SUNSHINE IN LITIGATION ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

H.R. 5884 

JULY 31, 2008 

Serial No. 110–202 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

SUNSHINE IN LITIGATION ACT OF 2008 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

43–831 PDF 2009

SUNSHINE IN LITIGATION ACT OF 2008 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

H.R. 5884 

JULY 31, 2008 

Serial No. 110–202 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

JULY 31, 2008 

Page 

THE BILL 

H.R. 5884, the ‘‘Sunshine in Litigation Act of 2008’’ ............................................ 3 

OPENING STATEMENTS 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 8 

WITNESSES 

Mr. Richard D. Meadow, the Lanier Law Firm, PLLC 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 56 

Mr. John P. Freeman, Distinguished Professor Emeritus, University of South 

Carolina Law School 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

The Honorable Mark R. Kravitz, Judge, U.S. District Court for the District 

of Connecticut 

Oral Testimony ..................................................................................................... 74 

Prepared Statement ............................................................................................. 76 

The Honorable Joseph F. Anderson, Jr., Judge, U.S. District Court for the 

District of South Carolina 

Oral Testimony ..................................................................................................... 89 

Prepared Statement ............................................................................................. 91 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Ranking Member, Subcommittee 

on Commercial and Administrative Law: 

Letter from the Judicial Conference of the United States ............................ 9 

Letter from the American Bar Association (ABA) ......................................... 17 

Letter from the U.S. Department of Justice .................................................. 20 

Letter from Arthur R. Miller, Professor, New York University School 

of Law ............................................................................................................ 36 

Prepared Statement of Stephen G. Morrison, Esquire .................................. 44 

Prepared Statement of the Honorable Herb Kohl, a U.S. Senator from the 

State of Wisconsin, submitted by the Honorable Linda T. Sa ́nchez, a Representative in Congress from the State of California, and Chairwoman, 

Subcommittee on Commercial and Administrative Law .................................. 51 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Attachments to the Prepared Statement of the Honorable Mark R. Kravitz, 

Judge, U.S. District Court for the District of Connecticut ............................... 108 

Answers to Post-Hearing Questions from Richard D. Meadow, The Lanier 

Law Firm, PLLC .................................................................................................. 321 

Answers to Post-Hearing Questions from John P. Freeman, Distinguished 

Professor Emeritus, University of South Carolina Law School ....................... 323 

Answers to Post-Hearing Questions from the Honorable Mark R. Kravitz, 

Judge, U.S. District Court for the District of Connecticut ............................... 324 

Answers to Post-Hearing Questions from the Honorable Joseph F. Anderson, 

Jr., Judge, U.S. District Court for the District of South Carolina ................... 327 

(1) 

SUNSHINE IN LITIGATION ACT OF 2008 

THURSDAY, JULY 31, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:40 a.m., in 

room 2237, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Sa ́nchez, Cannon, and Jordan. 

Staff present: Matthew Wiener, Majority Counsel; Daniel Flores, 

Minority Counsel; Andre ́s Jimenez, Majority Professional Staff 

Member; and Megan Crowley, Minority Clerk. 

Ms. SA ́ NCHEZ. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law will now 

come to order. 

I will now recognize myself for a short statement. 

Serious concerns have been raised as to whether court secrecy orders may endanger public safety and health. There are several examples of court secrecy orders that have concealed from the public 

and governmental regulatory agencies information about dangerous 

products and other potential harms. 

None is more well known, perhaps, than the secrecy orders involving Firestone tires. Defective Firestone tires resulted in more 

than 250 deaths and many more serious injuries throughout the 

1990’s. Although Firestone knew of the defects by the early 1990’s, 

it concealed the information from the public by settling numerous 

lawsuits under the cover of court secrecy orders. Those orders prohibited plaintiffs from sharing information with the public about 

the defects uncovered during litigation. 

Not until 2000, when Firestone issued a recall, did the public finally learn of them. By then it was too late for those who were already victims and for their families. This is just one notable example. We expect to hear about others during this morning’s testimony. 

The fundamental question before us is whether Congress should 

leave the issue of court secrecy in the hands of Federal judges or, 

instead, address the issue itself. Should we choose the latter, we 

have H.R. 5884, the ‘‘Sunshine in Litigation Act of 2008.’’ H.R. 

5884 mirrors a bill pending before the Senate that has been favorably reported by a bipartisan majority of the Senate Committee on 

the Judiciary. 

2 

H.R. 5884 is modest in its scope. Its key provision would require 

courts to do what some Federal judges already do: consider the 

public’s interest in health and safety before entering certain confidentiality orders that would conceal information from the public 

uncovered during discovery. 

H.R. 5884 would not prohibit a court from ordering the confidentiality of discovery materials when confidentiality is due, such as 

when protecting a trade secret, other proprietary commercial information, or personal information of a private nature. 

It would simply require a court, before entering a nondisclosure 

order, to find that the asserted interest in confidentiality outweighs 

the public interest in open access. And it would require that the 

nondisclosure order be no broader than necessary to protect the 

privacy interest that justifies its issuance. 

To help us evaluate whether these and related restrictions on 

court secrecy orders should be legislatively mandated, we will hear 

from four witnesses. They are: Richard Meadow, a partner in the 

Lanier Law firm in New York; Professor John Freeman, Distinguished Professor Emeritus of Law at the University of South 

Carolina School of Law; the Honorable Mark Kravitz, a judge on 

the United States District Court for the District of Connecticut, 

who is testifying on behalf of the Judicial Conference of the United 

States; and the Honorable Joseph Anderson, Jr., a judge on the 

United States District Court for the District of South Carolina. Accordingly, I look forward to hearing today’s testimony from our witnesses. 

[The bill, H.R. 5884, follows:] 

3 


HR5884-1.eps
4 


HR5884-2.eps
5 


HR5884-3.eps
6 


HR5884-4.eps
7 


HR5884-5.eps
8 

Ms. SA ́ NCHEZ. And at this time, I would now recognize my colleague Mr. Cannon, the distinguished Ranking Member of the Subcommittee, for his opening remarks. 

Mr. CANNON. Thank you, Madam Chair. 

Just as a matter of curiosity, which I should probably frame as 

a parliamentary inquiry, I would think this normally would come 

under the jurisdiction of the Intellectual Property and Courts Subcommittee. Is there a reason why we are doing it here? 

Ms. SA ́ NCHEZ. I would expect that, perhaps, for issues involving 

trade secrets that might be the case. But we are talking about 

issues of public health and welfare. So I believe the jurisdiction is 

properly in this Subcommittee. 

Mr. CANNON. As the Chair knows, I am always anxious to expand the jurisdiction of this Committee. And so I think we should 

go forward. But my sense is that since we are dealing with the 

rules, or the way we make the rules, that this probably would fit— 

what we probably ought to do is get courts in this Committee, because IP has plenty of other things to do. 

I want to thank the witnesses for their testimony today regarding H.R. 5884, the ‘‘Sunshine in Litigation Act of 2008.’’ Oftentimes 

we hold hearings on legislation in this Subcommittee which is supported or opposed by partisan groups on opposite sides of the issue. 

That is not the case with the bill we are considering today. 

Rather, the Sunshine in Litigation Act is opposed not just by 

what would generally be perceived as conservative or pro-business 

groups but by non-partisan groups such as the Judicial Conference 

of the United States and the American Bar Association. The bill is 

also opposed by the Department of Justice. 

I ask unanimous consent that opposition letters from the Judicial 

Conference, the ABA and the Department of Justice be entered into 

the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The information referred to follows:] 

9 


1-1.eps
10 


1-2.eps
11 


1-3.eps
12 


1-4.eps
13 


1-5.eps
14 


1-6.eps
15 


1-7.eps
16 

f 


1-8.eps
17 


2-1.eps
18 


2-2.eps
19 

f 


2-3.eps
20 


3-1.eps
21 


3-2.eps
22 


3-3.eps
23 


3-4.eps
24 


3-5.eps
25 


3-6.eps
26 


3-7.eps
27 


3-8.eps
28 


3-9.eps
29 


3-10.eps
30 


3-11.eps
31 


3-12.eps
32 


3-13.eps
33 


3-14.eps
34 


3-15.eps
35 

Mr. CANNON. And why are these groups opposed to 5884? 

First, they are opposed that the bill circumvents the regular 

order for promulgating changes to the Federal Rules of Civil Procedure established in the Rules Enabling Act. The Rules Enabling 

Act was passed by Congress so that before a Federal rule is adopted or modified, it is thoroughly vetted and studied by the Judicial 

Conference, the public, and the Supreme Court before being presented to Congress. 

There is no reason to abandon that process for the rules changes 

proposed in H.R. 5884. 

Second, they are opposed because the bill is not only unnecessary 

but would increase the burden and cost of litigation. This bill is unnecessary because discovery protective orders are rare. An extensive empirical study conducted by the Judicial Conference revealed 

that in the Federal judicial districts surveyed, protective orders 

were requested in only 6 percent of all civil cases. 

