99–010 

Calendar No. 64 

112TH CONGRESS REPORT " ! SENATE 1st Session 112–45 

SUNSHINE IN LITIGATION ACT OF 2011 

AUGUST 2, 2011.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany S. 623] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to which was referred the bill 

(S. 623), 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 2011 1 

II. History of the Bill and Committee Consideration ....................................... 15 

III. Section-by-Section Summary of the Bill ...................................................... 17 

IV. Congressional Budget Office Cost Estimate ................................................ 19 

V. Regulatory Impact Evaluation ...................................................................... 20 

VI. Conclusion ...................................................................................................... 20 

VII. Minority Views ............................................................................................... 21 

VIII. Changes to Existing Law Made by the Bill, as Reported ........................... 24 

I. BACKGROUND AND PURPOSE OF THE SUNSHINE IN LITIGATION ACT

OF 2011 

The purpose of S. 623, the Sunshine in Litigation Act, is to protect the public from potential health or safety dangers that are too 


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1Letter to Senator Herb Kohl from Alliance for Justice, The Center for Justice and Democracy, Consumers Union, Consumer Federation of America, National Consumers League, US 

PIRG, and Public Citizen (April 14, 2011). 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 accessed June 23, 2011). 

often concealed by court orders restricting disclosure of information. 

The bill requires judges, in cases pleading facts relevant to public 

health and safety, to consider the public’s interest in disclosure of 

health and safety information before issuing a protective order or 

an order to seal court records or a settlement agreement. Under 

this bill, the proponent of such an order must demonstrate that the 

order would not restrict the disclosure of information relevant to 

protecting public health and safety. If the order would restrict such 

disclosure, the judge must find that the public interest in knowing 

about 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 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. 623 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. Despite the concerns expressed in the minority views, 

nothing in the Rules Enabling Act prevents congressional action to 

protect public health and safety. This legislation has arisen in part 

out of a concern that the courts have not adequately considered the 

importance of transparency. 

This legislation is prospective and 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. It does not 

provide a basis for reconsidering an order entered into before the 

effective date. The Sunshine in Litigation Act is not intended to 

preempt or displace current law, the Federal Rules of Civil Procedure, common law or First Amendment law unless that law provides 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 information, such as in the case of 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 


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2The 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] (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 protective orders despite the fact that there is some publicity about the cases. 

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 pick-up trucks, and 

defective heart valves. Other examples include cases involving dangers from side-saddle gas tanks, playground equipment, IUD birth 

control devices, tires and portable cribs. 

In December 2007, the Judiciary Committee’s Subcommittee on 

Antitrust, Competition Policy and Consumer Rights received testimony about more recent examples, including phenylpropanolamine 

(PPA) in children’s over-the-counter medicine, Cooper tires and the 

prescription drug Zyprexa. 

This problem most often arises in product liability cases. Typically, an individual sues a manufacturer for an injury or death that 

has resulted from a defect in one of the manufacturer’s products. 

In these cases, the victim generally faces a large corporation that 

can spend large sums of money defending the lawsuit and delaying 

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, without access to that information, it 

takes the public and regulators much longer than it should 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 AdministraVerDate Mar 15 2010 02:32 Aug 05, 2011 Jkt 099010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR045.XXX SR045

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4 Examining the Use of Secrecy and Confidentiality of Documents by Courts in Civil Case: 

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. 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 accessed June 23, 2011); Alex Berenson, Lilly Settles With 18,000 Over Zyprexa, NY Times, 

Jan. 5, 2007, http://query.nytimes.com/gst/fullpage.html? res=9F00E5DB1430F936A35752C0A 

9619C8B63&sec=&spon=&pagewanted=print (last accessed June 23, 2011). 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. 

tive Practice that she nearly died from taking this legally prescribed drug. She later learned that the company had known the 

drug could kill some people and used judicially-sanctioned secrecy 

to keep that 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 diabetes. Eli Lilly was also accused of promoting off label use of the drug 

by urging doctors to prescribe it to elderly patients with dementia. 

All of the settlements required plaintiffs to agree ‘‘not to communicate, publish or cause to be published . . . any statement . . . 

concerning the specific events, facts or circumstances giving rise to 

[their] claims.’’ The public did not learn about these settlements or 

Zyprexa’s dangerous side effects until nearly two years later, in 

2006, when The New York Times received and published leaked 

documents from a 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 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 Food and Drug Administration (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 when settling dozens of lawsuits, before the FDA finally removed the valves from the market. The Subcommittee on Courts 

and Administrative Practice heard testimony from Fredrick Barbee 

about how court-endorsed secrecy prevented him and his wife from 

learning about the potential heart valve malfunction and ultiVerDate Mar 15 2010 02:32 Aug 05, 2011 Jkt 099010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR045.XXX SR045

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

8Maharaj, supra note 4. 

