[Congressional Record: March 17, 2011 (Senate)]
[Page S1836-S1838]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KOHL:
S. 623. 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 with Senator Graham to
introduce the Sunshine in Litigation Act of 2011, a bill that will curb
the ongoing abuse of secrecy orders in Federal courts. The result of
this abuse, which often comes in the form of sealed settlement
agreements, is to keep important health and safety information hidden
from the public. As we recognize Sunshine Week, this bipartisan,
commonsense measure is an important step to improving transparency in
our
[[Page S1837]]
courthouses by requiring judges to consider public health and safety
before permitting secrecy agreements.
This problem of court secrecy has been occurring for decades, and
most often arises in product liability cases. Typically, an individual
brings a cause of action against a manufacturer for an injury or death
that has resulted from a defect in one of its products. The injured
party often faces a large corporation that can spend a virtually
unlimited amount of money defending the lawsuit, prolonging the time it
takes to reach resolution. Facing a formidable opponent and mounting
medical bills, a plaintiff often has no choice but to settle the
litigation. In exchange for the award he or she was seeking, the victim
is forced to agree to a provision that prohibits him or her from
revealing information disclosed during the litigation.
Plaintiffs get a respectable award, and the defendant is able to keep
damaging information from getting out. But the American public incurs
the loss because they remain unaware of critical public health and
safety information that could potentially save lives.
This concern about excessive secrecy is warranted by the long history
of tobacco companies, automobile manufacturers, pharmaceutical
companies, medical device manufacturers, and others settling with
victims and using the legal system to hide information which, if it
became public, could protect the American people from future health and
safety harms. Surely, there are appropriate uses for such orders, like
protecting trade secrets and other truly confidential company
information, as well as personal identifying and classified
information. This legislation makes sure such information is protected.
But, protective orders are certainly not supposed to be used for the
sole purpose of hiding damaging information from the public, to protect
a company's reputation or profit margin.
One of the most famous cases of abuse of secrecy orders involved
Bridgestone/Firestone tires. From 1992 to 2000, tread separations of
various Bridgestone and Firestone tires caused accidents across the
country, many resulting in serious injuries and even fatalities.
Instead of owning up to their mistakes and acting responsibly,
Bridgestone/Firestone quietly settled dozens of lawsuits, most of which
included secrecy agreements. It wasn't until 1999, when a Houston
public television station broke the story, that the company
acknowledged its wrongdoing and recalled 6.5 million tires. By then, it
was too late. More than 250 people had died and more than 800 were
injured as a result of the defective tires.
If the story ended there, and the Bridgestone/Firestone cases were
just an aberration, one might argue that there is no urgent need for
legislation. But, unfortunately, the list of abuses goes on. There is
the case of General Motors. Although an internal memo demonstrated that
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 trucks with these fuel tanks. When victims sued, GM
disclosed documents only under protective orders, and settled these
cases on the condition that the information in these documents remained
secret. This type of fuel tank was installed for 15 years before being
discontinued.
More recently, the world's largest automaker, Toyota, has faced a
barrage of litigation relating to its recall of over 8 million cars due
to sudden unintended acceleration problems, causing more than eighty
deaths. After years of lawsuits, Congressional oversight hearings, and
Toyota's efforts to keep settlements and product information secret, a
California Federal judge finally made public thousands of previously
sealed documents, noting that ``the business of this litigation should
be in the public domain.'' Had a judge been required to weigh the
public's interest in health and safety, as this legislation would
require, perhaps we would have known more about the risks sooner and
some of those lives could have been saved. Until we put the public
interest on par with the interests of private litigants, public health
and safety will remain at risk.
This very issue is currently before a Federal judge in Orlando, FL.
There, the court is faced with deciding whether AstraZeneca can keep
under seal clinical studies about the harmful side effects of an
antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News
sued to force AstraZeneca to make public documents discovered in
dismissed lawsuits. In 2009, the court unsealed some of the documents
at question, but denied requests to release AstraZeneca's submissions
to foreign regulators and sales representatives' notes on doctors'
meetings. Despite a recent $68.5 million settlement, continued efforts
to unseal crucial documents proved unsuccessful. This is exactly the
sort of case where we need judges to consider public health and safety
when deciding whether to allow a secrecy order.
We are mindful of the risks to public health and safety that court
secrecy orders can pose in the wake of last year's horrific BP oil
spill in the Gulf of Mexico. As the parties continue to fight over
crucial documents, injured parties continue to accept secret
settlements. We can only hope that information vital to public health
and safety, which could protect against the next disaster, is not being
shielded from us as well.
The examples go on and on. At a 2007 hearing before the Senate
Judiciary Committee Subcommittee on Antitrust, Competition Policy and
Consumer Rights, Johnny Bradley Jr. described his tragic personal story
that demonstrates the implications of court endorsed secrecy. In 2002,
Mr. Bradley's wife was killed in a rollover accident allegedly caused
by tread separation in his Cooper tires. While litigating the case, his
attorney uncovered documented evidence of Cooper tire design defects.
Through aggressive litigation of protective orders and confidential
settlements in cases prior to the Bradleys' accident, Cooper had
managed to keep the design defect documents confidential. Prior to the
end of Mr. Bradley's trial, Cooper Tires settled with him on the
condition that almost all litigation documents would be kept
confidential under a broad protective order. With no access to
documented evidence of design defects, consumers continue to remain in
the dark about this life-threatening defect.