This bill will increase the burden and cost of litigation because 

if confidentiality and privacy are not protected, litigants will be 

forced to oppose any document request that an opposing party 

makes for information which may be sensitive or confidential. 

It will also force judges to make findings of fact every time a protective order is requested. As Judge Kravitz wrote in his testimony, 

requiring courts to review discovery information to make public 

health and safety determinations in every request for a protective 

order, no matter how irrelevant to public health or safety, will burden judges and further delay pretrial discovery—which already, by 

the way, takes way too long. I think we have a consensus on that. 

For these reasons, the Judicial Conference has consistently concluded that provisions affecting Rule 26(c)—similar to those sought 

in H.R. 5884—were not warranted and would adversely affect the 

administration of justice. 

In short, this bill is a bad idea, and it is a bad idea made worse 

by skipping the process that Congress set forth in the Rules Enabling Act. Hopefully, after this hearing we can lay this bill to rest. 

Madam Chair, the size of this panel did not allow us to call some 

additional witnesses to testify in person. However, these witnesses 

have graciously provided us with their written views on the bill. I 

ask unanimous consent that written views of Professor Arthur Miller, a professor at New York University School of Law and one of 

the foremost experts on this area of the law, be entered into the 

record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The information referred to follows:] 

36 


4-1.eps
37 


4-2.eps
38 


4-3.eps
39 


4-4.eps
40 


4-5.eps
41 


4-6.eps
42 


4-7.eps
43 


4-8.eps
44 

Mr. CANNON. As well as the written views of Stephen Morrison, 

a partner at Nelson Mullins, who has tried more than 240 cases 

to a jury verdict and has argued more than 60 appeals in the nation’s highest courts, including the Supreme Court of the United 

States. 

Ms. SA ́ NCHEZ. Also without objection, so ordered. 

[The information referred to follows:] 


5-1.eps
45 


5-2.eps
46 


5-3.eps
47 


5-4.eps
48 


5-5.eps
49 


5-6.eps
50 


5-7.eps
51 

Mr. CANNON. I thank you, Madam Chair. I yield back. 

Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

I would also ask unanimous consent to enter into the record a 

statement of Senator Kohl, who has introduced substantially this 

legislation in successive cycles. Without objection, his testimony 

will be entered into the record. 

[The prepared statement of Senator Kohl follows:] 

PREPARED STATEMENT OF THE HONORABLE HERB KOHL, A U.S. SENATOR FROM THE

STATE OF WISCONSIN

Thank you, Chairwpman Sa ́nchez, for holding a hearing H.R. 5884, the Sunshine 

in Litigation Act of 2008, and the use of secrecy agreements and sealed settlements. 

I would also like to thank Congressman Wexler for introducing this legislation; legislation that I have been working on for many years and which recently passed the 

Senate Judiciary Committee with bipartisan support. I am pleased to see the bill 

advancing here in the House and I look forward to working with Congresswoman 

Sa ́nchez and Congressman Wexler on this important issue. 

Far too often, court approved secrecy agreements and sealed settlements hide 

vital public health and safety information from the American public—putting lives 

at stake. We are all familiar with well-known cases where protective orders and secret settlements prevented the public from learning about the dangers of silicone 

breast implants, IUDs, a prescription pain killer, side-saddle gas tanks, and defective heart valves and tires. This critical health and safety information did not deserve court endorsed protection. 

The Sunshine in Litigation Act is a narrowly targeted measure that will make 

sure court-endorsed secrecy does not keep the public from learning about health and 

safety dangers. Under the bill, judges must consider public health and safety before 

granting a protective order or sealing court records and settlement agreements. 

They have the discretion to grant or deny the secrecy based on a balancing test that 

weighs the public’s interest in a potential public health and safety hazard and legitimate interests in secrecy. The bill does not place an undue burden on our courts. 

It simply states that in a limited number of cases, judges must a closer look at requests for secrecy. 

Last December, at a hearing in the Senate Judiciary Subcommittee on Antitrust, 

Competition Policy and Consumer Rights, we learned that while some judges may 

be more aware of the issue, this problem continues and we have examples to prove 

it. Johnny Bradley told us the chilling details of a car accident caused by tire tread 

separation that killed his wife and left him and his son severely injured. During his 

lawsuit against Cooper Tire, he learned that information about similar accidents 

had been kept secret for years through court orders and secret settlements. Today, 

details about this tire defect remain protected by court orders while Cooper Tire 

continues to aggressively fight attempts to make them public. 

We also learned about the case of Zyprexa, a drug used to treat schizophrenia and 

bipolar disorder. In 2005, the drug company Eli Lilly settled 8,000 cases related to 

Zyprexa. The 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. Documents exchanged during discovery showed 

that Eli Lilly knew of the harmful side effects but did not inform prescribing doctors 

or the FDA. However, 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.’’ As a result, the 

public did not learn about these settlements or Zyprexa’s dangerous side effects 

until two years later when The New York Times leaked documents from the case 

that were covered by a protective order. 

Finally, we heard from Judge Joe Anderson, a federal district court judge in South 

Carolina. We are pleased that the Subcommittee will hear from him today. Judge 

Anderson expressed his support for the Sunshine in Litigation Act as a balanced approach to address ‘‘a discernable and troubling trend’’ for litigants to ask for secrecy 

in cases where public health and safety might be adversely affected. He told us 

about a local rule in South Carolina, one that goes even further than our bill, and 

how it has been a great success. Despite concerns for the increased burden such a 

measure would put on South Carolina’s federal courts, the number of trials has not 

increased and cases continue to settle even though secrecy is no longer an option. 

In response to concerns about national security and personally identifiable information, we included language to ensure that this information is protected. We have 

52 

also heard concerns about protecting trade secrets. I would like to make it very clear 

that our bill protects trade secrets. We are confident that judges, as they are already required to do, will give ample consideration to them as part of the balancing 

test. However, we will not permit trade secrets that pose a threat to public health 

and safety—such a defective tire design—to justify secrecy. 

We take great pride in our court system and its tradition of fairness for plaintiffs 

and defendants alike. However, the courts are public institutions meant to sometimes go beyond simply resolving cases between private parties; they also serve the 

greater goods of law, order and justice. We must not allow court endorsed secrecy 

to jeopardize public health and safety or undermine the public’s confidence in our 

judicial system. 

Again, I thank Chairwoman Sa ́nchez and Congressman Wexler for their attention 

to this important issue and I look forward to working with them to enact the Sunshine in Litigation Act. 

Ms. SA ́ NCHEZ. Without objection, the Chair will be authorized to 

declare a recess of the hearing at any point. 

And at this point, I am now pleased to introduce the witnesses 

for our hearing. Our first witness is Richard Meadow. Mr. Meadow 

has successfully tried over 25 cases to verdict. Since joining the Lanier Law Firm, Mr. Meadow was part of the trial team that obtained plaintiff verdicts in the Vioxx litigation in excess of $300 

million. An active participant in New York and national bar associations, Mr. Meadow currently serves on the board of directors of 

the New York State Trial Lawyers Association. Mr. Meadow has 

lectured at numerous legal conferences and has been appointed to 

many committees that explore issues germane to the medical and 

legal communities. I want to welcome you to today’s panel. 

Our second witness is John Freeman. Professor Freeman joined 

the University of South Carolina Law Faculty in 1973. Prior to 

that, Professor Freeman started law practice in 1970 with the 

Jones Day law firm and subsequently worked for the Securities and 

Exchange Commission, where he served as special counsel analyzing mutual fund issues. He has taught corporate and securities 

law and legal ethics for over 30 years, and has testified as an expert witness or served as trial counsel in various legal malpractice 

lawsuits, ethics proceedings, and investment-related cases. 

Professor Freeman has written and lectured extensively on ethics, malpractice and business-related matters, and writes a regular 

column on professionalism topics for the South Carolina Lawyer. 

Most recently, Professor Freeman has been addressing as a writer 

and commentator certain problems with the way mutual fund sponsors conduct their businesses. Professor Freeman retired from the 

faculty in 2008. He has received various service awards and serves 

as one of the four public members on South Carolina’s Judicial 

Merit Selection Commission. We want to welcome you to today’s 

panel. 

Our third witness is Mark Kravitz. Judge Kravitz was appointed 

in 2003 by President George W. Bush to the U.S. District Court for 

the District of Connecticut. Previously, Judge Kravitz was a partner at the law firm of Wiggin & Dana, LLP, where he worked for 

nearly 27 years, most recently as the chair of the firm’s Appellate 

Practice Group. Before joining Wiggin & Dana, Judge Kravitz 

served as a law clerk to Circuit Judge James Hunter, III, of the 

U.S. Court of Appeals for the Third Circuit, and then to Justice 

William H. Rehnquist of the United States Supreme Court. 

53 

From 2001 to 2007, Judge Kravitz served as a member of the 

Standing Committee on the Rules of Practice and Procedure in the 

United States Courts, the body that oversees the rules of procedure 

and evidence that apply in all Federal courts. During that period, 

he also served as liaison member of the Advisory Committee on 

Criminal Rules. In June of 2007, Chief Justice John Roberts, Jr., 

appointed Judge Kravitz to chair the Advisory Committee on Civil 

Rules, the body that oversees the Federal Rules of Civil Procedure. 