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://democrats.oversight.house.gov/images/stories/documents/20040827102309–56026.pdf (last accessed 

June 23, 2011). 

mately 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

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 could 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 subsequent investigation revealed that 

prior to 1999, Metabolife had 138 reports of significant adverse 

events, including heart attacks, strokes, seizures, and psychosis.11


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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. 

8. ‘‘Park-to-reverse’’ malfunction 

For many years, Ford was aware of problems associated with a 

‘‘park-to-reverse’’ malfunction in its pick-up trucks and quietly settled cases stemming from this alleged defect. It was not until several years later that Ford made a minimal effort to notify original 

owners by sending stickers alerting them that there was a problem. 

The stickers made no mention of the potential risks of serious injury or death. Unfortunately, 2.7 million of these truck owners did 

not receive the warning. One victim of the alleged defect was Tom 

Schmidt. His parents, Leonard and Arleen Schmidt testified before 

the Subcommittee on Courts and Administrative Practice. During 

their lawsuit they learned that Ford had known about the problem 

as early as 1970 and for many years, Ford had quietly settled cases 

with strict protective orders concealing information about the problem.12

9. Side-saddle gas tanks 

Over the course of several years, General Motors quietly settled 

more than 200 cases brought by victims of fiery truck 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 pick-up truck 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 Bradleys’ car accident. In 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 


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15 2007 Hearing (testimony of Johnny Bradley, Jr.) 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. 

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 secret and plaintiffs often settle before trial. In a case filed in the 

Central District of Illinois, K.V. v. 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 manufacturers 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 (DOJ) charged Miracle Recreation in a civil 

suit with failing to reveal reports of injuries to dozens of children.17


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

news/newsldetail/1998lchicmag.pdf (last accessed June 23, 2011); Danny’s story on the Kids 

in Danger website at http://www.kidsindanger.org/family-voices/danny/ (last accessed June 

23, 2011). 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 

14. Portable cribs 

In May 1998, 16-month-old Danny Keysar was strangled to death 

at his licensed childcare facility when a Playskool ‘‘Travel-Lite’’ 

portable crib collapsed, trapping his neck in the ‘‘V’’ of its folded 

rails. Danny’s parents sued the crib manufacturers, Kolcraft. During discovery, they learned that three prior lawsuits involving the 

same product defect had been settled secretly. Kolcraft offered 

Danny’s parents a settlement, but only on the condition that they 

agreed to a secrecy provision. The parents would not accept a settlement that mandated their silence. Despite intense pressure to 

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

a non-secret $3 million settlement agreement.18

15. Seroquel 

In Florida, plaintiffs’ lawyers and Bloomberg News sued to force 

AstraZeneca to make public clinical studies about the harmful side 

effects of an antipsychotic drug, Seroquel, which were discovered in 

lawsuits that were subsequently dismissed. In 2009, the court unsealed some of the documents in question, but denied requests to 

release AstraZeneca’s submissions to foreign regulators and sales 

representatives’ notes about doctors’ meetings. Despite a recent 

$68.5 million settlement, continued efforts to unseal crucial documents proved unsuccessful. 

16. British Petroleum Gulf oil spill 

In April 2010, the Gulf Coast was devastated by a massive oil 

spill in the Gulf of Mexico. Numerous lawsuits were filed against 

British Petroleum. As the parties fight over crucial documents in 

those lawsuits, injured parties continue to accept secret settlements. These settlements may keep hidden documents that could 

shed light on potential future public health and safety risks. 

17. Unintended acceleration problems 

Recently, the world’s largest automaker, Toyota, has faced a barrage of litigation relating to its recall of over 8 million cars due to 

sudden unintended acceleration problems, which may have caused 

more than 80 deaths. After years of lawsuits, congressional oversight hearings, and Toyota’s efforts to keep settlements and product information secret, a California Federal judge finally made public thousands of previously sealed documents, noting that ‘‘the business of this litigation should be in the public domain.’’ Had a judge 

been required to weigh the public’s interest in health and safety, 

as this legislation would require, perhaps the public would have 

known more about the risks sooner, and some of those lives could 

have been saved. 

B. CIVIL SUITS UNCOVER EARLY DANGERS

Civil lawsuits are often a critical first source of information 

about dangerous products.19 For example, in a class action case 


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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 note 4. 21 2007 Hearing (testimony of Judge Anderson) 22 2007 Hearing (testimony of Leslie Bailey) 

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

Leslie Bailey, a public interest lawyer with Public Justice who 

regularly represents clients who 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: 


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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). 

