Enabling Act has been in existence for
70 years and has worked extremely well for 70 years. It is
going to be 70 years about next month, I think.
And as to procedure, the Congress has deferred to us, and I
would ask them to continue to do so. To the extent there are
substantive things that deal with social policy like getting
information to relevant agencies or even the sealed settlements
offers which I do not personally oppose at all. There shouldn't
be sealed settlements, frankly. Those are appropriate for the
Congress and appropriate to enact.
Mr. Franks. Well, thank you. Mr. Chairman, I am about out
of time here. In fact, I am out of time as it looks like.
But let just suggest to the full Chairman of the
Committee--the Chairman of the full Committee, I should say.
There may be an opportunity for reason to get the best of us
all here.
Where Mr. Kaster's comments were he has never won a
situation like that may be where to focus our attention to
where there is some type of appeals process or something that
would overcome a recalcitrant or unreasonable judge that, you
know, is simply not looking at the facts.
If he has never won, one of two things. Either he is a
really rotten lawyer and that doesn't occur----
Mr. Conyers. He is going to share with me those decisions.
Mr. Franks. He is going to explain that, but I just think
that there may be an opportunity for some reasonable compromise
here that would solve the problems of everyone on the--maybe I
am wrong, again, I don't want to be too optimistic in an
environment like this.
But thank you, Mr. Chairman.
Mr. Maffei. Thank you, Mr. Franks. Since the distinguished
Member of the full Committee is here, am I right in
understanding that you are not interested in asking questions,
but you are here to observe and--you are interested in healing
us.
Mr. Conyers. My lips are sealed. [Laughter.]
Mr. Maffei. Well, thank you to the Chairman. Then I will
recognize the distinguished gentleman from North Carolina, Mr.
Coble, for 5 minutes hoping that he doesn't take the full 5
minutes, since we do have floor vote.
Mr. Coble. Mr. Chairman, I will try to move it along.
Judge Kravitz, let me put a two-part question to you.
Judge Kravitz. Sure.
Mr. Coble. If this bill were enacted, how would this impact
the workload of the Federal Judiciary, A, and B, how would you
determine what matters effect public health or safety? Is there
case law or judicial doctrine from which judges might draw to
determine that distinction?
Judge Kravitz. Okay. Two things. First, the average case
load of an active Federal judge is about 550 cases. That is the
average.
There are judges in California who have 1,000 cases. And
the notion that they could then fish through document by
document and get that information to Mr. Kaster in any time
horizon that is reasonable, I think, is illusory.
So I think, again, I am not worried about my burden of
doing this. I am worried about other litigants who deserve our
time and attention.
Secondly, as to whether there is any existing case law,
there is existing case law under the good cause standard of
Rule 26 that requires judges to consider the public interest
and, of course, public health and safety. But this statute says
anything that is relevant to public health and safety.
And I said the last time, I mean, if I have an employment
case and someone is accused of having child pornography on
their computer, is that relevant to public health and safety?
Maybe it is. I don't know.
Mr. Coble. Thank you. I hate to cut you off but I am----
Judge Kravitz. No, that is fine. That is fine.
Mr. Coble. One more question to Ms. Bailey. Ms. Bailey,
what issues or matters do not affect public health or safety?
Give me a couple of examples.
Ms. Bailey. Well, I think that is a tough question. And
fortunately, at this point in my career, I am not a judge. So I
am not in a position to be put to that test.
But the examples that Judge Joe Anderson gave in his
testimony on this same bill last year, made me believe that it
is not that difficult to figure it out if you have the
documents before you. I mean, obviously, a defective go-cart is
something that is going to affect public safety.
You know, the formula for Coca-Cola, hopefully, will not be
something that affects public safety. I realize there is a
great deal of gray area but my understanding is that judges
engage in this kind of balancing every day as part of their
jobs. And I think this is a worthwhile use of that skill.
Mr. Coble. Thank you. And I am on a short leash. So I will
yield back, Mr. Chairman.
Mr. Cohen. Thank you. Thank you. We are all on short
leashes. I want to ask one question, then we will be unleashed.
Judge Kravitz asked to the panel, do you know of any
Federal judges that are abusing the process? Does anybody know
any Federal judges abusing the process?
Mr. Kaster, quickly, because we have to vote.
Mr. Kaster. Mr. Chairman, I can give you a list of numerous
judges that I believe are abusing the process because they----
Mr. Cohen. Federal judges?
Mr. Kaster. Federal judges.
Mr. Cohen. And, Ms. Bailey, do you----
Mr. Kaster. I only talked about Federal judges today.
Mr. Cohen. All right. Ms. Bailey, do you have any?
Judge Kravitz. And he is going to send me that list.
Mr. Cohen. All right. If you would give that list to Judge
Kravitz and give it to us. And we need to go vote.
And I would like to thank all the witnesses for their
testimony. The Members who attended, without objection, Members
have 5 legislative days to submit any additional written
questions which, as part of the witnesses, ask you to answer as
promptly as possible to be made part of the record.
Without objection the record will remain open for 5
legislative days for submission of any additional material.
Thank you for your time and patience. The Subcommittee is
adjourned. Done.
[Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Response to Post-Hearing Questions from Leslie A. Bailey, Public
Justice
Response to Post-Hearing Questions from Bruce R. Kaster,
Kaster & Lynch, P.A.
Response to Post-Hearing Questions from the Honorable Mark R. Kravitz,
United States District Court for the District of Connecticut
Letters from the Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States submitted by the Honorable
Steve Cohen
Letter of support for the bill, H.R. 1508,
submitted by the Honorable Steve Cohen