From 1999-2003, Judge Kravitz was a regular columnist and 

commentator for the National Law Journal on appellate law. He 

has also authored numerous articles on a variety of topics. Judge 

Kravitz served as an adjunct professor at the University of Connecticut School of Law from January 1995 to 2001 and a lecturer 

in law at the Yale University Law School in 2000. Welcome to today’s panel. 

Our final witness is Joseph Anderson, Jr. After clerking for the 

Fourth Circuit’s chief judge, Clement Haynsworth, Judge Anderson 

entered private practice with his family law firm. In 1980, he was 

elected to the South Carolina House of Representatives, where he 

served until his appointment to the Federal bench. Judge Anderson 

was also active in political campaigns other than his own, twice 

serving as county chair for Senator Strom Thurmond’s reelection 

efforts and once for Congressman William Jennings Bryan Dorn’s 

bid for governor. 

Judge Anderson has been very active in the community as a 

member, board member and president of various organizations, including the Lions Club, United Way and the Boy Scouts. As a practicing lawyer and judge, he has published a variety of articles on 

substantive topics in trial advocacy. 

I want to thank you all for your willingness to participate in today’s hearing. 

Without objection, your written statements that you have provided will be placed into the record in their entirety. 

And we are going to ask that you please limit your oral testimony to 5 minutes. We do have a lighting system that we sometimes remember to employ here. You will get a green light when 

your time begins. When the light switches from green to yellow, 

that is a warning that you have about a minute to conclude your 

testimony. And then when you receive the red light, that will let 

you know that your time has expired. Of course, if you are mid-sentence or mid-thought when you get the red light, we will allow you 

to complete your final thought before moving on to the next witness. 

With that, at the conclusion of your testimony, we will then allow 

Members to ask questions subject to the 5-minute limit. 

If everybody understands the rules and everybody is ready to 

proceed, I would invite Mr. Meadow to please begin his testimony. 

TESTIMONY OF RICHARD D. MEADOW, 

THE LANIER LAW FIRM, PLLC 

Mr. MEADOW. [Off mike.] 

Ms. SA ́ NCHEZ. Rarely do we have a witness that keeps it to less 

than 5 minutes. 

54 

Mr. MEADOW. I am pleased to appear before the Committee today 

to testify on behalf of myself and my law firm in support of the 

Sunshine in Litigation Act. 

My name is Rick Meadow. I am the managing attorney of the Lanier Law Firm in New York City. We are a Houston-based law firm 

with offices in Los Angeles and Palo Alto, Houston and New York. 

We are involved in pharmaceutical litigation, asbestos litigation, 

toxic tort, and a number of other litigations. Led by Mr. Lanier, we 

took the forefront in the Vioxx litigation as lead counsel. As you 

previously stated, we achieved three of the successful verdicts in 

the Vioxx litigation against Merck Pharmaceuticals. 

Because of the nature of our particular practice, we are subject 

to numerous confidentiality orders and numerous confidentiality 

settlements. It is for that reason that we appear here today on behalf of and in favor of the Sunshine in Litigation Act. 

I would like to discuss the effect of these confidentiality settlements and confidentiality protective orders on numerous litigations. 

The first I would like to discuss is the public health and safety 

of the Zyprexa litigation, but because of the confidentiality order I 

can’t address that. 

I would also like to discuss the public health and safety that is 

in effect because of the Bextra litigation, but because of the confidentiality order in effect I cannot do that either. 

I would like to discuss the Ortho Evra litigation that we are involved in, but I can’t do that as well. 

Nor can I discuss those litigations involving Kugel Mesh, Vioxx— 

which continues—Avandia and many of the other litigations that 

we are involved in. 

Because of the nature of today’s practice, where the majority of 

our litigations end up in the Federal court because of the multi-district litigation process, I am not at liberty to discuss the public 

health and safety and welfare of a number of products that this act 

would take care of and allow us to talk about it. 

I would also like to talk about how some corporate executives, 

based on internal emails, sell stock unbeknownst to an unknowing 

public, but I can’t discuss that as well. 

I could also, would love to, discuss how some corporations pollute 

surrounding neighborhoods with cancer-causing toxic agents, but 

because of the confidentiality agreement and orders I am not allowed to discuss that as well. 

And there is one other litigation I would like to discuss where 

a major automobile manufacturer redesigned their product in midstream after a couple of rollover deaths, but I can’t discuss that as 

well. But because of—— 

Ms. SA ́ NCHEZ. I can now see why you were so confident your testimony would be less than 5 minutes. 

Mr. MEADOW. Well, yes, these are—and you lead me to my next 

line—these are just a few of the many examples where the public 

safety and welfare have taken a backseat to the interests of corporate defendants as well as settling defendants that are injured 

by hazardous products and practices. 

At a time when the nation faces the looming possibility of Federal preemption, the lack of the disinfectant of the Sunshine Law 

55 

would free corporations to operate under the cloak of darkness with 

full immunity on an unsuspecting and unprotected public. This is 

a concept which must concern you, the Members of Congress who 

are entrusted with the significant responsibility to represent and 

protect the public welfare. 

These same interests are behind many meritless arguments that 

the Sunshine Act would chill settlements and overburden the court 

system. I beg to differ. Not only is there no proof of this assertion, 

it impugns the integrity of the bar on both sides of any civil dispute. 

I have addressed these issues in my written statement, but this 

morning I would like to focus on the potential deterrent aspects of 

the Sunshine Act. 

Today, those who choose profits over people, and thus risk litigation if they are caught, take comfort in their proven ability to demand confidentiality in exchange for providing unfettered discovery 

and in exchange for ultimately settling with some claimants, who 

are often only a tiny fraction of the victims of a hazardous product. 

If the Sunshine Act were in place, these same interests would 

have good reason to think twice before rushing a product to market 

because their actions would be unveiled for all the public to see. 

The need for the Sunshine Act has recently become more urgent. 

The American public increasingly has nowhere to turn. The FDA, 

Consumer Product Safety Commission, EPA, and other governmental agencies are overworked, underfunded, and in some cases 

unmotivated to protect the public welfare. The last line of defense 

may rest with Congress beginning with the Sunshine in Litigation 

Act. 

Thank you. 

[The prepared statement of Mr. Meadow follows:] 

56 

PREPARED STATEMENT OF RICHARD D. MEADOW


RDM-1.eps
57 


RDM-2.eps
58 


RDM-3.eps
59 


RDM-4.eps
60 


RDM-5.eps
61 


RDM-6.eps
62 


RDM-7.eps
63 


RDM-8.eps
64 


RDM-9.eps
65 

Ms. SA ́ NCHEZ. Thank you, Mr. Meadow. We appreciate your testimony. 

At this time, I would invite Professor Freeman to give his testimony. 

TESTIMONY OF JOHN P. FREEMAN, DISTINGUISHED PROFESSOR EMERITUS, UNIVERSITY OF SOUTH CAROLINA LAW 

SCHOOL 

Mr. FREEMAN. Thank you, Madam Chairwoman. 

I am delighted to be here. As my written statement reflects, I 

have taught various courses, including White Collar Crime, Securities, and Professional Responsibility, over the years, over 35 years, 

before my retirement. From time to time I also assisted either as 

a lawyer, a consultant or an expert witness in certain big-case litigation, including Big Tobacco—which to a considerable extent was 

driven out of South Carolina by some of our top lawyers, asbestos 

cases the same—but also other cases that affect the public interest, 

such as Dalkon Shield litigation, sexual predators and Catholic 

priests, defective car seats, Benlate fungicide, which cut a wide 

swath among farmers, and so forth. 

From my experience in big complex cases, protective orders are 

very, very common and very overbroad. As my written statement 

reflects, decades ago judges were complaining about the issuance of 

protective orders, and one judge saying on the record he was unaware of any case in the past half-dozen years—and this is 1981— 

of even a modicum of complexity where an umbrella protective 

order was not agreed to. 

I included in my written statement a recent, to update, within 

the last 2 months, order from the Seventh Circuit, a District Court 

order, where you have a magistrate judge complaining about lawyers in that circuit—which has taken the lead in trying to clamp 

down on protective orders—just not doing it, lawyers not following, 

not getting the message. And somebody needs to send a strong 

message. It hasn’t been sent over decades. 

The secrecy selling is of keen interest to me. As you know, we 

have dealt with that in South Carolina. And I would just raise a 

hypothetical, two actually, with you. 

One: Assume that you have a witness to a vicious criminal assault who is a sole witness and the only person whose testimony 

could really convict the wrongdoer. And assume that the perpetrator’s lawyer goes to that witness and says, ‘‘Here is $25,000. I want 

you to take this money. I don’t want you to report to the police. 

I don’t want you to cooperate with the authorities. It didn’t happen.’’ It is just: Wipe it off the map, and here is the money. Go 

spend it. Enjoy it. And assume that that transaction is struck. 

And nobody would have a problem condemning that transaction 

for witness tampering, obstruction of justice, conspiracy, bribery, 

all kinds of heinous things. 