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, defendants and the public, 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 protections.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 

reviewing other orders that restrict access to information, including 

settlement agreements, but no such consideration is required. 

Parties in a civil action may choose to resolve pending litigation 

by agreeing to a settlement that contains a confidentiality provision 

sealing some or all of the discovery documents uncovered during 

litigation, the terms of the settlement, the fact that a settlement 

was reached and the fact that a case was ever filed. 

Even when not required by statute, parties may choose to seek 

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25 2007 Hearing (testimony of Judge Anderson) 

tiality. 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 Sunshine in Litigation Act of 2011 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 in cases pleading 

facts relevant to public health and safety. By creating this additional requirement, S. 623 will ensure that court-endorsed confidentiality protection does not jeopardize the public’s ability to 

learn about potential health or safety dangers. The additional requirement applies only to cases pleading facts relevant to public 

health and safety—a change made this Congress to clarify the 

reach of the bill. 

A minority of Senators on this Committee have raised the concern that this legislation would lead to the filing of frivolous lawsuits, or change discovery rules during lawsuits. However, nothing 

in the purpose or content of this legislation would alter lawsuit filing standards, which were recently heightened by the Supreme 

Court. Further, nothing in this legislation alters time-honored discovery rules during litigation. Similar measures that have been in 

effect for more than 15 years in Texas and Florida go even further 

than this bill, and they have not resulted in increased trials or litigation over discovery, or a decrease in settlements. 

The bill will not burden the Federal court system. It will affect 

only a small subset of Federal cases, those that plead facts relevant 

to public health and safety, and judges regularly weigh competing 

interests in balancing tests like the one required by this bill.25 A 

minority of Senators on this Committee have raised the concern 

that this bill would burden courts by requiring judges to review all 

documents for relevance to public health and safety. However, that 

is untrue. The burden of proof rests on the proponent of the order 

to point the court directly to the information it wants sealed, and 

make the argument for such sealing. 

1. Protective orders 

Some judges already consider the public interest in disclosure of 

public health and safety information when reviewing protective orders. For those judges, the effect of this legislation will be minimal. 


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26 Id. 

For those who do not, S. 623 simply requires them to make such 

a consideration. 

The vast majority of cases in the Federal court system do not 

plead facts relevant to public health and safety. In these cases, this 

law will not apply. Therefore, in most cases, judges will be able to 

issue a protective order without making a significant inquiry based 

on S. 623. 

In the relatively small number of cases that do plead facts relevant to public health and safety, and where a judge finds that 

such an order would restrict disclosure of information relevant to 

protecting the public, the judge will have to weigh interests in disclosure with interests in confidentiality. According to S. 623, in 

these cases 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. 623 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. 623.26 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 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. 


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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 First Amendment law dictating when court 

records may be sealed. The bill does not purport to replace existing 

law interpreting the First Amendment. Instead, it creates an additional reason for openness when public health or safety is at issue. 

3. Settlement agreements 

The legislation requires judges to apply the provisions in subsection (a)(1) prior to approving 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 interest in disclosure is outweighed by a specific and substantial interest in confidentiality. 

Under subsection (c), S. 623 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 defendants’ 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, S. 623 will not affect 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 


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27Fla. Stat. § 69.081 (2000); Tex. R. Civ. Pro. 76a. 28 Joseph F. Anderson Jr., Secrecy in the Courts: At the Tipping Point?, presented Vil. L. Rev. 

Norman J. Shachoy Symposium: The Future of Judicial Transparency, Feb. 2, 2008. 29 Id. 

ability to conceal public health and information in civil lawsuits.27

Critics of these measures argued that the court system would be 

severely disrupted because parties would no longer have the same 

incentives to settle their cases, resulting in greater demands on 

trial judges. Opponents made similar claims when the Federal District Court for the District of South Carolina unanimously adopted 

Local Rule 5.03(c), which prohibits all sealed settlements.28 To 

date, none of these dire predictions has come to fruition. In fact, 

South Carolina’s district courts have actually experienced a decrease in trials and 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. 623 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. 623 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 prohibit a court from entering an 

order that would restrict the disclosure of information, or an order 

restricting access to court records, if in either instance such order 

is necessary to protect from public disclosure information classified 

under criteria established by an Executive order to be kept secret 

in the interest of national defense or foreign policy. Further, nothing in this section shall be construed to permit, require or authorize the disclosure of information that is classified under criteria established by an Executive order to be kept secret in the interest of 

national defense or foreign policy. 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. 623 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. 


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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 

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). 

