```

[Senate Report 110-439]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 935
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-439

======================================================================

 
                   SUNSHINE IN LITIGATION ACT OF 2008

                                _______
                                

                 August 1, 2008.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                         [To accompany S. 2449]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2449), 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, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Sunshine in Litigation Act of 2008.1
 II. History of the Bill and Committee Consideration.................13
III. Section-by-Section Summary of the Bill..........................15
 IV. Congressional Budget Office Cost Estimate.......................17
  V. Regulatory Impact Evaluation....................................18
 VI. Conclusion......................................................18
VII. Changes to Existing Law Made by the Bill, as Reported...........18

  I. Background and Purpose of the Sunshine in Litigation Act of 2008

    The purpose of S. 2449, the Sunshine in Litigation Act, is 
to protect the public from potential health or safety dangers 
that are too often concealed by court orders restricting 
disclosure of information.
    The bill requires judges to consider the public's interest 
in disclosure of health and safety information before issuing a 
protective order or an order to seal court records or a 
settlement agreement. Under this bill, the proponent of such an 
order must demonstrate that the order would not restrict the 
disclosure of information relevant to protecting public health 
and safety. If the order would restrict disclosure, the judge 
must find that the public interest in a potential health or 
safety hazard is outweighed by a specific and substantial 
interest in maintaining confidentiality before issuing the 
order.
    The bill also prohibits a court from approving or enforcing 
any provision of an agreement between or among parties that 
restricts a party from disclosing public health or safety 
information that is relevant to the lawsuit to any Federal or 
State agency with authority to enforce laws regulating an 
activity related to such information. In addition, the bill 
prohibits a court from enforcing any provision of a settlement 
agreement that prohibits disclosure of public health or safety 
information unless it has made findings of fact that the 
public's interest in disclosure of the potential health or 
safety hazards is outweighed by a specific and substantial 
interest in maintaining the confidentiality of the information.
    A number of consumer advocacy and open government groups\1\ 
support S. 2449 because it will protect legitimate interests in 
confidentiality while ensuring that court-endorsed secrecy does 
not jeopardize public welfare by concealing information about 
potential public health or safety dangers from consumers and 
regulatory agencies.
---------------------------------------------------------------------------
    \1\The Sunshine in Litigation Act: Does Court Secrecy Undermine 
Public Health and Safety?: Hearing Before the Subcomm. on Antitrust, 
Competition Policy and Consumer Rights of the S. Comm. on the 
Judiciary, 110th Cong. (Dec. 11, 2007) [hereinafter 2007 Hearing] 
(submission for the record from Reporters Committee for Freedom of the 
Press); Letter to Senator Herb Kohl from National Consumer's League, 
Center for Justice and Democracy, Consumers Union, Consumer Federation 
of America, National Association of Consumer Advocates, Government 
Accountability Project, Kids in Danger, Public Citizen and US PIRG 
(Mar. 4, 2008). The bill was also endorsed by the New York Times. 
Editorial, Need to Know, NY Times, March 12, 2008, http://
www.nytimes.com/2008/03/12/opinion/
12wed3.html?scp=3&sq=%22need+to+know%22&st=nyt (last visited Apr. 10, 
2008).
---------------------------------------------------------------------------
    This legislation will take effect 30 days after the date of 
enactment and apply only to orders entered in civil actions or 
agreements entered into on or after such date. The Sunshine in 
Litigation Act is not meant to preempt or displace current law, 
the Federal Rules of Civil Procedure, common law or First 
Amendment law unless that law may provide greater openness and 
access to litigation documents, court records or proceedings. 
Furthermore, this legislation is not meant to preclude other 
interests the public may have in restricting disclosure of 
information, such as financial fraud or environmental harms.
    Court secrecy prevents the public from learning about 
public health and safety dangers. 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. At hearings in 1990 and 1994, the Judiciary 
Committee's Subcommittee on Courts and Administrative Practice 
heard testimony about some of the many examples of these cases 
such as those involving complications from silicone breast 
implants, adverse reactions to a prescription pain killer, 
``park to reverse'' problems in pickup trucks, and defective 
heart valves. Other examples include cases involving dangers 
from side-saddle gas tanks, playground equipment, IUD birth 
control devices, tires and portable cribs.
    In December 2007, the Judiciary Committee's Subcommittee on 
Antitrust, Competition Policy and Consumer Rights received 
testimony about more recent examples, including 
Phenylpropanolamine (PPA) in children's over-the-counter 
medicine, Cooper tires and the prescription drug Zyprexa.
    This problem most often arises in product liability cases. 
Typically, an individual sues a manufacturer for an injury or 
death that has resulted from a defect in one of the 
manufacturer's products. In these cases, the victim generally 
faces a large corporation that can spend large sums of money 
defending the lawsuit and prolonging its resolution. Facing a 
formidable opponent and mounting medical bills, plaintiffs are 
discouraged from continuing and often seek to settle the 
litigation. 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. While the 
plaintiff gets a respectable award and the defendant is able to 
keep damaging information from being publicized, the public 
remains unaware of critical health and safety information that 
could potentially save lives.
    In some of the examples cited, the civil complaint and 
other court records may have been available to the public. 
However, this publicity is minimal and not sufficient to notify 
the public and regulatory agencies or to prevent additional 
injuries.\2\ In cases involving dangerous products, often it is 
the ``smoking gun'' documents, uncovered during discovery and 
sealed in settlement agreements, that will adequately inform 
the public and regulators about a health or safety danger. As a 
result, it takes the public and regulators much longer than it 
should have to discover dangers to health and safety. 
Furthermore, in most cases, defendants continue to insist on 
secrecy even after some information has become public.\3\
---------------------------------------------------------------------------
    \2\2007 Hearing (testimony and responses to questions by Judge 
Anderson).
    \3\According to Bruce Kaster, a lawyer who has represented clients 
in cases against Cooper Tire, Cooper still aggressively fights for 
protective orders despite the fact that there is some publicity about 
the cases.