In 2005, the drug company Eli Lilly settled 8,000 cases related to
harmful side effects of its drug Zyprexa. All of those settlements
required plaintiffs to agree ``not to communicate, publish or cause to
be published . . . any statement . . . concerning the specific events,
facts or circumstances giving rise to [their] claims.'' In those cases,
the plaintiffs uncovered documents which showed that, through its own
research, Lilly knew about the harmful side effects as early as 1999.
While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and
generated $4.2 billion in sales in 2005. More than a year later,
information about the case was leaked to the New York Times and another
18,000 cases settled. Had the first settlement not included a secrecy
agreement, consumers would have been able to make informed choices and
avoid the harmful side effects, including enormous weight gain,
dangerously elevated blood sugar levels, and diabetes.
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.
Beyond Bridgestone/Firestone, General Motors, Toyota, Seroquel, BP,
Cooper Tire, and Zyprexa, secrecy agreements have also had real life
consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and
numerous other dangerous products and drugs to remain in the market.
And those are only the ones we know about.
While some judges have already begun to move in the right direction
by giving serious weight to public health and safety, we still have a
long way to go. The Sunshine in Litigation Act is a modest proposal
that would require Federal judges to perform a simple balancing test to
ensure that in any proposed secrecy order in a case pleading facts
relevant to public health and safety, 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
[[Page S1838]]
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.
This legislation does not prohibit secrecy agreements across the
board, and it does not place an undue burden on judges or on 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. Since last
Congress, we have made changes to make absolutely clear that this would
apply only to those cases with facts relevant to public health and
safety, and to ensure that there is no undue burden on judges or our
courts. The time to focus some sunshine on public hazards to prevent
future harm is now.
I urge my colleagues to support this important legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 623
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sunshine in Litigation Act
of 2011''.
SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF
CASES AND SETTLEMENTS.
(a) In General.--Chapter 111 of title 28, United States
Code, is amended by adding at the end the following:
``Sec. 1660. Restrictions on protective orders and sealing of
cases and settlements
``(a)(1) In any civil action in which the pleadings state
facts that are relevant to the protection of public health or
safety, a court shall not enter, by stipulation or otherwise,
an order otherwise authorized under rule 26(c) of the Federal
Rules of Civil Procedure restricting the disclosure of
information obtained through discovery, an order approving a
settlement agreement that would restrict the disclosure of
such information, or an order restricting access to court
records unless in connection with such order the court has
first made independent findings of fact that--
``(A) such order would not restrict the disclosure of
information which is relevant to the protection of public
health or safety; or
``(B)(i) the public interest in the disclosure of past,
present, or potential health or safety hazards is outweighed
by a specific and substantial interest in maintaining the
confidentiality of the information or records in question;
and
``(ii) the requested order is no broader than necessary to
protect the confidentiality interest asserted.
``(2) No order entered as a result of the operation
paragraph (1), other than an order approving a settlement
agreement, may continue in effect after the entry of final
judgment, unless at the time of, or after, such entry the
court makes a separate finding of fact that the requirements
of paragraph (1) continue to be met.
``(3) The party who is the proponent for the entry of an
order, as provided under this section, shall have the burden
of proof in obtaining such an order.
``(4) This section shall apply even if an order under
paragraph (1) is requested--
``(A) by motion pursuant to rule 26(c) of the Federal Rules
of Civil Procedure; or
``(B) by application pursuant to the stipulation of the
parties.
``(5)(A) The provisions of this section shall not
constitute grounds for the withholding of information in
discovery that is otherwise discoverable under rule 26 of the
Federal Rules of Civil Procedure.
``(B) A court shall not approve any party's stipulation or
request to stipulate to an order that would violate this
section.
``(b)(1) In any civil action in which the pleadings state
facts that are relevant to the protection of public health or
safety, a court shall not approve or enforce any provision of
an agreement between or among parties, or approve or enforce
an order entered as a result of the operation of subsection
(a)(1), to the extent that such provision or such order
prohibits or otherwise restricts a party from disclosing any
information relevant to such civil action to any Federal or
State agency with authority to enforce laws regulating an
activity relating to such information.
``(2) Any such information disclosed to a Federal or State
agency shall be confidential to the extent provided by law.
``(c)(1) Subject to paragraph (2), a court shall not
enforce any provision of a settlement agreement described
under subsection (a)(1) between or among parties that
prohibits 1 or more parties from--
``(A) disclosing the fact that such settlement was reached
or the terms of such settlement, other than the amount of
money paid; or
``(B) discussing a civil action, or evidence produced in
the civil action, that involves matters relevant to the
protection of public health or safety.
``(2) Paragraph (1) applies unless the court has made
independent findings of fact that--
``(A) the public interest in the disclosure of past,
present, or potential public health or safety hazards is
outweighed by a specific and substantial interest in
maintaining the confidentiality of the information or records
in question; and
``(B) the requested order is no broader than necessary to
protect the confidentiality interest asserted.
``(d) When weighing the interest in maintaining
confidentiality under this section, there shall be a
rebuttable presumption that the interest in protecting
personally identifiable information relating to financial,
health or other similar information of an individual
outweighs the public interest in disclosure.
``(e) Nothing in this section shall be construed to permit,
require, or authorize the disclosure of classified
information (as defined under section 1 of the Classified
Information Procedures Act (18 U.S.C. App.)).''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 111 of title 28, United States Code, is
amended by adding after the item relating to section 1659 the
following:
``1660. Restrictions on protective orders and sealing of cases and
settlements.''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall--
(1) take effect 30 days after the date of enactment of this
Act; and
(2) apply only to orders entered in civil actions or
agreements entered into on or after such date.
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