II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. COMMITTEE CONSIDERATION—103RD THROUGH 111TH CONGRESSES

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’s Subcommittee on Courts and Administrative 

Practice held a hearing, ‘‘S. 1404, a bill to amend Chapter 111 of 

Title 28, United States Code, relating to protective orders, sealing 

of cases, disclosures of discovery information in civil actions, and 

for other purposes.’’ On June 27, 1994, the Sunshine in Litigation 

Act, with some minor changes,30 was offered as an amendment to 

S. 687, the Product Liability Fairness Act. 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. In 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. Also on December 

11, 2007, the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held a hearing, 

‘‘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 showing that Cooper Tires posed 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 caseloads and, as a result, they often agree 


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32 Anderson, supra note 28. 

to court-ordered secrecy with little more than consent of all parties. 

Judge Anderson testified about cases he was directly involved in 

and cases he was 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 in South Carolina’s District Court in 2002, 

which bans secret settlements. Contrary to the claims of those who 

opposed the rule, data indicates it has not resulted in more trials 

and that cases continue to settle. In fact, the number of trials has 

actually decreased since adoption of the rule. 

Judge Anderson has endorsed S. 623, noting: 

[it is] carefully-crafted legislation [that] 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 January 28, 2008, Senator Lindsey Graham (R–SC) signed on 

as a cosponsor. 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) 

Pass (1): Specter (R–PA) 

The bill was introduced again in the 111th Congress on March 

5, 2009. The Sunshine in Litigation Act of 2009, S. 537, was introduced by Senator Kohl, with Senator Lindsey Graham (R–SC) joining as an original cosponsor. It was referred to the Committee on 

the Judiciary and no further action was taken. 


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B. INTRODUCTION OF THE BILL AND COMMITTEE CONSIDERATION— 112TH CONGRESS

The Sunshine in Litigation Act of 2011, S. 623, was introduced 

by Senator Kohl on March 17, 2011. On March 28, 2011, Senator 

Lindsey Graham (R–SC) joined as a cosponsor. On April 8, Senator 

Patrick Leahy signed on as a cosponsor. 

On May 19, 2011, the Judiciary Committee met in executive session to consider the bill. Senator Kohl offered an amendment in the 

nature of a substitute that made three changes to the bill. One restricted the application of the bill to cases in which the pleadings 

state facts that are relevant to public health and safety. The second 

incorporated the relevant language from the Classified Information 

Procedures Act (CIPA) into the provisions protecting national security information. The original bill referred to CIPA, and the substitute amendment incorporated the particular CIPA language, 

clarifying that those protections would remain in place. The final 

change made clear that the bill would not provide a basis for the 

granting of a motion to reconsider, modify, amend or vacate a protective order or settlement order entered into before the effective 

date, or a basis for the reversal on appeal of a protective order or 

settlement order entered into before the effective date. The substitute amendment was accepted by unanimous consent. 

The Committee then voted to report the Sunshine in Litigation 

Act of 2011, 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 

Yeas (12): Leahy (D–VT), Kohl (D–WI), Feinstein (D–CA), Schumer 

(D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D– 

MN), Franken (D–MN), Coons (D–DE), Blumenthal (D–CT), 

Grassley (R–IA), Graham (R–SC) 

Nays (6): Hatch (R–UT), Kyl (R–AZ), Sessions (R–AL), Cornyn (R– 

TX), Lee (R–UT), Coburn (R–OK) 

Also on May 19, 2011, Senator Dianne Feinstein (D–CA) joined 

the bill as a cosponsor. 

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 2011.’’ 

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

settlements 

Section 2 (a) amends Chapter 111 of title 28 of the United States 

Code, by adding section 1660 to the end of Chapter 111. Title 28 

of the U.S. Code governs the Federal judiciary and Federal judicial 

procedure. Under current law, Federal courts may enter protective 

orders under Rule 26(c) of the Federal Rules of Civil Procedure 

simply by a showing that ‘‘good cause’’ for the protective order exists. The new section 1660 augments this ‘‘good cause’’ showing by 

requiring a court to make additional findings of fact for certain protective orders under Rule 26(c) of the Federal Rules of Civil Procedure. In the case of court records and sealed settlement agreements, the new section augments existing laws, including common 


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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 in which the pleadings state facts that are relevant to the protection of public health 

or safety, 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 in which the pleadings state facts that are 

relevant to the protection of public health or safety, 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. 


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Subsection (c), paragraph (1) states that, subject to paragraph 

(2), a court shall not enforce any provision of a settlement agreement described under subsection (a)(1) between or among parties 

that prohibits one or more parties from—(A) disclosing that 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 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. 

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 prohibit a court from entering an 

order that would restrict the disclosure of information, or an order 

restricting access to court records, if in either instance such order 

is necessary to protect from public disclosure—(A) information classified under criteria established by an Executive order to be kept 

secret in the interest of national defense or foreign policy; or (B) 

intelligence sources and methods. Further, nothing in this section 

shall be construed to permit, require, or authorize the disclosure of 

information that—(A) is classified under criteria established by an 

Executive order to be kept secret in the interest of national defense 

or foreign policy; or (B) reveals intelligence sources and methods. 