---------------------------------------------------------------------------

                      A. EXAMPLES OF COURT SECRECY

1. Zomax

    The popular painkiller Zomax, manufactured by McNeil 
Pharmaceuticals and linked to a dozen deaths and more than 400 
severe allergic reactions, was taken off the market only after 
McNeil settled dozens of lawsuits with sealed settlements. In 
1990, Devra Lee Davis testified before the Subcommittee on 
Courts and Administrative Practice about how she nearly died 
from taking this legally prescribed drug. She later learned 
that the company had known that the drug could kill some people 
and used judicially sanctioned secrecy to keep the information 
from the public and from others injured by the drug.\4\
---------------------------------------------------------------------------
    \4\Examining the Use of Secrecy and Confidentiality of Documents by 
Courts in Civil Cases: Hearing Before the Subcomm. on Courts and 
Administrative Practice of the S. Comm. on the Judiciary, 101st Cong. 
(May 17, 1990) [hereinafter 1990 Hearing] (testimony of Devra Davis 
Lee); Davan Maharaj, Tire Recall Fuels Drive to Bar Secret Settlements, 
LA Times, September 10, 2000, at A1.
---------------------------------------------------------------------------

2. Zyprexa

    In 2005, the drug company Eli Lilly settled 8,000 cases 
related to Zyprexa, a drug used to treat schizophrenia and 
bipolar disorder. These cases alleged that Eli Lilly did not 
disclose known harmful side effects of Zyprexa, such as 
inordinate weight gain and dangerously high blood sugar levels 
that sometimes resulted in diabetes. Eli Lilly was also accused 
of promoting off label use of the drug by urging doctors to 
prescribe it to elderly patients with dementia. All of the 
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.'' The public did not learn about these 
settlements or Zyprexa's dangerous side effects until two years 
later, in 2006, when The New York Times was leaked documents 
from the case that were subject to a protective order.\5\
---------------------------------------------------------------------------
    \5\Alex Berenson, Drug Files Show Maker Promoted Unapproved Use, NY 
Times, Dec. 18, 2006, http://www.nytimes.com/2006/12/18/business/
18drug.html?scp=10&sq=zyprexa&st=nyt (last visited Apr. 10, 2008); Alex 
Berenson, Lilly Settles With 18,000 Over Zyprexa, NY Times, Jan. 5, 
2007, http://query.nytimes.com/gst/
fullpage.html?res=9F00E5DB1430F936A35752 
C0A9619C8B63&sec=&spon=&pagewanted=print (last visited Apr. 10, 2008).
---------------------------------------------------------------------------

3. Phenylpropanolamine (PPA)

    In 1996, a seven-year-old boy in Washington State suffered 
a sudden stroke and fell into a coma hours after taking an 
over-the-counter medicine used to treat an ear infection. After 
three years in a coma, he died. The child's mother sued the 
manufacturer of the medicine alleging that the stroke was 
induced by PPA, an ingredient with deadly potential side 
effects, which has since been banned by the FDA. Unknown to the 
public, many similar lawsuits in State and Federal courts had 
previously been filed against the drug manufacturer, but were 
settled secretly, with the lawyers and plaintiffs subject to 
restrictive confidentiality orders. In 2005, the mother settled 
her case and agreed to keep the information she learned and 
terms of the settlement secret.\6\
---------------------------------------------------------------------------
    \6\Second Amended Complaint, Estate of Matthew Walker v. Whitehall-
Robins, No. 0105-05204 (filed Or. Cir. Ct., Oct. 26, 1999); Interview 
with Leslie O'Leary, attorney for the Estate of Matthew Walker.
---------------------------------------------------------------------------

4. Bjork-Shiley heart valve

    Over the course of several years, Pfizer's Bjork-Shiley 
heart valves were linked to 248 deaths. Pfizer insisted on 
secrecy agreements in settling dozens of lawsuits before the 
FDA finally removed the valves from the market. The 
Subcommittee on Courts and Administrative Practice heard 
testimony from Frederick Barbee about how court-endorsed 
secrecy prevented him and his wife from learning about the 
potential heart valve malfunction and ultimately prevented her 
from getting the appropriate and life-saving treatment she 
needed when her valve malfunctioned.\7\
---------------------------------------------------------------------------
    \7\1990 Hearing (testimony of Frederick R. Barbee); Davan Maharaj, 
supra note 4.
---------------------------------------------------------------------------

5. Dalkon Shield

    In 1974, the FDA suspended use of the Dalkon Shield, a 
popular intrauterine birth control device. The device was 
linked to 11 deaths and 209 cases of spontaneous abortion. 
Prior to the FDA's action, it was reported that the maker of 
the device, A.H. Robins, had settled numerous cases with strict 
confidentiality agreements. The manufacturer even attempted to 
include agreements with the plaintiffs' lawyers that would have 
prohibited them from taking another Dalkon Shield-related 
case.\8\
---------------------------------------------------------------------------
    \8\Maharaj, supra note 4.
---------------------------------------------------------------------------

6. Silicone breast implants

    Information about the hazards of silicone breast implants 
was discovered during litigation as early as 1984, but because 
of a protective order that was issued when the case settled, 
the information remained hidden from the public and the FDA. It 
was not until several years and tens of thousands of victims 
later that the public learned of potentially grave risks posed 
by the implants. The Subcommittee on Administration and the 
Courts heard testimony from Sybil Niden Goldrich about her 
injuries allegedly caused by silicone breast implants and how 
the use of protective orders prevented the public from learning 
about the risks posed by breast implants.\9\
---------------------------------------------------------------------------
    \9\S. 1404: Hearing Before the Subcomm. on Courts and 
Administrative Practice of the S. Comm. on the Judiciary, 101st Cong. 
(Apr. 20, 1994) [hereinafter 1994 Hearing] (testimony of Sybil Niden 
Goldrich).