Well, suppose it is a design defect in an automobile. And there, 

after tremendous discovery and a lot of effort, finally the plaintiff 

has figured it out and has come up with the killer documents—the 

key documents, the smoking gun documents. 

And the company, realizing that it is going to get stung and that 

all this is going to come out, goes to the plaintiff and goes to the 

66 

plaintiff’s lawyer and says, ‘‘Here is a million. Here is $3 million. 

We want your file. It didn’t happen. You can’t talk to anybody 

about it. We will—you will owe us liquidated damages if you—you 

are not cooperating with a soul.’’ 

And you might say, ‘‘Well, so what?’’ The deal goes down. The 

settlement is agreed to. The money is exchanged. And you can say, 

‘‘Well, that happens every day. Nothing wrong with that. And it is 

a free country.’’ 

But what has happened in the hypothetical number two is the 

same thing that happened in hypothetical number one: You have 

a victim of serious wrongdoing or a witness to serious wrongdoing 

taking money in exchange for a promise not to cooperate with anybody. And we forget that victims of torts involving health and safety are often witnesses. And for them to take money and have their 

testimony and their ability to cooperate bought off, I say is heinous. 

It is heinous in the criminal case. I say it is heinous in the civil 

case. It is not what we talk about in our ethics courses. It is not 

proper. 

As for some of the complaints, you know, there are theories that 

it is going to take too much time away; it is going to tie up our 

courts in knots. I don’t believe that for a second. I mentioned that 

there is a group, the Lawyers for Civil Justice—Mr. Morrison was 

a—didn’t represent them, but was a former president of that 

group—and they declare it is imperative that this legislation be 

killed; it is bad legislation, and if you pass it other people are going 

to emulate it at the state level. 

Well, if it is bad legislation and it is going to tie our courts in 

knots, there is no risk that anybody is going to follow it. What I 

suggest people are really afraid of is that this starts momentum 

going in favor of truth in our courts. I want to see that. 

Thank you. 

[The prepared statement of Mr. Freeman follows:] 

67 

PREPARED STATEMENT OF JOHN P. FREEMAN


JPF-1.eps
68 


JPF-2.eps
69 


JPF-3.eps
70 


JPF-4.eps
71 


JPF-5.eps
72 


JPF-6.eps
73 


JPF-7.eps
74 

Ms. SA ́ NCHEZ. Thank you, Professor Freeman. We appreciate 

your testimony. 

At this time, I would invite Judge Kravitz to please begin his testimony. 

TESTIMONY OF THE HONORABLE MARK R. KRAVITZ, JUDGE, 

U.S. DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT 

Judge KRAVITZ. Thank you, Madam Chairperson. I am pleased to 

be here on behalf of the Judicial Conference Standing Committee 

and the Civil Rules Committee. 

I just want to give you a little bit about my background, as the 

others have, so you will understand where I am coming from on 

this issue. I practiced for 27 years, and during that period of time 

I worked with protective orders for both plaintiffs and defendants. 

And a large portion of my practice was devoted to representing 

media companies who were trying to intervene in cases and open 

government. And I am proud to say that I have received two 

awards in Connecticut for my efforts at open government and efforts against secrecy in government. And I say that not to be boastful but rather so that you know that I do not have a personal history of secrecy in government at all. 

Yet, the Rules Committee is opposed to this legislation for, I 

think, three very good reasons. 

First, there is no empirical evidence to suggest that protective orders or sealed settlements are substantially used in the Federal 

courts or that there is any abuse. My friend Professor Freeman 

talked about every case having a protective order. We have actually 

dug into the data, and 6 percent of Federal cases have protective 

orders, and sealed settlements are in one half of 1 percent of all 

cases that are solved. 

The Rules Committee actually devotes itself to using empirical 

information, not anecdotal information, and information about the 

Federal courts, not the state courts, to inform the rules process. 

And I would just say, if the committee has empirical information 

that suggests there is a problem to get it to the Rules Committee 

so that it can use that in the context of the rules process. 

Secondly, this is not, with all due respect, Madam Chairperson, 

at least insofar as the protective orders are concerned, a modest 

proposal. What this proposal suggests is that at the start of a case, 

before the judge knows anything about the case, the judge is going 

to have to review the documents, sometimes millions of pages of 

documents that the defendant is going to have to turn over, and 

before those documents have been given to the plaintiff is going to 

have to make a determination as to whether those documents are 

‘‘relevant to public health and safety.’’ 

We are not talking about documents being filed in court. Once 

documents are filed in court, the protective order provisions aren’t 

what govern. It is the Constitution and the substantial body of case 

law that protects open judicial proceedings that govern. So we are 

talking about the exchange of information between parties outside 

of court to get the plaintiff up to speed as to what the facts are. 

And in my experience, both as a judge and a lawyer, the entry 

of a protective order allows litigants to exchange more documents 

75 

at an earlier point in the litigation than would be possible without 

them. 

This legislation will require—the burdens of it really cannot be 

overstated. I am going to have to—I cannot make a determination 

that documents are relevant to public health and safety unless I review those documents. I am going to have to review them without 

the plaintiff having them because this is all before the plaintiff gets 

them. And then I am going to have to make a judgment with no 

help from experts or anything whether they implicate or are relevant to the public health and safety. 

First of all, I don’t think I have the time to do that. And second 

of all, I don’t think I have the knowledge to do that on any reasoned basis. And what we are going to result in is satellite litigation which is going to bog down the discovery. We should be in the 

business of getting Mr. Lanier the documents as quickly as possible, not as slowly as possible and not as expensively as possible. 

And Rule 1 of the Federal Rules says the goal here should be a 

just, speedy and inexpensive determination of the cases. And I believe that this provision on protective orders will disserve that interest. 

And finally, even though it sounds good, these provisions, they 

are unlikely to produce any benefits because the agreements that 

Professor Freeman talked about, they are going to be entered into 

anyway, and they just won’t get filed with courts. Settlements are 

secret not because judges are sealing them. It happens in only .5 

percent of all cases. Settlements are secret because the parties 

themselves are agreeing to secrecy orders. So the benefits that this 

act is designed to achieve, I am afraid, and the Rules Committee 

is afraid, won’t be achieved. 

Thank you, Madam Chairperson. 

[The prepared statement of Judge Kravitz follows:] 

76 

*See Appendix for attachments to the prepared statement of this witness. 

PREPARED STATEMENT OF THE HONORABLE MARK R. KRAVITZ* 


RMRK-1.eps
77 


RMRK-2.eps
78 


RMRK-3.eps
79 


RMRK-4.eps
80 


RMRK-5.eps
81 


RMRK-6.eps
82 


RMRK-7.eps
83 


RMRK-8.eps
84 


RMRK-9.eps
85 


RMRK-10.eps
86 


RMRK-11.eps
87 


RMRK-12.eps
88 


RMRK-13.eps
89 

Ms. SA ́ NCHEZ. Thank you. I appreciate your testimony, Judge 

Kravitz. 

And at this time, I would invite Judge Anderson to please 

present his testimony. 

TESTIMONY OF THE HONORABLE JOSEPH F. ANDERSON, JR., 

JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF SOUTH 

CAROLINA 

Judge ANDERSON. Thank you, Chairwoman Sa ́nchez, Ranking 

Member Cannon, and Members of the Subcommittee. Thank you 

for inviting me to appear before you to discuss the Sunshine in 

Litigation subject, of particular importance to me as a trial judge 

with 22 years experience. 

I should say at the outset that I am not here representing the 

Judicial Conference or any other organization. I am here simply to 

convey my thoughts on the need for the awareness of the adverse 

consequences of what I prefer to call ‘‘court-ordered secrecy.’’ 

As civil litigation has mushroomed in the United States courts 

in the past two decades, litigants have frequently requested that 

judges ‘‘approve’’ a settlement, often in cases where court approval 

is not legally required. And as part of the approval process, judges 

are sometimes asked to enter orders restricting public access to information about the case and its procedural history. 

In these instances, litigants are not content to simply agree between themselves to remain silent as to the settlement terms. Instead, their preference is to involve the trial court in a ‘‘take it or 

leave it’’ consent order that brings to bear the contempt sanctions 

of the court to anyone who breaches the court-ordered confidentiality. 

Unfortunately, trial judges often struggle under the crush of burgeoning case loads. 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 in the demands for courtordered secrecy. 

In late 2002, the judges on the District Court of South Carolina 

voted unanimously to adopt a local rule for our court which places 

some modest restrictions on court-ordered secrecy associated with 

settlements in civil cases. We were then, and we remain, the only 

Federal district court in the country with such a rule. 

In the brief time allotted to me, I would like to relate several 

events which prompted me to propose this rule to our court and say 

just a word about our court’s 6-year experience in operating under 

the rule. 

In 1986 when I was a 36-year-old baby judge, I was assigned a 

case that had been pending on another judge’s docket for several 

years. The case was ready for trial, and the lawyers predicted a 

grueling 6-month trial. It was brought by 350 plaintiffs who lived 

around a large 56,000-acre freshwater lake in upstate South Carolina. The plaintiffs contended that the defendant had knowingly deposited excessive amounts of PCBs into the lake, and that they had 

experienced severe health problems associated with being exposed 

to this toxic substance. 