Section 2 (b) amends the table of sections of 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 and application 

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; and not provide 

a basis for the granting of a motion to reconsider, modify, amend 

or vacate a protective order or settlement order entered into before 

the effective date, or a basis for the reversal on appeal of a protective order or settlement order entered into before the effective date. 

IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee sets forth, with respect to the bill, S. 623, the following estimate and comparison prepared by the director of the 

Congressional Budget Office under section 402 of the Congressional 

Budget Act of 1974: 


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MAY 25, 2011. 

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. 623, the Sunshine in Litigation Act of 2011. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Martin von Gnechten. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 623—Sunshine in Litigation Act of 2011 

S. 623 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. 623 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. 

However, CBO estimates that any resulting increase in spending 

would be small and subject to the availability of appropriated 

funds. Enacting S. 623 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

S. 623 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 Martin von Gnechten. 

The estimate was approved by Theresa Gullo. 

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. 623. 

VI. CONCLUSION

The Sunshine in Litigation Act of 2011, S. 623, 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. 


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33Sunshine in Litigation Act of 2009: Hearing before the Subcomm. on Com. and Admin. Law 

of the House Comm. on the Judiciary, 111th Cong., 1st Sess. (June 4, 2009) at 52 (statement 

of Mark Kravitz) [hereinafter ‘‘Hearing of June 4, 2009’’]. 34 Hearing of June 4, 2009 at 52 (statement of Mark Kravitz). 35 Hearing of June 4, 2009 at 58 (written testimony of Mark Kravitz). 

VII. MINORITY VIEWS

MINORITY VIEWS FROM SENATORS KYL, HATCH, SESSIONS, 

CORNYN, COBURN, AND LEE 

The ‘‘Sunshine in Litigation Act’’ has been proposed numerous 

times since 1991, most recently as S. 623. Each time, the bill has 

been vehemently opposed by industry, lawyers, and judges. The Act 

purportedly would prevent judges in civil cases from issuing protective orders that would keep information confidential if it is relevant 

to the protection of public health or safety. In reality, however, this 

bill would simply provide a tool to trial lawyers to conduct fishing 

expeditions and file frivolous lawsuits with impunity. 

THE BILL IS UNNECESSARY

Proponents of the legislation cite anecdotal evidence of defendants covering up public health and safety problems via protective 

orders granted during litigation. However, as Judge Mark Kravitz 

has noted, the cited cases have all occurred in state courts.33 Judge 

Kravitz further emphasized that there is no evidence that such 

problems have occurred in the federal court system the only system 

that this legislation would affect.34 This Act is directed at a problem that does not exist. 

Federal Rule of Civil Procedure (FRCP) 26 already allows judges 

to weigh the need for protective orders against public or private 

concerns when such an order is challenged. The FRCP were created, and are normally amended, through the Rules Enabling Act 

(REA), which allows the Judicial Conference to create carefully 

crafted rules that are presented by the Supreme Court to Congress 

for approval. Changes are made in this manner to ensure that the 

rules governing federal courts are consistent with the needs of 

courts, lawyers, and all parties to litigation. Not only would this 

legislation superfluously modify the FRCP, it does so in a manner 

contrary to the REA. 

The Judicial Conference has repeatedly strongly criticized this 

bill and has conducted studies showing that the legislation serves 

no purpose. The Conference found that only about six percent of 

civil cases see requests for protective orders.35 In the majority of 

these cases, the order had no impact on public health or safety. 

And of the cases where it did, ‘‘the empirical data showed no evidence that protective orders create any significant problem of conVerDate Mar 15 2010 02:32 Aug 05, 2011 Jkt 099010 PO 00000 Frm 00021 Fmt 6604 Sfmt 6604 E:\HR\OC\SR045.XXX SR045

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36 Hearing of June 4, 2009 at 58 (written testimony of Mark Kravitz). 37 Hearing of June 4, 2009 at 58 (written testimony of Mark Kravitz). 38 Hearing of June 4, 2009 at 60 (written testimony of Mark Kravitz). 

cealing information about public hazards.’’ 36 Additionally, the 

study found that in cases that raised public health or safety concerns, there was sufficient information to inform citizens of the 

health risks contained in publicly available court documents.37

Last, the study concluded that judges usually will only grant protection orders for information that needs to be protected, and 

judges tend to recognize the importance of allowing access to data 

concerning public health risks.38

THE BILL’S ADVERSE EFFECTS ON CIVIL LITIGATION

This act will drive up the costs of litigation in a number of ways. 