---------------------------------------------------------------------------

7. Ephedra

    Ephedra is a supplement that was widely popular until it 
was banned by the FDA in 2004. The ban may have come earlier 
and lives may have been saved had it not been for court 
endorsed secrecy through protective orders and confidential 
settlements. Deaths related to ephedra occurred as early as 
1994. The existence of 14,700 consumer complaints about 
Metabolife 356, and other documents relating to the safety 
risks of ephedra, although turned over in lawsuits against the 
company, were concealed by protective orders and confidential 
settlements. In 2000, the FDA tried unsuccessfully to intervene 
in a consumer lawsuit to gain access to the complaints which 
were under seal in a protective order.\10\ It took significant 
public attention and a congressional investigation for 
Metabolife to finally agree to provide the FDA and Congress the 
adverse event reports. The investigation revealed that prior to 
1999, Metabolife had 138 reports of significant adverse events, 
including heart attacks, strokes, seizures, and psychosis.\11\
---------------------------------------------------------------------------
    \10\In Bloom vs. Metabolife, the FDA sought to intervene in order 
to challenge a protective order that concealed health and safety 
information. Penni Crabtree, Court orders often keep companies' darkest 
secrets hidden, San Diego Union Tribune, Sept. 8, 2002, H-1; Dr. Lester 
Crawford discusses the Justice Department and FDA investigation of 
Metabolife for its use of ephedra in its diet supplement, National 
Public Radio (NPR) August 16, 2002.
    \11\Adverse Event Reports from Metabolife, Minority Staff Report, 
Special Investigations Division, Committee on Government Reform, U.S. 
House of Representatives. Oct. 2002. http://oversight.house.gov/
documents/20040827102309-56026.pdf (last visited Apr. 10, 2008).
---------------------------------------------------------------------------

8. ``Park-to-Reverse'' malfunction

    For many years, Ford was aware of problems associated with 
a ``park-to-reverse'' malfunction in its pickup trucks and 
quietly settled cases stemming from this alleged defect. It was 
not until several years later that Ford made a minimal effort 
to notify original owners by sending stickers alerting them 
that there was a problem. The stickers made no mention of the 
potential risks of serious injury or death. Unfortunately, 2.7 
million of these truck owners did not receive the warning. One 
victim of the alleged defect was Tom Schmidt. His parents, 
Leonard and Arleen Schmidt testified before the Subcommittee on 
Courts and Administrative Practice. During their lawsuit they 
learned that Ford had known about the problem as early as 1970 
and for many years, Ford had quietly settled cases with strict 
protective orders concealing information about the problem.\12\
---------------------------------------------------------------------------
    \12\1994 Hearing (testimony of Leonard and Arleen Schmidt); 
Maharaj, supra note 4.
---------------------------------------------------------------------------

9. Side-Saddle gas tanks

    Over the course of several years, General Motors quietly 
settled more than 200 cases brought by victims of fiery car 
crashes involving the automaker's side-mounted gas tanks before 
the defect came to light. It was not until 1993, when General 
Motors sued Ralph Nader and the Center for Auto Safety for 
defamation, that lawyers discovered records showing that 
General Motors had been sued in approximately 245 individual 
gas tank pickup cases. The earliest cases had been filed as far 
back as 1973. Almost all cases were settled and almost all of 
the settlements required the plaintiffs to keep the information 
they discovered secret.\13\
---------------------------------------------------------------------------
    \13\2007 Hearing (testimony of Richard Zitrin); Maharaj, supra note 
4.
---------------------------------------------------------------------------

10. Bridgestone/Firestone tires

    From 1992 to 2000, accidents caused by tread separations of 
Bridgestone and Firestone tires resulted in more than 250 
deaths and 800 injuries. Over the course of several years, 
Firestone quietly settled lawsuits relating to the tread 
separation, most of which included secrecy agreements. It was 
not until 1999, when a Houston public television station broke 
the story, that the company acknowledged its wrongdoing and 
recalled 6.5 million tires.\14\
---------------------------------------------------------------------------
    \14\Richard Zitrin, The Judicial Function: Justice Between the 
Parties, Or a Broader Legal Interest?, 32 Hofstra L. REV. 1573, 1567 
(2004); Maharaj, supra note 4.
---------------------------------------------------------------------------

11. Cooper tires

    In 2002, Johnny Bradley's wife was killed, and he and his 
son were injured, in a Ford Explorer rollover accident. The 
accident was allegedly caused by tread separation in the SUV's 
Cooper tires. While litigating the case, Mr. Bradley's attorney 
uncovered Cooper Tire documents that showed Cooper tires were 
prone to tread separation because of design defects. These 
documents had been kept secret through protective orders in 
numerous cases prior to the Bradley's car accident. In Mr. 
Bradley's case against Ford and Cooper Tire, the jury found 
that Ford was not liable for the accident. Before the trial 
proceeded to the claims against Cooper, the claims were dropped 
and the parties involved agreed to settle with almost all 
litigation documents remaining confidential under a broad 
protective order. Mr. Bradley and his lawyer, familiar with the 
documents and unable to speak about the details due to 
protective orders, believe that if the documents were made 
public Cooper Tire would be forced to fix the tread separation 
problem.\15\
---------------------------------------------------------------------------
    \15\2007 Hearing (testimony of Johnny Bradley, Jr.).
---------------------------------------------------------------------------

12. All-Terrain vehicles (ATVs)

    While the Consumer Product Safety Commission (CPSC) has 
long publicized information about ATV safety and maintained a 
reporting system for collecting data about injuries and deaths, 
it has not taken action on many alleged design and 
manufacturing defects. There continue to be cases filed in 
State and Federal courts about manufacturing and product design 
defects in ATVs. The defendants routinely obtain protective 
orders to keep information secret and plaintiffs often settle 
before trial. In a case filed in the Central District of 
Illinois, K.V. vs. Kawasaki, the plaintiffs objected to the 
protective order sought by the defendants. In this case, a 
young boy was injured when his ATV flipped over in a corn 
field. The corn stalks protected him from being crushed, but 
the oil vent lacked a simple mechanism to prevent boiling hot 
oil from leaking out and severely burning 25 percent of the 
boy's body.\16\
---------------------------------------------------------------------------
    \16\200 U.S. Dist. Ct. Motions 615230; 2006 U.S. Dist. Cot. Motions 
Lexis 45118; Interview with Daniel Pope, Phebus & Koester, Oct. 22, 
2007.