Much to my relief, shortly before the trial was to begin, the parties announced that they had reached an amicable settlement. The 

90 

defendant would pay three-and-a-half million dollars into a fund to 

be set up to provide primary medical monitoring and care for the 

350 plaintiffs, and then there was a small amount of a per capita 

distribution to each of the plaintiffs to settle the case. 

There was one catch, however: The settlement was absolutely 

contingent upon my entry of a gag order prohibiting the parties 

from ever discussing the case with anyone and also requiring the 

return of all allegedly ‘‘smoking gun’’ documents. I was advised by 

counsel for both sides that if I did not go along with their request, 

the carefully constructed compromise settlement would disintegrate, and the case would proceed to the 6-month trial. 

As a judge with less than a year’s experience on the court and 

other complex cases stacking up on my docket, and believing it was 

the fairest and best thing do in the case, I agreed to the request 

for court-ordered secrecy. When I signed the order, everyone was 

content: The plaintiffs had a handsome settlement; the lawyers for 

both sides were paid; the defendant received its court-ordered secrecy; there were no objections to my order; and I had one less case 

to try. 

In the ensuing years, I began to question my decision to enter 

a protective order in that particular case. Other people lived 

around that lake and were exposed to the same substance. I saw 

lawyers request the court order secrecy both at settlement and in 

connection with the exchange of documents during discovery. 

Just to take another example, I knew of a case on our docket of 

another judge who restricted information to case information about 

a go-cart which was allegedly defective and which was settled for 

one-and-a-half million dollars. Again, a court ordered gag order secrecy; the plaintiff’s lawyer was restricted from discussing the case 

or even representing another litigant involving that same go-cart, 

which I later learned was still being marketed to the public. 

These are just two instances, nothing anecdotal about them— 

people live around the lake; children ride those go-carts—where the 

judge had lit the lightning match through the appellate court system through an order restricting information about those hazards. 

Responding to this series of events, I proposed to our court that 

we adopt a local rule prohibiting, in most civil cases, court-sanctioned secret settlements. When we proposed our rule for comment, 

we received heated objections from around the country. There were 

dire predictions that our court would be overwhelmed with the 

number of cases that went to trial as a result of our rule restricting 

court-ordered secrecy. 

Well, after 6 years, the dire predictions have appeared to be 

wrong. Our case has actually tried fewer cases in the 6 years following the enactment of our local rule than it did in the 6 years 

preceding the enactment of our rule. 

Of the national furor that was created when our rule was proposed at least brought this attention to the forefront. I think judges 

are now more aware of the adverse consequences of court-ordered 

secrecy. This legislation has served to further that interest and 

raise the consciousness of judges on this very important topic. 

Thank you very much. 

[The prepared statement of Judge Anderson follows:] 

91 

PREPARED STATEMENT OF THE HONORABLE JOSEPH F. ANDERSON, JR. 


JFA-1.eps
92 


JFA-2.eps
93 


JFA-3.eps
94 


JFA-4.eps
95 


JFA-5.eps
96 


JFA-6.eps
97 

Ms. SA ́ NCHEZ. Thank you, Judge Anderson. We appreciate your 

testimony. 

We will now begin the first round of questioning. And I will 

begin by recognizing myself. 

Mr. Meadow, I would like to start with you. Some critics of the 

Sunshine in Litigation Act say that there is no empirical evidence 

establishing that court secrecy orders endanger public health and 

safety, that proponents of this act are simply relying on anecdotal 

evidence alone. How would you respond to that criticism? 

Mr. MEADOW. Based on my experience, the litigations that we 

are involved in are mass torts affecting—each drug we are involved 

in is affecting thousands and thousands of people. So if they come 

up and say it is only 6 percent, that one—maybe 1 percent of that 

can involve tens of thousands of people. So any time we discover 

a dirty document or something like that, it is going to affect thousands and thousands of people. 

So I think the overall public policy speaks to a favorable climate 

for this act vs. the small—I haven’t seen the empirical data. But 

in my personal experience from the litigations I am involved in, 

you are talking about tens of thousands of people who are affected 

by one protective order. 

Ms. SA ́ NCHEZ. Thank you. 

Professor Freeman, why do you believe, as you state in your prepared statement, that judges can’t be counted on to address the 

problem of court secrecy? 

Mr. FREEMAN. Because it is ubiquitous and because nothing 

seems to be happening. I didn’t say that all Federal cases have protective orders. I said in—— 

Ms. SA ́ NCHEZ. Many. 

Mr. FREEMAN [continuing]. Quoting a judge, cases with complexity are what we are talking about here. And there the protective orders are very, very common, and secrecy agreements are 

very common. And as I read the legislation, it deals not just with 

the approval of secret settlements, essentially to cover up evidence, 

but also the enforcement of secret settlements, which to me is important. 

But, you know, I would refer you to this order that was issued 

by the magistrate within the last 60 days in a circuit where the 

judges led by Judge Posner and Judge Easterbrook have really 

sought to crack down on overbroad protective orders. And that was 

a 1999 decision that led the way with follow-up decisions—1999, 

we know, now is—what?—9 years ago. And this is within the last 

60 days the judge saying, ‘‘You know, I—in this case, the magistrate judge entered a directive to the lawyers in the case saying, 

‘‘Don’t you come to me and ask for a protective order unless it 

meets the following standards, one through whatever.’’ And then he 

didn’t get that. And that is why he wrote that order. 

And, you know, people have been talking a long time, but where 

is the beef? Where is the actual output that protects—that promises to protect—the public on matters of limited nature, health and 

safety in particular? It is time to do something because it just 

hasn’t happened yet. 

Ms. SA ́ NCHEZ. Thank you. 

98 

We know that plaintiffs sometimes, and maybe oftentimes, agree 

to these various types of confidentiality orders covered by the Sunshine in Litigation Act. And one example of that would be a protective order prohibiting the disclosure of discovery materials or an 

order sealing a settlement agreement. 

Why do lawyers who represent plaintiffs agree to such orders 

even though they may be contrary to the public interest? 

Mr. FREEMAN. For the money—for themselves and for their clients. This is about selling secrecy, and secrecy is a very, very valuable commodity it turns out, particularly when there is something 

very wrong that needs to be covered up. 

A company that has tremendous exposure, say running to the billions, can be very happy to pay the plaintiff and the lawyer who 

have figured out—gotten the smoking gun documents under a protective order, can’t disclose them to anybody—got them, and now 

the company is faced with the possibility of the truth coming out, 

and being picked up on the Internet, being picked up on the news. 

It becomes a very simple transaction to buy that evidence and pay 

these people off. 

And the lawyer, you can say, ‘‘Well, that is crooked on the part 

of the lawyer.’’ But the problem is for the lawyer, the lawyer’s job 

is to protect the client and do the very best for the client. The lawyer doesn’t see himself or herself as representing society as a 

whole. So that skews the transaction. 

Legislation that came in and inserted the public interest into the 

calculation would be excellent. 

Ms. SA ́ NCHEZ. Thank you. 

Judge Anderson, you noted in your prepared statement that the 

local rule adopted by the district in which you sit as a judge has 

not inhibited settlement or increased the judges’ workload. That 

rule, as I understand it, addresses only sealed, court-filed settlement agreements. 

The Sunshine in Litigation Act goes a little bit further than that. 

It also covers, among other things, protective orders. And I am 

wondering if you believe that the provisions of the act would, as 

some critics have claimed, inhibit settlement or significantly increase the workload of our courts, if that. 

Judge ANDERSON. I don’t think it would inhibit settlement. It 

would increase the workload of the district judge. I do think we 

could count on the litigants to point out to us what is confidential, 

or what is arguably confidential. So it would increase our workload 

to some extent, but we could handle it. 

Ms. SA ́ NCHEZ. Thank you. 

My time has expired. So at this time I would recognize the Ranking Member for his 5 minutes to question. 

Mr. CANNON. Thank you, Madam Chair. Do you intend to do a 

second round? I personally don’t see a need, but. 

Ms. SA ́ NCHEZ. I do have probably another question or two that 

I would like to ask. And given that there are not many of us here, 

I don’t think that it would be overburdensome to go through a second round of questions. 

Mr. CANNON. I don’t think it would be overburdensome at all. I 

don’t know how we move this issue forward, though, because it is 

not going to be in our jurisdiction, it appears to me. 

99 

But Mr. Kravitz, you seem to have had a response to what Mr. 

Anderson said about the parties. I suspect you are thinking in 

terms of the parties, plural, because—— 

Judge KRAVITZ. Well, we won’t have parties. I mean, the idea is 

this is all before Mr. Lanier and Mr. Meadow have the documents. 

So I am going to have to review them presumably under seal with 

no expertise at all with the defendants trying to convince me that 

it doesn’t involve the public health and safety. 

We are far better served by getting Mr. Meadow the documents 

and then having him tell me where the smoking guns are, and having him tell me that public health and safety is implicated. And so, 

no, we are not going to have the parties, because he won’t have the 

documents before I decide what the confidential agreement is, and 

whether the statute is met. 

