69–010 

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 reVerDate Aug 31 2005 06:02 Aug 06, 2008 Jkt 069010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR439.XXX SR439

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1The 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). 

strict 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. 

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 


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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. 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. 

(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

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

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 diabeVerDate Aug 31 2005 06:02 Aug 06, 2008 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR439.XXX SR439

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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). 6Second 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. 7 1990 Hearing (testimony of Frederick R. Barbee); Davan Maharaj, supra note 4. 

8Maharaj, supra note 4. 

tes. 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

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-thecounter 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

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

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


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9S. 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). 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). 

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

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

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 


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12 1994 Hearing (testimony of Leonard and Arleen Schmidt); Maharaj, supra note 4. 13 2007 Hearing (testimony of Richard Zitrin); Maharaj, supra note 4. 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. 15 2007 Hearing (testimony of Johnny Bradley, Jr.). 

with strict protective orders concealing information about the problem.12

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

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

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

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 seVerDate Aug 31 2005 06:02 Aug 06, 2008 Jkt 069010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR439.XXX SR439

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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. 17 Barry Meier, Legal Merry-Go-Round; Case Highlights Lack of Data Sharing, Newsday, June 

5, 1998 at 3. 

cret 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

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

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 


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18 Jonathan Eig, How Danny Died, CHICAGO, Nov. 1998, http://www.kidsindanger.org/ 

news/newsldetail/1998lchicmag.pdf (last visited Apr. 10, 2008); Danny’s story on the Kids in 

Danger website at http://www.kidsindanger.org/pressroom/releases/20011206lpr.pdf (last visited Apr. 10, 2008). 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. 21 2007 Hearing (testimony of Judge Anderson). 

agree to a secret settlement, on the eve of trial, the parties reached 

a non-secret $3 million settlement agreement.18

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. 

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


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22 2007 Hearing (testimony of Leslie Bailey). 23 Id. 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). 

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

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

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

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. 


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25 2007 Hearing (testimony of Judge Anderson). 

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

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 


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26 Id. 

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. 

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 courtendorsed 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 


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12 

27Fla. Stat. § 69.081 (2000); Tex. R. Civ. Pro. 76a. 

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 setVerDate Aug 31 2005 06:02 Aug 06, 2008 Jkt 069010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR439.XXX SR439

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28Symposium, Secrecy in the Courts: At the Tipping Point?, Vil. L. Rev. (2008). 29 Id. 30The 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 

Continued 

tlements.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

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 


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14 

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). 

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. 

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 


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15 

32 Anderson, supra note 27. 

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

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 agreeVerDate Aug 31 2005 06:02 Aug 06, 2008 Jkt 069010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR439.XXX SR439

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ments, 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 


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17 

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. 


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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 


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19 

(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. 

Æ 


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