---------------------------------------------------------------------------
    Opposing the protective order, the plaintiff argued that 
the defendant did not substantiate its claim that trade secrets 
satisfied the ``good cause'' showing, required under Rule 26(c) 
of the Federal Rules of Civil Procedure. The plaintiff also 
claimed that the health and safety risks of ATVs, well 
documented by the CPSC and the American Association of 
Pediatrics, justified rejecting the protective order because it 
would conceal information about the alleged defect. According 
to the plaintiff's attorney, the judge simply issued the 
protective order without opinion or written findings in 
response to the plaintiff's arguments. The case settled shortly 
thereafter. If this information were in the public domain, the 
boy's attorney believes that the information he uncovered 
during the lawsuit would either increase pressure on ATV makers 
to make their products safer or pressure the CPSC to 
investigate and take action in response to the defects.

13. Playground equipment

    Miracle Recreation Company manufactured and sold a piece of 
playground equipment called Bounce Around the World. Dozens of 
lawsuits were brought against the company alleging that it was 
dangerous and caused serious injuries to young children, 
including severed limbs and crushed bones. For 13 years, the 
public and regulatory agencies remained in the dark about the 
potentially crippling equipment because the company insisted on 
settling lawsuits conditioned by confidentiality agreements. 
Approximately 80 children between the ages of four and five 
were seriously injured before the CPSC learned about the 
magnitude of the danger and the company recalled the merry-go-
rounds. Following the recall, the Department of Justice charged 
Miracle Recreation in a civil suit with failing to reveal 
reports of injuries to dozens of children.\17\
---------------------------------------------------------------------------
    \17\Barry Meier, Legal Merry-Go-Round; Case Highlights Lack of Data 
Sharing, Newsday, June 5, 1998 at 3.
---------------------------------------------------------------------------

14. Portable cribs

    In May 1998, 16-month-old Danny Keysar was strangled to 
death at his licensed childcare facility when a Playskool 
``Travel-Lite'' portable crib collapsed, trapping his neck in 
the ``V'' of its folded rails. Danny's parents sued the crib 
manufacturers, Kolcraft. During discovery, they learned that 
three prior lawsuits involving the same product defect had been 
settled secretly. Kolcraft offered Danny's parents a 
settlement, but only on the condition that they agreed to a 
secrecy provision. The parents would not accept a settlement 
that mandated their silence. Despite intense pressure to agree 
to a secret settlement, on the eve of trial, the parties 
reached a non-secret $3 million settlement agreement.\18\
---------------------------------------------------------------------------
    \18\Jonathan Eig, How Danny Died, CHICAGO, Nov. 1998, http://
www.kidsindanger.org/news/news_detail/1998_chicmag.pdf (last visited 
Apr. 10, 2008); Danny's story on the Kids in Danger website at http://
www.kidsindanger.org/pressroom/releases/20011206_pr.pdf (last visited 
Apr. 10, 2008).
---------------------------------------------------------------------------

                  B. CIVIL SUITS UNCOVER EARLY DANGERS

    Civil law suits are often a critical first source of 
information about dangerous products.\19\ For example, in a 
class action case against Eli Lilly related to harmful side-
effects of their drug Zyprexa, lawyers uncovered documents that 
showed Eli Lilly knew of Zyprexa's side effects and did not 
adequately warn doctors or consumers. This lawsuit uncovered 
information that the FDA did not have access to and did not 
know about until information was leaked to the New York 
Times.\20\ Had this information been available to the public 
sooner, consumers would have been able to make an informed 
decision about the benefits and risks of taking Zyprexa.
---------------------------------------------------------------------------
    \19\Catherine T. Struve, The FDA and the Tort System: Postmarketing 
Surveillance, Compensation, and the Role of Litigation, 5 Yale J. 
Health Pol'y L. & Ethics 587, 664 (2005); Wendy Wagner, When All Else 
Fails: Regulating Risky Products Through Tort Litigation, 95 Geo. L.J. 
693, 695-696 (2007), ``. . . the tort system plays an indispensable 
role in supplementing agency regulation of risky products and 
activities. In consumer and health protection, for example, the tort 
system provides both more tools and more rewards than the regulatory 
system for enterprising plaintiffs to uncover asymmetric information 
held by regulated parties regarding their products' risks.''
    \20\Berenson, supra n, 4.
---------------------------------------------------------------------------
    Victims who suffer injuries related to a consumer product 
often promptly report their injuries to the CPSC or other 
relevant regulatory agencies. However, victims tend to learn 
specific information about a product defect later, during the 
course of a lawsuit. By this time, they are usually bound by 
protective orders that prohibit disclosure of everything they 
learn during the course of discovery. Because of extremely 
restrictive confidentiality agreements, reporting this 
information to a regulatory agency could mean violating a court 
order and jeopardizing their ability to recover their losses. 
Furthermore, when damaging information is revealed during 
discovery, the company quickly and quietly settles the case 
with a settlement that is almost always conditioned on total 
confidentiality. Thus, the public and the regulatory agencies 
are left in the dark about a dangerous product.

        C. REFORM IS NEEDED TO PROTECT PUBLIC HEALTH AND SAFETY

    Current practices do not adequately balance public 
interests with interests in confidentiality. Judges are not 
limited in the factors they may consider when deciding 
protective orders. However, in the many examples cited above, 
it is clear that judges do not always consider public health 
and safety.
    Judge Joseph Anderson, District Court Judge for the 
District of South Carolina, testifying before the Subcommittee 
on Antitrust, Competition Policy and Consumer Rights, 
acknowledged that while some judges are mindful of the court 
secrecy problem, many judges, facing ever increasing case 
loads, are ``eager to achieve speedy and concrete resolutions 
to their cases, and ever-mindful of the need for judicial 
economy, many judges all too often acquiesce to the demands for 
court-ordered secrecy.''\21\
---------------------------------------------------------------------------
    \21\2007 Hearing (testimony of Judge Anderson).