And I will say in this regard, I am unsure. I—you know, we have 

heard it is only a problem in complex cases. But this statute applies to all cases. So in every single case—so if I have a case that 

involves a person, an employment case where a person was allegedly fired for having child pornography at work. Is that a case that 

has relevance to public health and safety? I mean, I am going to 

have to go through these questions on each one of my cases, not 

just the complex drug cases. 

Mr. CANNON. I—what you say, since we have a couple of judges 

here, that I am astonished at how hard it is to be a judge, and I 

appreciate your work. And I don’t see much reason to make it more 

difficult. 

Judge Anderson, can I just follow up on this and add, ask this 

question: You said that your district has done a modest rule. In 

fact, under the current rules, no judge ever has to sign one of these 

agreements. You have talked about the pressure that he is under 

with his docket. 

But aren’t we—why do we have to have this rule, taken out of 

order, passed by Congress instead of going through the normal rule 

enabling process, to do something that judges already pretty much 

have discretion and are able to do? 

Judge ANDERSON. And that is the best question that could be 

asked on this subject. We judges have life tenure, and why do we 

need some rule to hide behind on protective orders? 

My answer is: We judges have to work very hard to stay current. 

We, in my district, we are assigned between five and six hundred 

cases per year. But we have to close out between two and three 

cases each working day to stay current. 

So when the parties walk in with a settlement that they have 

worked out together and it provides for some payment of money, 

it is awfully difficult for the judge to say, ‘‘Well, I am going to 

stand in the way of that settlement. I am not going to approve it. 

We are going to trial.’’ And the plaintiffs might lose at trial, and 

then the judge has impaired a compromise settlement that was 

worked out legitimately just in the court. 

Mr. CANNON. Right. And that is a great answer. And part of the 

reason I am so anxious to give honor to the judiciary—you guys do 

a great job. These are very hard things. But isn’t the answer to 

that to step back as a society and say we need more judges, or address the issue in some other way? 

100 

Because you didn’t deal with the issue of: Do you have discretion? Clearly your court, your district, has taken upon itself an additional set of guidelines. And while they are modest compared to 

this bill, each individual judge has a great deal of latitude. 

Shouldn’t we be looking—and this is why it is inappropriate for 

this Subcommittee, because we are not the Subcommittee that 

deals with courts. And I have been on that—in fact I am on the 

other Subcommittee. We deal with this issue all the time. Isn’t that 

the place where we say, ‘‘How do we want to administer justice in 

America? Do we need more judges? What is taking time? What are 

our judges not doing?’’ 

And if our judges are not doing their—the job that you would like 

them to do based on your testimony, which is to be looking more 

carefully at these kinds of cases because someone may be impaired 

in the future, that the plaintiff may be impaired because he doesn’t 

get his settlement, or otherwise. Shouldn’t we be looking, then, at 

some other solution rather than a rule that we legislate instead of 

taking through the rules process? 

Judge ANDERSON. Well, I am a big fan of the rules making process. And I will say we judges work very hard. But I join the bandwagon for more judges. I take a briefcase home every weekend to 

read for the next week. 

Mr. CANNON. I will say that—and I know many, many Federal 

judges and state judges—that they work amazingly hard. And I 

don’t want to make it more difficult by going out of order—regular 

order of the rules, regular order on our Committee—and do something that I just don’t see a compelling reason for doing, especially 

when you have got judges like in your district, Judge Anderson, 

and who generally, who don’t—without the support of your rule, 

judges around the country have, I think, have the same kind of discretion that this allows. They do have, I grant you, the kind of 

pressures. And maybe we ought to look at that. 

And, the light—I see the time is running out. 

Ms. SA ́ NCHEZ. The gentleman’s time has expired. 

And I would just also remind the Members of the Committee 

that the full Committee has jurisdiction over such issues, and they 

referred it to this Subcommittee. So it is proper for us to consider 

it here today. 

I am going to just go into a second round of questions. I have a 

few last questions, and hopefully we will conclude the hearing fairly soon so that you gentlemen can get back to what you do in your 

normal, everyday lives. 

I want to start with Judge Kravitz. In your prepared statement, 

you say that the Sunshine in Litigation Act would, and I am 

quoting from your testimony, ‘‘effectively amend the Federal Rules 

of Civil Procedure outside the rulemaking process, contrary to the 

Rules Enabling Act.’’ And you add that ‘‘direct amendment of the 

Federal Rules through legislation circumvents the careful safeguards Congress itself has established.’’ 

But isn’t it true that the act wouldn’t actually amend the Federal 

Rules, but instead it would amend Title 28 of the United States 

Code? 

101 

Judge KRAVITZ. Well, technically it does. But it says that a court 

shall not enter an order under Rule 26(c) of the Federal Rules of 

Civil Procedure. That is what the act says. 

So what it is doing is, in effect, amending the Rules of Civil Procedure and saying that a court cannot enter the order that is otherwise provided unless they make these findings. 

And the Rules Enabling Act process is an exacting and thorough 

process, as I know Judge Anderson understands. There are—it is 

also transparent, completely transparent. We publish these rules 

for comment; we have—and for these rules, we had three hearings 

nationwide—— 

Ms. SA ́ NCHEZ. I understand that. 

Judge KRAVITZ [continuing]. People testify. 

Ms. SA ́ NCHEZ. I understand that. But I am just trying to get at 

the authority issue here because I want to make it clear for the 

record. It isn’t the position of the Judicial Conference, is it, that 

Congress lacks the authority to legislate with respect to matters 

covered by the Sunshine in Litigation Act? 

Judge KRAVITZ. No, no. No, no. 

Ms. SA ́ NCHEZ. Okay. 

Judge KRAVITZ. No. The idea is that there is a Rules Enabling 

Act process that Congress put together. It has worked extremely 

well. And the rules that come out of that process are very, very 

good, and they are based on empirical data, not stories from my 

courtroom. And—— 

Ms. SA ́ NCHEZ. I want to draw your attention to—— 

Judge KRAVITZ [continuing]. It is the—— 

Ms. SA ́ NCHEZ [continuing]. Something that Judge Abner Mikva 

has said, that the Sunshine in Litigation legislation involves, and 

I am quoting from him, ‘‘policy issues that should be decided by 

policymakers in Congress, not by judges.’’ 

And my question is: Why should Congress defer to the Judicial 

Conference if the Judicial Conference has, by its inaction, acted inconsistently with what Congress believes to be a fundamental mandate of good public policy, which is trying to protect the health and 

welfare of other potential victims who will never have this information come to light because of these secrecy orders? 

Judge KRAVITZ. Well, listen, the Congress obviously has the 

power to pass legislation—it is not that. It is just that Congress established a very orderly and sensible process for coming up with 

rules of civil procedure and criminal procedure. That process has 

worked extremely well for the last 70 years on a variety of topics, 

many of which have policy implications to them. 

And this is a way of short-circuiting that process—not getting the 

empirical information, not having input from a wide spectrum of 

professors and others. And so that is why I think the Judicial Conference is so adamant about the fact that this process has just 

worked so extremely well that—— 

Ms. SA ́ NCHEZ. I understand that. But we also do have processes 

in Congress by which receive testimony; we get experts to send testimony; we get to question witnesses, much like what is happening 

today. And, you know, there are—legitimately, if there is a perceived lack of movement in an area in which Congress has a fundamental policy interest in looking after—— 

102 

Judge KRAVITZ. I can’t disagree with you. All I can say, though, 

is I would like to see the empirical information about how often 

protective orders that have been entered in connection with discovery. I am not talking about sealed settlements that have actually ended up, in Federal court, ended up with a health and safety 

issue. We have looked at that issue carefully, and it is not there. 

Ms. SA ́ NCHEZ. Let me ask you this, Judge Kravitz. Although it 

is perhaps that the number of them is not huge, or gross of the 

overall docket, would you agree with Mr. Meadow, though, that the 

potential people that are affected by just one could be in the tens 

of thousands if not hundreds of thousands? 

Judge KRAVITZ. I would like to hear that information. We found 

that protective—— 

Ms. SA ́ NCHEZ. But what about the fact that Mr. Meadow can’t 

provide it because there are all these secrecy agreements that hide 

the number of people that have been impacted? 

Judge KRAVITZ. I will say that that was very dramatic. But I 

gather that—I would venture to say that Mr. Meadow actually filed 

pleadings in court. And those pleadings in court are subject to the 

constitutional right of public access. And Mr. Meadow, I am sure, 

makes very strong arguments in court in those public documents 

about the health and safety in the conduct of defendants. So—and 

you, the Congress and other people, can get copies of those pleadings. 

I talked to Mr. Meadow—his Vioxx cases were in state court; 

they weren’t in Federal court. We are talking about the Federal 

rules. And I just think we need to look carefully at what has actually happened in Federal court, not in state court, and see if there 

is a problem. And if it is a problem, we will deal with it. 

Ms. SA ́ NCHEZ. I understand. 