Without the certainty that a protective order will be upheld, litigants will raise significantly more objections to litigation discovery 

in order to protect confidential information. Parties will be less 

willing to submit to discovery if they believe information will be 

disclosed to the public. This will inevitably result in expensive 

court battles, putting a greater burden on courts as well as the parties themselves. This is an unacceptable cost, especially when 

weighed against the limited beneficial effects that the bill would 

have. 

Courts would be further burdened by this legislation because 

they will be required to ensure that all pre-discovery documents do 

not contain any information concerning public health or safety hazards. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984), the 

Supreme Court held that pre-discovery materials are private matters and are not meant for the public. This bill, however, would require judges to scour these documents, which can be in the millions 

of pages, for any information that might concern a public health or 

safety hazard. Currently, to reduce the costs of litigation and speed 

up the discovery process, parties will frequently conduct discovery 

without judicial supervision. Passing this legislation will make this 

money-saving option impossible. Burdening these pre-discovery and 

discovery solutions would only delay discovery and put added 

strain on judges, who frequently already have heavy case loads. 

Chilling discovery in this manner would further increase the 

costs of litigation by disincentivizing parties to settle. By forcing 

documents to be disclosed regardless of the outcome of a suit, this 

bill removes a bargaining chip for litigants to settle outside of court 

once discovery begins. 

This bill would also encourage lawyers to go on fishing expeditions seeking information in discovery that would otherwise be protected. This would potentially allow frivolous lawsuits to be filed 

with impunity. While most of these lawsuits would be thrown out 

due to trial court discretion, some of them would inevitably go to 

trial and be a drain on court resources. And of course, even frivolous lawsuits that are disposed of before trial needlessly consume 

valuable public and private resources. 


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CONCLUSION

We stand in opposition to the ‘‘Sunshine in Litigation Act of 

2011’’ for the same reasons similar legislation has been rejected by 

congress since 1991. There is no benefit to enacting S. 623 into 

law—there is no evidence that protection orders are abused in federal courts. The only effect of this bill would be to increase litigation costs and burdens on federal judges. 

JON KYL. ORRIN G. HATCH. JEFF SESSIONS. JOHN CORNYN. TOM COBURN. MIKE LEE. 


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VIII. 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. 623, 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) Except as provided under subsection (e), in any civil action 

in which the pleadings state facts that are relevant to the protection 

of public health or safety, a court shall not enter, by stipulation or 

otherwise, an order otherwise authorized under rule 26(c) of the 

Federal Rules of Civil Procedure restricting the disclosure of information obtained through discovery, an order approving a settlement 

agreement that would restrict the disclosure of such information, or 

an order restricting access to court records unless in connection with 

such order the court has first made independent findings of fact 

that— 

(A) such order would not restrict the disclosure of information 

which is relevant to the protection of public health or safety; or 

(B)(i) the public interest in the disclosure of past, present, or 

potential health or safety hazards is outweighed by a specific 

and substantial interest in maintaining the confidentiality of 

the information or records in question; and 

(ii) the requested order is no broader than necessary to protect 

the confidentiality interest asserted. 

(2) No order entered as a result of the operation of paragraph (1), 

other than an order approving a settlement agreement, may continue in effect after the entry of final judgment, unless at the time 

of, or after, such entry the court makes a separate finding of fact 

that the requirements of paragraph (1) continue to be met. 

(3) The party who is the proponent for the entry of an order, as 

provided under this section, shall have the burden of proof in obtaining such an order. 

(4) This section shall apply even if an order under paragraph (1) 

is requested— 

(A) by motion pursuant to rule 26(c) of the Federal Rules of 

Civil Procedure; or 

(B) by application pursuant to the stipulation of the parties. 

(5)(A) The provisions of this section shall not constitute grounds 

for the withholding of information in discovery that is otherwise 

discoverable under rule 26 of the Federal Rules of Civil Procedure. 

(B) A court shall not approve any party’s stipulation or request to 

stipulate to an order that would violate this section. 


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(b)(1) In any civil action in which the pleadings state facts that 

are relevant to the protection of public health or safety, a court shall 

not approve or enforce any provision of an agreement between or 

among parties, or approve or enforce an order entered as a result 

of the operation of subsection (a)(1), to the extent that such provision 

or such order prohibits or otherwise restricts a party from disclosing 

any information relevant to such civil action to any Federal or State 

agency with authority to enforce laws regulating an activity relating 

to such information. 

(2) Any such information disclosed to a Federal or State agency 

shall be confidential to the extent provided by law. 