---------------------------------------------------------------------------
    Leslie Bailey, a public interest lawyer with Public Justice 
who regularly represents clients that oppose protective orders 
that are against the public interest, testified that in her 
experience with requests for protective orders, judges, who are 
often managing heavy caseloads, are inclined to agree to 
whatever type of protection the parties agree on and easily 
find that to be enough good cause.\22\
---------------------------------------------------------------------------
    \22\2007 Hearing (testimony of Leslie Bailey).
---------------------------------------------------------------------------
    Although plaintiffs may be concerned about notifying the 
public of a potential safety hazard, they often agree to 
secrecy out of perceived necessity. Leslie Bailey noted, ``A 
plaintiff's lawyer may be so concerned with gaining access to 
the key documents she needs to present her client's case that 
she does not recognize an unlawful protective order--or may 
decide it isn't worth slowing down the litigation to fight. And 
when faced with a settlement that will compensate their 
clients--especially if the defendant is willing to pay a 
premium for secrecy--few plaintiffs' attorneys balk at the 
condition that the case and the settlement be kept secret. To 
fight would be to delay justice for the client, or possibly to 
lose the chance to settle altogether, and many [clients] cannot 
afford that risk.''\23\
---------------------------------------------------------------------------
    \23\Id.
---------------------------------------------------------------------------
    As a result of the differing interests of judges, 
plaintiffs and defendants, current litigation practices do not 
adequately protect the public from court-endorsed secrecy that 
conceals public health and safety hazards.

                          D. CURRENT PRACTICES

1. Protective orders

    Under Rule 26(c) of the Federal Rules of Civil Procedure, a 
party or any person from whom discovery is sought may move for 
a protective order to keep the discovery materials 
confidential. The court may, for ``good cause,'' issue an order 
to protect a party or person from annoyance, embarrassment, 
oppression or undue burden or expense. Jurisdictions have 
extensive case law dictating what must be shown to establish 
``good cause.'' The ``good cause'' standard varies widely by 
jurisdiction from little more than a stipulation from both the 
parties that the order will expedite discovery to a more 
rigorous showing that there is a specific need to keep the 
information confidential.

2. Court records

    Requests to seal court records or documents filed with the 
court are generally held to a higher standard than that 
required to obtain a protective order due to First Amendment 
law.\24\
---------------------------------------------------------------------------
    \24\Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); 
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press Enterprise 
Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984).
---------------------------------------------------------------------------

3. Settlement agreements

    Under current law, there are no limitations on settlement 
agreements, reached privately or filed with the court, 
regarding the restriction of public health or safety 
information. As with protective orders, judges are free to 
consider public health and safety when deciding other orders 
that restrict access to information, including settlement 
agreements, but no such consideration is required.
    Parties in a civil action may choose to resolve pending 
litigation by agreeing to a settlement that contains a 
confidentiality provision sealing some or all of the discovery 
documents uncovered during litigation, the terms of the 
settlement, the fact that a settlement was reached and/or the 
fact that a case was ever filed.
    Even when not required by statute, parties may choose to 
seek judicial approval of a confidential settlement and file 
the settlement with the court in order to create a court order 
of confidentiality. Once a court approves the confidential 
settlement, the settlement is sealed away and stored by the 
court. Since the court retains jurisdiction over the 
settlement, the court can issue a contempt order against a 
party that violates the confidentiality order. In this 
situation, filing a separate lawsuit is not necessary for the 
court to issue a contempt order.
    Often, parties do not seek judicial approval of the 
confidential settlement, but instead agree to a private 
settlement that is not filed with the court. In these 
instances, the court docket only reveals that the action was 
dismissed by an agreement between the parties. These 
settlements are not accessible to the public. If a party to the 
settlement violates the settlement's confidentiality provision, 
a breach of contract action must be filed before the court may 
step in and enforce this provision.

                      E. EFFECT OF THE LEGISLATION

    The legislation will not displace current practices under 
the Federal Rules of Civil Procedure or common law. Instead, it 
merely requires an additional step--consideration of public 
health and safety--before issuing protective orders, orders 
sealing court records, or settlement agreements. By creating 
this additional requirement, S. 2449 will ensure that court-
endorsed confidentiality protection does not jeopardize the 
public's ability to learn about potential health or safety 
dangers.
    The bill will not burden the Federal court system. It will 
impact only a small subset of Federal cases, those that involve 
public health and safety, and judges regularly weigh competing 
interests in balancing tests like the one required by this 
bill.\25\
---------------------------------------------------------------------------
    \25\2007 Hearing (testimony of Judge Anderson).
---------------------------------------------------------------------------

1. Protective orders

    Some judges already consider the public's interest in 
disclosure of public health and safety information when 
deciding protective orders. For those judges, the effect of 
this legislation will be minimal. For those who do not, S. 2449 
simply requires them make such a consideration.
    The vast majority of cases in the Federal court system have 
no bearing on the protection of public health and safety. In 
these cases, where it is clear that a protective order would 
not restrict the disclosure of information relevant to 
protecting public health or safety, the parties can simply 
certify to the judge that this is the case. Therefore, in most 
cases, judges will be able to issue the order without making a 
significant inquiry based on S. 2449.
    In the relatively small number of cases that do involve 
public health and safety, and where a judge finds that such an 
order would restrict disclosure of information relevant to 
protecting the public, the judge will have to weigh interests 
in disclosure with interests in confidentiality. According to 
S. 2449, a judge may only issue the order after making findings 
of fact that the public interest in disclosure of potential 
health or safety hazards is outweighed by a specific and 
substantial interest in maintaining the confidentiality of the 
information or records in question. Under this balancing test, 
judges will be required to make a more detailed inquiry.
    This additional step required for obtaining a protective 
order will not overburden judges. First, the balancing test 
will only be required in a limited number of cases. Second, S. 
2449 places the burden of proof on the proponent of the order. 
It will be their responsibility to summarize and distill the 
information that would be subject to the protective order. As 
Judge Anderson told the Subcommittee on Antitrust, Competition 
Policy and Consumer Rights, judges regularly engage in 
balancing tests like the one required in S. 2449.\26\ Finally, 
judges can use magistrate judges and special masters to assist 
them in more complex cases.
---------------------------------------------------------------------------
    \26\Id.