But the question, more specifically, was—leaving aside state 

cases—was to talk about Federal cases in which there is an interest in potential effects to other plaintiffs. Do you or do you not 

agree that a plaintiff who has been injured, or even killed, because 

of the negligence or the fault of another, keeping that information 

secret does have the potential to impact tens of thousands of people? 

Judge KRAVITZ. It does. But I think we have to distinguish between during the course of discovery before trial or settlement and 

at the end of the case. And what I am saying is, the provisions here 

about the course of discovery are going to slow down things and not 

get Mr. Meadow the information he needs. 

Now, if at the end of the case he believes that—well, first of all, 

if it is tried, it is all open to the public. If it is settled, and not he 

but somebody else wants access to that information, they have an 

ability to come to the courts. 

And courts do modify orders; courts do vacate orders. In the 

Wyeth case dealing with the vaccines, the court vacated the order 

and allowed that information to go to public authority. But that is 

the end of the case, after we have gotten Mr. Meadow the information that he wants. And I thinks that is the real—but that this 

order requires it during the discovery process. 

Ms. SA ́ NCHEZ. I understand that distinction that you are making. 

103 

Mr. Meadow, would you care to respond to that? Or I also have 

another question I would like to ask. 

Mr. MEADOW. No, absolutely. The judge is right that when we 

file a complaint, it is public; it is a public document; you can go 

down to the courthouse and read it. But these complaints are mere 

allegations of what we think a company has done wrong. We don’t 

have any specific information. It is not until we get the actual documents. 

And, normally, after we file a complaint, it could be months before we get any documents because we spent the first 6 months negotiating for a protective order and for confidentiality. And when 

we finally get the confidentiality order, and we start getting the 

documents, those documents are redacted. And we have to fight yet 

again. The defendants who are going over these documents, and 

they are normally multi-billion-dollar corporations, usually turn on 

six to seven law firms to review the documents. So they have already been gone through. 

And this legislation places the burden of whoever seeks the protective order on that who is seeking the order. So the defendants 

know what documents are affected by the protective order. 

So the complaint, I don’t think—I think it is a red herring in this 

because it is bare-bones, and nobody goes down and reads our complaints. You know, the press may pick it up, and then the company 

denies all allegations and says they are all false anyway. So until 

we get a protective order in place, we can’t see the documents. And 

then we have a second go-around with those documents. 

Ms. SA ́ NCHEZ. Thank you, Mr. Meadow. 

My time has expired. I would now recognize Mr. Cannon for 5 

minutes. 

Mr. CANNON. Thank you, Mr. Kravitz. Did you want to respond 

to Mr. Meadow’s comments? 

Judge KRAVITZ. Well, I just—can I just give you—I have talked 

about anecdotal information, so I shouldn’t do it. But here is a case 

I just tried about a year ago: The plaintiff alleged that the brakes 

on the truck were defective. The defendant alleged that the driver 

was drunk and asleep at the time of the truck accident, which 

killed two people. 

Truckloads of information was given to the plaintiff under the 

form of a protective order, during the course of which we got the 

plaintiff’s new information; there were experts on both sides. It was 

tried to a jury. The jury found that the driver was asleep and 

drunk and that the brakes were fine. 

Now, that is—we know that at the end of the case. Now, tell me, 

at the beginning of this case, when the requests for information 

about the brakes were coming, is that a case that is relevant to 

public health and safety or not? I just don’t know how I am going 

to decide that information in those cases. And you can go on and 

on about the scenarios. 

So all I am saying is I think that there is—judges have the ability to modify orders, and they do. Judges have the ability at the 

end of the case to allow information that has been subject to a confidentiality agreement to get out to the public, so that if the brakes 

were found to be defective by the jury, and somebody else wanted 

104 

this information, they could get it. Of course, this all came out at 

a public trial of that case. 

So I just think we—I would urge the Committee to just kind of 

look at the sealed settlement provisions differently from the discovery proceedings. And we do not need to impose further burdens 

and costs on litigants in the course of discovery; there is already 

plenty of them. And I do believe that this would impose significant 

costs, and it will result in Mr. Meadow not getting his documents 

any time soon. 

Mr. CANNON. Thank you. 

You know, these are complicated issues. And sitting on both this 

Committee and the Committee on Intellectual Property and the 

Courts, it is—let me just give you one little experience. I sat on 

that Committee for 6 years with Barney Frank. Now, Barney 

Frank and I are on the opposite sides of the political spectrum. But 

after 6 years, he left the Committee to be, I think, the Ranking 

Member on Financial Services. But we had a little chat, and it occurred to us—or to me, at least—that we had sat on that Committee and disagreed on many things but had never once disagreed 

about judicial oversight and economy. 

And we have in place here a system that allows for the development of rules in an open and public fashion where all thoughts can 

be weighed. And that system was—actually I agree with you, Mr. 

Kravitz—that has worked for a long time. In fact, I was just thinking how long I have been involved as a lawyer, and it tracks back 

quite a ways. And it has worked well, and I have followed it closely. 

On the other hand, we in Congress have some pretty dramatic 

authority. We, for instance, can get from you, outside of your agreement system that is, the content of the information that you can’t 

disclose to us because we are Congress, and we are not constrained 

by those agreements. There are some limitations, and we have to 

work through those. But we have great powers. 

And those great powers, I think, we need to use very thoughtfully, very carefully, especially when society is changing as rapidly 

as it is right now. We need to maintain, in some ways, continuity. 

And so in the regular order of developing a rule, things happen 

that make sense. And in the regular order of this Congress, things 

happen we hope that make sense. 

And going out of regular order, it is true that the full Committee 

can’t actually mark this bill up now. But this Subcommittee, I don’t 

believe, can mark this bill up, and I am not—I don’t believe that 

this testimony is even going to be relevant when we get to a full 

Committee markup if it goes that far. 

There is a good reason for having these kinds of regular order. 

And it just seems to me that there is nothing that has been said 

here at this hearing that compels anything, any activity, by this 

Committee or by the full Committee. 

I am very impressed with Judge Anderson’s comments about 

what they have done and what he has done in his—the other 

judges in his district have done. That makes enormous sense. 

I think that there is agreement by the panel that judges have a 

lot of latitude, and I don’t think anyone would disagree with Judge 

Kravitz that orders can be changed. I don’t think anybody would 

105 

disagree with Judge Kravitz that after a trial has happened that 

that is a different environment and that this rule would create burdens before you can get to that open a trial. 

And, in fact, I believe that the greatest benefit that most plaintiffs really ultimately have is the threat of the trial that the defendants will have to defend. And going through that process may 

mean that the brakes are determined not to be defective. And, 

therefore, there are classes of people that could emerge to sue won’t 

be empowered. But on the other hand, it means that you have gotten a decision in a public, open fashion, and that leaves a very 

small number of cases where you might have a settlement agreement. 

And I think we have heard great insight on that process. I don’t 

think that insight leads us to change the ordinary course and create by legislation a new rule. I think it makes it, gives a basis for 

thinking about how these things should go. And I think it creates 

a basis for other districts to look at what your district has done, 

Judge Anderson, and say, ‘‘Do we want to do the same kind of 

thing?’’ 

I think that these are very powerful ideas, but they are not ideas 

that should motivate this Congress or any other to do a bill that 

would change by legislative fiat rules that have grown in an organic, open and public fashion. 

And so, Madam Chair, my time is—— 

Ms. SA ́ NCHEZ. Would the gentleman yield? 

Mr. CANNON. Certainly. 

Ms. SA ́ NCHEZ. Just because Judge Kravitz seems to be so interested in empirical information, I would ask—and we will submit 

written questions as well, which I will go over shortly—but I would 

be interested to know just how many times judicial orders are actually changed regarding these confidentiality agreements. So if you 

have that information, we will allow you to submit that. 

Judge KRAVITZ. It actually is, if you read the study on protective 

orders that is part of attached to my testimony, there are statistics—I don’t have them at my hand—— 

Ms. SA ́ NCHEZ. Okay. 

Judge KRAVITZ [continuing]. On modifications and which orders 

come through stipulations—— 

Ms. SA ́ NCHEZ. Because I would suspect—and this is just speculation on my part, of course, until I receive the information—that it 

is probably not very often that that occurs. 

Judge KRAVITZ. I don’t know that you are right about that. 

But let me just say, too, I said in 6 percent of all cases where 

a protective order, in only 9 percent of that 6 percent involves personal injury. I mean, the vast number involves things that have 

nothing to do with personal injury. 

So we could look at the—but I, my recollection was that there 

was information on there. And, actually, only 50 percent—50 percent—of those protective orders were actually stipulated. Most of 

them were litigated, and then there was a decision by a judge 

about them as to whether or not to have them. 

Mr. CANNON. In reclaiming my time, let me just point out that 

you would expect a very small number of these orders would be reviewed, but they get reviewed when there is a serious issue. And 

106 

a judge, he gets paid—not enough, by the way; although we did increase that, and I—— 

Ms. SA ́ NCHEZ. We have attempted, have attempted—— [Laughter.] 

Mr. CANNON. We ought to grab it on anything that will go. 