(c)(1) Subject to paragraph (2), a court shall not enforce any provision of a settlement agreement described under subsection (a)(1) 

between or among parties that prohibits 1 or more parties from— 

(A) disclosing the fact that such settlement was reached or the 

terms of such settlement, other than the amount of money paid; 

or 

(B) discussing a civil action, or evidence produced in the civil 

action, that involves matters relevant to the protection of public 

health or safety. 

(2) Paragraph (1) applies unless the court has made independent 

findings of fact that— 

(A) the public interest in the disclosure of past, present, or potential health or safety hazards is outweighed by a specific and 

substantial interest in maintaining the confidentiality of the information or records in question; and 

(B) the requested order is no broader than necessary to protect the confidentiality interest asserted. 

(d) When weighing the interest in maintaining confidentiality 

under this section, there shall be a rebuttable presumption that the 

interest in protecting personally identifiable information relating to 

financial, health or other similar information of an individual outweighs the public interest in disclosure. 

(e) Nothing in this section— 

(1) Shall prohibit a court from entering an order that would 

restrict the disclosure of information, or an order restricting access to court records, if in either instance such order is necessary to protect from public disclosure— 

(A) information classified under criteria established by 

an Executive order to be kept secret in the interest of national defense or foreign policy; or 

(B) intelligence sources and methods; or 

(2) shall be construed to permit, require, or authorize the disclosure of information that— 

(A) is classified under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; or 

(B) reveals intelligence sources and methods. 


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APPENDIX FOR MINORITY VIEWS 

AMERICAN BAR ASSOCIATION, 

Washington, DC, April 13, 2009. 

Hon. PATRICK J. LEAHY, Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR CHAIRMAN LEAHY: I am writing on behalf of the American 

Bar Association to voice our strong opposition to S. 537, the ‘‘Sunshine in Litigation Act of 2009.’’ 

The Act would change Federal Rule of Civil Procedure 26(c) by 

limiting a court’s ability to enter an order in a civil case (1) restricting disclosure of information obtained through discovery; (2) 

approving a settlement agreement restricting the disclosure of such 

information; or (3) restricting access to court records in civil cases 

unless the court makes certain findings that the order would not 

restrict the disclosure of information relevant to the protection of 

public health or safety, or that the public interest in disclosure of 

such information is outweighed by a specific interest in maintaining the confidentiality of the information and that the protective 

order is no broader than necessary to protect the privacy interest 

asserted. 

The ABA opposes S. 537 for two reasons. First, the bill would circumvent the Rules Enabling Act, the procedure established by Congress for revising rules in the federal courts. Second, the bill would 

impose additional, unnecessary requirements on, and restrict the 

discretion of, federal courts in ways that will only increase the burdens of litigation in both time and expense. The existing provisions 

of Rule 26 are currently operating to protect the public interest 

against unnecessary restrictions on information bearing on public 

health and safety, and protective orders are important to facilitate 

the prompt flow of discovery in litigation without imposing the additional burdens contemplated in the bill. 

Rules Enabling Act issues 

S. 537 is an unwise retreat from the balanced and inclusive process established by Congress in the Rules Enabling Act. The Rules 

Enabling Act process is based on three fundamental concepts: 

(1) the essential, central role of the judiciary in initiating and 

formulating judicial rulemaking; 

(2) the use of procedures that permit full public participation, including participation by members of the legal profession, in considering changes to the rules; and (3) congressional review before 

changes are adopted. 

S. 537 would depart from this balanced and inclusive process. 

The failure to follow the processes in the Rules Enabling Act would 

frustrate the purpose of the Act and could do harm to the effective 

functioning of the judicial system. 


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Substantive issues 

The current version of Rule 26(c) and the case law applying it 

give judges appropriate authority to determine when to enter a protective order and what provisions should or should not be in it in 

light of the particular facts and circumstances of each case. There 

are three substantive flaws in the proposed legislation: 

First, there is no demonstrable deficiency in the current version 

of Rule 26( c) that requires a change. The Committee on Rules of 

Practice and Procedure of the Judicial Conference of the United 

States (the ‘‘Rules Committee’’) reported to this Committee in 2008 

that empirical studies since 1991 show ‘‘no evidence that protective 

orders create any significant problem of concealing information 

about public hazards.’’ A copy of the Rules Committee’s letter of 

March 4, 2008, is attached to this letter. 

Second, requiring particularized findings of fact before any protective order could be issued in any case would impose an enormous burden on both the courts and litigants. Only a small fraction 

of civil cases involve issues that implicate the public health and 

safety. Yet, the bill would impose a broad rule that would apply to 

every civil case. Even in cases that arguably may bear on public 

health and safety issues, requiring a court to make detailed findings at the beginning of a case, possibly on a document-by-document basis, will impose an impossible burden on the court and the 

litigants. Protective orders facilitate the timely production of documents and permit challenges to particular documents after the parties have had a chance to review them and the case has evolved 

to the point when the parties and the court can understand their 

significance and context. The Rules Committee correctly noted in 

its letter to this Committee that the proposed legislation ‘‘would 

make discovery more expensive, more burdensome, and more timeconsuming, and would threaten important privacy interests.’’ 