---------------------------------------------------------------------------
    The bill recognizes that there are appropriate uses for 
protective orders, such as protecting trade secrets. It makes 
sure that such information is protected by giving judges 
discretion to consider any confidentiality interests that are 
important to the proponent. Furthermore, the bill does not 
limit judges' existing obligations under current law and 
practice to protect information that truly deserves 
confidentiality.
    The legislation strongly protects trade secrets and it is 
expected that judges, as they are already required to do, will 
give ample consideration to them as part of the balancing test. 
However, when a party claims that they need a protective order 
because of a trade secret, they must demonstrate that their 
interest in protecting the trade secret is not outweighed by 
the public's interest in disclosure of a public health or 
safety hazard. In other words, this bill does not permit so-
called trade secrets that pose a threat to public health and 
safety--such as a defective tire design--to justify court-
endorsed secrecy.
    A protective order entered as a result of the balancing 
test shall be no broader than necessary to protect the privacy 
interest asserted. For example, when a party or parties request 
a protective order for a trade secret, the judge should only 
protect the materials that refer to the actual trade secret. If 
the items sought to be protected contain information about a 
potential public health or safety hazard, then, to the extent 
possible, the order shall only cover the trade secret and not 
other information about the potential hazard. As a result, a 
blanket protective order over all materials exchanged during 
discovery cannot be justified by a claim that it deserves 
protection because of a trade secret or other interest in 
confidentiality.

2. Court records

    The bill requires judges to take an additional step when 
considering the existing jurisdictional First Amendment law 
dictating when court records may be sealed. The bill does not 
purport to replace existing law interpreting the First 
Amendment. Instead, it creates an additional reason for 
openness when public health or safety is at issue.

3. Settlement agreements

    The legislation requires judges to apply the provisions in 
subsection (a)(1) prior to approving of or sealing a settlement 
agreement. As with protective orders, if the settlement 
agreement would restrict disclosure of information relevant to 
protecting public health or safety, such as requiring the 
destruction of documents or prohibiting a plaintiff from 
discussing potential public health or safety dangers related to 
his or her case, the judge must apply the balancing test in 
subsection (a)(1)(B) to determine if the public's interest in 
disclosure is outweighed by a specific and substantial interest 
in confidentiality.
    Under subsection (c), S. 2449 will also impact settlements 
involving public health or safety, that otherwise would not be 
reviewed under subsection (a), when and if parties petition the 
court to enforce such settlements. For example, a case may 
settle privately, outside of court, before any requests for 
protective orders. In these cases, a settlement may be 
conditioned on confidentiality and as a result conceal a 
potential public health or safety hazard and prevent the 
plaintiff from disclosing any and all information about their 
case. A plaintiff may be prohibited from disclosing everything 
from the nature of their injury, to the evidence they obtained 
independent of the defendant, or even the very fact that they 
sued the defendant.
    Subsection (c) prevents courts from facilitating 
defendant's efforts to conceal public health and safety 
information. It says that a court shall not enforce a 
settlement that restricts a party's ability to discuss a 
settlement that impacts public health or safety. This will 
protect plaintiffs, who were forced into out-of-court 
settlement agreements with restrictive gag orders, from being 
hauled into court by a defendant for speaking out about their 
settlements involving public health or safety hazards. 
Subsection (c), paragraph (2) makes it clear that the potential 
for nonenforcement of a settlement agreement will only apply in 
cases that restrict the disclosure of information relevant to 
the protection of public health or safety. Thus, in the vast 
majority of cases that are not relevant to public health or 
safety, S. 2449 will not impact a party's ability to make or 
enforce confidentiality provisions in settlement agreements.
    As we have seen with State and Federal court rules that 
limit the ability to seal settlement agreements, the bill is 
not likely to either increase the number of cases that proceed 
to trial or decrease the frequency of settlements. More than 15 
years ago, Florida and Texas adopted a law and court rule, 
respectively, that limit the ability to conceal public health 
and information in civil lawsuits.\27\ Critics of these 
measures argued that the court system would be severely 
disrupted because parties would no longer have the same 
incentives to settle their cases resulting in greater demands 
on trial judges. Opponents made similar claims when the Federal 
District Court for the District of South Carolina unanimously 
adopted Local Rule 5.03(c), which prohibits all sealed 
settlements.\28\ To date, none of these dire predictions has 
come to fruition. In fact, South Carolina's district courts 
have actually experienced a decrease in trials while cases 
continue to settle.\29\
---------------------------------------------------------------------------
    \27\Fla. Stat. Sec. 69.081 (2000); Tex. R. Civ. Pro. 76a.
    \28\Symposium, Secrecy in the Courts: At the Tipping Point?, Vil. 
L. Rev. (2008).
    \29\Id.
---------------------------------------------------------------------------

4. Personally identifiable information

    When weighing the interest in maintaining confidentiality, 
it is intended that judges will use procedures they currently 
use to protect personally identifiable information and national 
security information. Should this information be at issue when 
a judge conducts the balancing test, subsection (d) establishes 
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.
    Although under the balancing test in subsection (a)(1), 
judges would be able to protect this information under current 
practices, this subsection is intended to clarify that S. 2449 
would not compromise an individual's personally identifiable 
information that, in all likelihood, has no bearing on 
protecting public health or safety. For example, a judge may 
find that the public has an interest in the disclosure of 
medical information that describes the harmful side effects of 
a drug because they pose a threat to public health and safety. 
However, the personally identifiable information connected to 
that medical information will remain confidential subject to 
the rebuttable presumption in subsection (d).

5. Classified information

    Similarly, S. 2449 specifically addresses national security 
information in subsection (e). A rule of construction states 
that when weighing the interest in maintaining confidentiality 
under Section (a), nothing in this section shall be construed 
to permit, require or authorize the disclosure of classified 
information. Again, judges have the ability to protect this 
information under current law and under the balancing test in 
subsection (a). However, this subsection is included to make 
clear that S. 2449 does not alter a judge's existing 
obligations to issue protective orders, or orders sealing court 
records or settlements when classified information is at issue.