At least we have done our work on our side, I believe. And hopefully the Senate can actually do something before they are out. 

But the whole point here is that Federal judges are in a position 

of stature—and not adequately paid, but hopefully better paid in 

the future—to make these kinds of decisions about what is important and what kind of rules and what kind of rulings that they 

have issued should be changed. 

And so I am not sure that the number is so important as compared to the fact that it is done by men of judgment and women 

of judgment when it is reasonably required. And I think that you 

are going to find that the bench is competent. And, therefore, the 

orders, the changes on those rulings are going to be appropriate, 

and not that the number is significant but the action by judges, I 

think, that you will find to be appropriate. 

Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. That remains to be seen. 

We want to thank all of the witnesses for their testimony today. 

Without objection, Members will have 5 legislative days to submit any additional written questions—I told you I would tell you 

about that—which we will forward to the witnesses and ask that 

you answer as promptly as you can so that they can be made a part 

of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any additional materials as well. 

Again, I want to thank everyone for their patience. And I wish 

everyone a safe and productive August work period. 

And this hearing of the Subcommittee of Commercial and Administrative Law is now adjourned. 

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.] 

(107) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

108 

ATTACHMENTS TO THE PREPARED STATEMENT OF THE HONORABLE MARK R. KRAVITZ, 

JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

ATTACHMENT 1 


MRKA-1.eps
109 


MRKA-2.eps
110 


MRKA-3.eps
111 


MRKA-4.eps
112 


MRKA-5.eps
113 


MRKA-6.eps
114 


MRKA-7.eps
115 


MRKA-8.eps
116 


MRKA-9.eps
117 


MRKA-10.eps
118 


MRKA-11.eps
119 


MRKA-12.eps
120 


MRKA-13.eps
121 


MRKA-14.eps
122 


MRKA-15.eps
123 


MRKA-16.eps
124 


MRKA-17.eps
125 


MRKA-18.eps
126 


MRKA-19.eps
127 


MRKA-20.eps
128 


MRKA-21.eps
129 


MRKA-22.eps
130 

ATTACHMENT 2 


MRKA-23.eps
131 


MRKA-25.eps
132 


MRKA-27.eps
133 


MRKA-29.eps
134 


MRKA-30.eps
135 


MRKA-31.eps
136 


MRKA-32.eps
137 


MRKA-33.eps
138 


MRKA-34.eps
139 


MRKA-35.eps
140 


MRKA-36.eps
141 


MRKA-37.eps
142 


MRKA-38.eps
143 


MRKA-39.eps
144 


MRKA-40.eps
145 


MRKA-41.eps
146 


MRKA-43.eps
147 


MRKA-44.eps
148 


MRKA-45.eps
149 


MRKA-46.eps
150 


MRKA-47.eps
151 


MRKA-48.eps
152 


MRKA-49.eps
153 


MRKA-50.eps
154 


MRKA-51.eps
155 


MRKA-52.eps
156 


MRKA-53.eps
157 


MRKA-54.eps
158 


MRKA-55.eps
159 


MRKA-56.eps
160 


MRKA-57.eps
161 


MRKA-58.eps
162 


MRKA-59.eps
163 


MRKA-60.eps
164 


MRKA-61.eps
165 


MRKA-62.eps
166 


MRKA-63.eps
167 


MRKA-64.eps
168 


MRKA-65.eps
169 


MRKA-66.eps
170 


MRKA-67.eps
171 


MRKA-68.eps
172 


MRKA-69.eps
173 


MRKA-71.eps
174 


MRKA-72.eps
175 


MRKA-73.eps
176 


MRKA-74.eps
177 


MRKA-75.eps
178 


MRKA-76.eps
179 


MRKA-77.eps
180 


MRKA-78.eps
181 


MRKA-79.eps
182 


MRKA-80.eps
183 


MRKA-81.eps
184 


MRKA-82.eps
185 


MRKA-83.eps
186 


MRKA-84.eps
187 


MRKA-85.eps
188 


MRKA-86.eps
189 


MRKA-87.eps
190 


MRKA-88.eps
191 


MRKA-89.eps
192 


MRKA-90.eps
193 


MRKA-91.eps
194 


MRKA-92.eps
195 


MRKA-93.eps
196 


MRKA-94.eps
197 


MRKA-95.eps
198 


MRKA-96.eps
199 


MRKA-97.eps
200 


MRKA-98.eps
201 


MRKA-99.eps
202 


MRKA-100.eps
203 


MRKA-101.eps
204 


MRKA-102.eps
205 


MRKA-103.eps
206 


MRKA-104.eps
207 


MRKA-105.eps
208 


MRKA-106.eps
209 


MRKA-107.eps
210 


MRKA-108.eps
211 


MRKA-109.eps
212 


MRKA-110.eps
213 


MRKA-111.eps
214 


MRKA-112.eps
215 


MRKA-113.eps
216 


MRKA-114.eps
217 


MRKA-115.eps
218 


MRKA-116.eps
219 


MRKA-117.eps
220 


MRKA-118.eps
221 


MRKA-119.eps
222 


MRKA-120.eps
223 


MRKA-121.eps
224 


MRKA-122.eps
225 


MRKA-123.eps
226 


MRKA-124.eps
227 


MRKA-125.eps
228 


MRKA-126.eps
229 


MRKA-127.eps
230 


MRKA-128.eps
231 


MRKA-129.eps
232 


MRKA-130.eps
233 


MRKA-131.eps
234 


MRKA-132.eps
235 


MRKA-133.eps
236 


MRKA-134.eps
237 


MRKA-135.eps
238 


MRKA-136.eps
239 


MRKA-137.eps
240 


MRKA-138.eps
241 


MRKA-139.eps
242 


MRKA-140.eps
243 


MRKA-141.eps
244 


MRKA-142.eps
245 


MRKA-143.eps
246 


MRKA-144.eps
247 


MRKA-145.eps
248 


MRKA-146.eps
249 


MRKA-147.eps
250 


MRKA-148.eps
251 


MRKA-149.eps
252 


MRKA-150.eps
253 


MRKA-151.eps
254 


MRKA-152.eps
255 


MRKA-153.eps
256 


MRKA-154.eps
257 


MRKA-155.eps
258 


MRKA-156.eps
259 


MRKA-157.eps
260 


MRKA-158.eps
261 


MRKA-159.eps
262 


MRKA-160.eps
263 


MRKA-161.eps
264 


MRKA-162.eps
265 


MRKA-163.eps
266 


MRKA-164.eps
267 


MRKA-165.eps
268 


MRKA-166.eps
269 


MRKA-167.eps
270 


MRKA-168.eps
271 


MRKA-169.eps
272 


MRKA-170.eps
273 


MRKA-171.eps
274 


MRKA-172.eps
275 


MRKA-173.eps
276 


MRKA-174.eps
277 


MRKA-175.eps
278 


MRKA-176.eps
279 


MRKA-177.eps
280 


MRKA-178.eps
281 


MRKA-179.eps
282 


MRKA-180.eps
283 


MRKA-181.eps
284 


MRKA-182.eps
285 


MRKA-183.eps
286 


MRKA-184.eps
287 


MRKA-185.eps
288 


MRKA-186.eps
289 


MRKA-187.eps
290 


MRKA-188.eps
291 


MRKA-189.eps
292 


MRKA-190.eps
293 


MRKA-191.eps
294 


MRKA-192.eps
295 


MRKA-193.eps
296 


MRKA-194.eps
297 

ATTACHMENT 3 


MRKA-195.eps
298 


MRKA-196.eps
299 


MRKA-197.eps
300 


MRKA-198.eps
301 


MRKA-199.eps
302 


MRKA-200.eps
303 


MRKA-201.eps
304 


MRKA-202.eps
305 


MRKA-203.eps
306 


MRKA-204.eps
307 


MRKA-205.eps
308 


MRKA-206.eps
309 


MRKA-207.eps
310 


MRKA-208.eps
311 


MRKA-209.eps
312 


MRKA-210.eps
313 


MRKA-211.eps
314 


MRKA-212.eps
315 


MRKA-213.eps
316 


MRKA-214.eps
317 


MRKA-215.eps
318 


MRKA-216.eps
319 


MRKA-217.eps
320 

f 


MRKA-218.eps
321 

ANSWERS TO POST-HEARING QUESTIONS FROM RICHARD D. MEADOW, 

THE LANIER LAW FIRM, PLLC 


9-1.eps
322 

f 


9-2.eps
323 

ANSWERS TO POST-HEARING QUESTIONS FROM JOHN P. FREEMAN, DISTINGUISHED

PROFESSOR EMERITUS, UNIVERSITY OF SOUTH CAROLINA LAW SCHOOL

f 


8.eps
324 

ANSWERS TO POST-HEARING QUESTIONS FROM THE HONORABLE MARK R. KRAVITZ, 

JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT


10-1.eps
325 


10-2.eps
326 

f 


10-3.eps
327 

ANSWERS TO POST-HEARING QUESTIONS FROM THE HONORABLE JOSEPH F. 

ANDERSON, JR., JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Æ 


7.eps