Third, the requirement that judges entering an order approving 

a sealed settlement agreement must make the same particularized 

findings of fact necessary for discovery protective orders is also unnecessary. Only a small number of cases involve a sealed settlement agreement and only a portion of those cases involve a potential public health or safety hazard. In those cases that do, the complaints and other documents that are a matter of public record 

typically contain sufficient details about the alleged hazard or 

harm to apprise the public of the risk, the source of the risk, and 

the harm it allegedly causes. Sealing a settlement agreement in 

these cases would have no material impact on the public’s ability 

to be informed of potential health or safety hazards. 

The ABA has adopted policy regarding secrecy and coercive 

agreements on this very issue: 

Where information obtained under secrecy agreements 

(a) indicates risk of hazards to other persons, or (b) reveals 

evidence relevant to claims based on such hazards, courts 

should ordinarily permit disclosure of such information, 

after hearing, to other plaintiffs or to government agencies 

who agree to be bound by appropriate agreements or court 

orders to protect the confidentiality of trade secrets and 

sensitive proprietary information; . . . 


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Following adoption of this ABA policy, the Rules Committee and 

the Advisory Committee on Civil Rules of the Judicial Conference 

explored at length the need for changes in Rule 26( c) similar to 

the proposed changes in legislation such as S. 537. Both committees concluded that these changes are not warranted. They are not 

warranted for one overriding reason: the federal courts are already 

addressing these concerns when they consider whether to enter a 

protective order. 

Conclusion 

The current version of Rule 26(c) is and has been an appropriate, 

effective mechanism to protect the rights of both litigants and the 

public, without overburdening the administration of justice in the 

federal courts. Any proposed amendment to its provisions should be 

addressed through the existing Rules Enabling Act procedure. S. 

537 would not serve the public interest. 

Sincerely, 

THOMAS M. SUSMAN, Director, 

Governmental Affairs Office. 


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MAY 3, 2011. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

Hon. CHARLES GRASSLEY, 

Ranking Member, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR CHAIRMAN LEAHY AND RANKING MEMBER GRASSLEY: The 

undersigned members of the Coalition to Protect Privacy, Property, 

Confidentiality, and Efficiency in the Courts strongly oppose S. 

623, the ‘‘Sunshine in Litigation Act of 2011.’’ 

Our collective opposition stems from the fact that the bill would 

severely restrict existing judicial discretion to protect the privacy, 

property, and confidentiality of all litigants by requiring federal 

judges to make premature decisions about the masses of information produced in modern civil litigation. 

Ultimately, S. 623 would increase the costs and burdens associated with civil litigation while stifling the federal court system. Finally, the bill would confer unfair tactical advantages on certain 

litigants at the expense of others. 

Protective and sealing orders are invaluable litigation tools. 

These orders help ensure the confidentiality of valuable information produced in discovery. Severe restrictions on their availability 

would have a chilling effect not only on discovery and settlements 

but also on the commencement and defense of claims. 

Although S. 623 purports to benefit the public interest and protect public health and safety, it is unnecessary and would be harmful to litigants’ rights and the U.S. judicial system. According to 

studies conducted and analyzed by the U.S. Judicial Conference 

Rules Committee, there is no need to make it more difficult to issue 

discovery protective or sealing orders. This is because there is no 

evidence that protective orders create any significant problem of information about public hazards being inappropriately concealed or 

otherwise impede the efficient and appropriate sharing of discovery 

information. Current law provides judges with ample discretion to 

issue or deny protective and sealing orders, but does not impose 

upon them the mandatory, time consuming, and burdensome oversight role envisioned by S. 623. As a result, efforts to enact similar 

legislation in the past have repeatedly failed. 

The Coalition strongly believes that the ‘‘Sunshine in Litigation 

Act’’ would undermine the privacy and property rights of all litigants. S. 623 would also have a profoundly damaging impact on the 

United States civil justice system while burdening and delaying the 

just disposition of litigation. Accordingly the undersigned organizations urge you to oppose S. 623. 

Sincerely, 

Alliance of Automobile Manufacturers, 


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American Tort Reform Association, 

American Insurance Association, 

Civil Justice Association of California, 

Lawyers for Civil Justice, 

National Association of Manufacturers, 

PhRMA, 

U.S. Chamber Institute for Legal Reform, 

U.S. Chamber of Commerce. 

Æ 


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