          II. History of the Bill and Committee Consideration

                      A. INTRODUCTION OF THE BILL

    The Sunshine in Litigation Act was first introduced by 
Senator Kohl in the 103rd Congress as S. 1404. On April 20, 
1994, the Judiciary Committee Subcommittee on Courts and 
Administrative Practice held a hearing, ``S. 1404, 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.'' On June 
27, 1994, the Sunshine in Litigation Act, with some minor 
changes,\30\ was offered as an amendment to S. 687. On June 28, 
1994, the Senate conducted a roll call vote on a motion to 
table the amendment.\31\ The amendment was tabled by a vote of 
51 to 49.
---------------------------------------------------------------------------
    \30\The differences between the amendment and the bill that was 
reported out of Committee were: subsection (a)(1) stated, ``A court 
shall enter an order under rule 26(c) of the Federal Rules of Civil 
Procedure restricting the disclosure of information obtained through 
discovery or an order restricting access to court records in a civil 
case only after making particularized findings of fact that--''; 
subsection (a)(1)(B)(i) stated, ``the public interest in disclosure of 
potential health or safety hazards is clearly outweighed by a specific 
and substantial interest in maintaining the confidentiality of the 
information or records in question''; and the amendment did not include 
anything after subsection (b).
    \31\Vote no. 168, 103rd Congress, 2nd Session (June 28, 1994).
---------------------------------------------------------------------------
    The Sunshine in Litigation Act was introduced again in the 
104th through 109th Congresses. Each Congress it was referred 
to the Committee on the Judiciary and no further action was 
taken.
    In the 110th Congress, Senator Kohl introduced S. 2449, the 
Sunshine in Litigation Act of 2007 on December 11, 2007. 
Senator Patrick Leahy (D-VT) was an original cosponsor. On 
January 28, 2008, Senator Lindsey Graham (R-SC) signed on as a 
cosponsor.

                       B. COMMITTEE CONSIDERATION

    On December 11, 2007, the Senate Judiciary Committee's 
Subcommittee on Antitrust, Competition Policy and Consumer 
Rights held a hearing entitled ``The Sunshine in Litigation 
Act: Does Court Secrecy Undermine Public Health and Safety?'' 
Testimony was received from five witnesses including Johnny 
Bradley, Jr. and Judge Joseph Anderson, Jr., District Court 
Judge for the District of South Carolina.
    Johnny Bradley, Jr. testified about his experience as a 
plaintiff in a case against Cooper Tire Company related to a 
serious car accident that killed his wife and injured him and 
his son. During discovery, Mr. Bradley learned that there had 
been dozens of cases involving Cooper Tire that ended with 
confidential settlements. He told the Subcommittee that during 
his case, his lawyer discovered documents that demonstrate that 
Cooper tires pose a threat to public safety. Due to protective 
orders entered by the judge during the lawsuit, Mr. Bradley is 
unable to publicly speak about these documents.
    Judge Joseph Anderson testified about his views concerning 
the adverse consequences of court-ordered secrecy. In his 
experience, litigants frequently request judges ``approve'' 
their settlements even when the law does not require judicial 
approval. Specifically, judges are often asked to enter orders 
restricting public access to settlement information and 
sometimes the case history. Litigants prefer to involve the 
trial judge in order to ensure the court's power to enforce the 
confidentiality of the agreement. Judge Anderson noted that 
some judges already do consider public health and safety when 
making these decisions. But, he recognized that many judges 
have very large case loads and, as a result, they often agree 
to court-ordered secrecy with little more than mutual consent 
by the parties. Judge Anderson testified about cases he was 
directly involved in and cases he is aware of where judges have 
agreed to requests for court-ordered secrecy where one could 
reasonably argue that public interest and public safety should 
have required openness.
    Judge Anderson also testified about the success of a local 
rule unanimously adopted by South Carolina's District Court in 
2002, which bans secret settlements. Contrary to the claims of 
those who opposed the rule, data indicate it has not resulted 
in more trials and that cases continue to settle. In fact, the 
number of trials has actually decreased over the past five 
years.
    Since his testimony, Judge Anderson has endorsed S. 2449, 
saying that it is ``carefully-crafted legislation proposes a 
nuanced approach that simply requires judges to employ a 
balancing test--weighing the need for secrecy compared to 
potential harm to the public--and then to make specific factual 
findings before entering confidentiality orders. This 
`balancing test' would not be a new experience: weighing 
competing interests is what judges do on a daily basis.''\32\
---------------------------------------------------------------------------
    \32\Anderson, supra note 27.
---------------------------------------------------------------------------
    On March 6, 2008, the Judiciary Committee met in executive 
session to consider the bill. Senator Kohl offered an amendment 
in the nature of a substitute that made four changes to the 
bill. Two changes were technical. One changed the bill title to 
the ``Sunshine in Litigation Act of 2008.'' The other added to 
subsection (c) a reference to subsection (a)(1) to make clear 
that this provision only applies to cases involving public 
health and safety. The other two changes were rules of 
construction that make it clear that the bill does not 
compromise protections for classified information or personally 
identifiable information related to financial, health or other 
related information. The substitute amendment was accepted by 
unanimous consent.
    The Committee then voted to report the Sunshine in 
Litigation Act of 2008, with an amendment in the nature of a 
substitute, favorably to the Senate. The Committee proceeded by 
roll call vote as follows:

                     TALLY: 12 YEAS, 6 NAYS, 1 PASS

    Yeas (12): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl 
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), 
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI), Grassley (R-
IA), Graham (R-SC).
    Nays (6): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Cornyn 
(R-TX), Brownback (R-KS), Coburn (R-OK).

              III. Section-by-Section Summary of the Bill

Section 1. Short title

    This section provides that the legislation may be cited as 
the ``Sunshine in Litigation Act of 2008.''

Section 2. Restrictions on protective orders and sealing of cases and 
        settlements

    Section 2(a) amends chapter 111 of title 28 of the United 
States Code, by adding section 1660 to the end of chapter 111. 
Title 28 of the U.S. Code governs the Federal judiciary and 
Federal judicial procedure. Under current law, Federal courts 
may enter protective orders under Rule 26(c) of the Federal 
Rules of Civil Procedure simply by a showing that ``good 
cause'' for the protective order exists. The new section 1660 
augments this ``good cause'' showing by requiring a court to 
make additional findings of fact for certain protective orders 
under Rule 26(c) of the Federal Rules of Civil Procedure. In 
the case of court records and sealed settlement agreements, the 
new section augments existing laws, including common law and 
First Amendment law, dictating the standard for sealing such 
items.
    Subsection (a), paragraph (1) requires that before entering 
a discovery protective order, an order restricting access to 
documents filed with the court, an order sealing a settlement 
agreement that would restrict the disclosure of such 
information, or an order restricting access to court records in 
a civil case, the court must make certain findings regarding 
public health and safety.
    Subparagraph (A) states that a judge may enter an order 
referenced in (a)(1) when such order would not restrict the 
disclosure of information which is relevant to the protection 
of public health and safety.
    Subparagraph (B), clause (i) states that in the event that 
a judge finds that such an order would restrict disclosure of 
information relevant to protecting public health and safety, 
the judge may only issue the order after making findings of 
fact that the public interest in disclosure of potential health 
or safety hazards is outweighed by a specific and substantial 
interest in maintaining the confidentiality of the information 
or records in question.
    Clause (ii) states that the protective order entered as a 
result of the balancing test in clause (i) shall be no broader 
than necessary to protect the privacy interest asserted.
    Paragraph (2) states that no order entered in accordance 
with paragraph (1), other than an order approving a settlement 
agreement, shall continue in effect after the entry of final 
judgment, unless, at the time of, or after, the court makes a 
separate finding of fact that the requirements of paragraph (1) 
have been met.
    Paragraph (3) states that the party who is the proponent 
for the entry of an order, as provided in this section, shall 
have the burden of proof in obtaining such an order.
    Paragraph (4) states that section 2 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 stipulation of the parties.
    Paragraph (5), subparagraph (A) states that the provisions 
of this section shall not constitute grounds for withholding 
information in discovery that is otherwise discoverable under 
Rule 26 of the Federal Rules of Civil Procedure.
    Paragraph (5), subparagraph (B) states that no party shall 
request, as a condition for the production of discovery, that 
another party stipulate to an order that would violate this 
section.
    Subsection (b), paragraph (1) states that a court shall not 
approve or enforce any provision of an agreement between or 
among parties to a civil action, or approve or enforce an order 
subject to subsection (a)(1), that 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.
    Subsection (b), paragraph (2) states that any such 
information disclosed to a Federal or State agency shall be 
confidential to the extent provided by law.
    Subsection (c) paragraph (1) states that, 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 one or more parties from--(A) 
disclosing that a settlement was reached or the terms of such a 
settlement, other than the amount of money paid; or (B) 
discussing a case, or evidence produced in the case, that 
involves matters related to public health or safety. Paragraph 
(2) states that paragraph (c)(1) does not apply if the court 
has made findings of fact that the public interest in the 
disclosure of potential public health or safety hazards is 
outweighed by a specific and substantial interest in 
maintaining the confidentiality of the information.
    Subsection (d) is a rule of construction which says that 
when weighing the interest in maintaining confidentiality under 
Section (a), there is rebuttable a 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.
    Subsection (e) is a rule of construction which says that 
when weighing the interest in maintaining confidentiality under 
Section (a), 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).
    Section 2(b) amends the table of sections or chapter 111 of 
title 28 of the United States Code by adding after the item 
relating to section 1659--``1660. Restrictions on protective 
orders and sealing of cases and settlements.''

Section 3. Effective date

    This section states that the effective date of the 
amendments made by this Act shall take effect 30 days after the 
date of enactment of this Act; and apply only to orders entered 
in civil actions or agreements entered into on or after such 
date.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 
2449, the following estimate and comparison prepared by the 
director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                    March 18, 2008.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2449, the Sunshine 
in Litigation Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Leigh Angres.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2449--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

    S. 2449 would, under certain conditions, prevent federal 
judges from issuing protective orders restricting the use of 
litigation records that could influence public health or 
safety. The bill would take effect 30 days after enactment and 
would apply to protective orders in civil actions or 
arrangements entered on or after that date.
    CBO estimates that enacting S. 2449 would have no 
significant impact on the federal budget. The bill could alter 
and possibly increase the workloads of federal attorneys, court 
staff, and judges. CBO estimates, however, that any resulting 
increase in spending would total less than $500,000 a year, 
assuming the availability of appropriated funds. Enacting S. 
2449 would not affect direct spending or revenues.
    S. 2449 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Leigh Angres. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 2449.

                             VI. Conclusion

    The Sunshine in Litigation Act of 2008, S. 2449, is a 
straightforward and narrowly targeted measure that will ensure 
that court-endorsed secrecy will not jeopardize public health 
and safety by concealing information about potential health or 
safety dangers from consumers and regulatory agencies.

       VII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2449, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                         28 U.S.C. CHAPTER 111

SEC. 1660. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF CASES AND 
                    SETTLEMENTS.

    (a)(1) A court shall not enter an order 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 in 
a civil case unless the court has made 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 
        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 protective order is no broader 
        than necessary to protect the privacy interest 
        asserted.
    (2) No order entered in accordance with paragraph (1), 
other than an order approving a settlement agreement, shall 
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) have 
been 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) No party shall request, as a condition for the 
production of discovery, that another party stipulate to an 
order that would violate this section.
    (b)(1) A court shall not approve or enforce any provision 
of an agreement between or among parties to a civil action, or 
approve or enforce an order subject to subsection (a)(1), that 
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 between or among 
parties that prohibits 1 or more parties from--
          (A) disclosing that a settlement was reached or the 
        terms of such settlement, other than the amount of 
        money paid; or
          (B) discussing a case, or evidence produced in the 
        case, that involves matters related to public health or 
        safety.
    (2) Paragraph (1) does not apply if the court has made 
findings of fact that the public interest in the disclosure of 
potential health or safety hazards is outweighed by a specific 
and substantial interest in maintaining the confidentiality of 
the information.

                                  

```