II

104TH CONGRESS

1ST SESSION S. 374

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.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 8 (legislative day, JANUARY 30), 1995

Mr. KOHL introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Sunshine in Litigation

5 Act of 1995’’.
2

S 374 IS

1 SEC. 2. PROTECTIVE ORDERS AND SEALING OF CASES AND

2 SETTLEMENTS RELATING TO PUBLIC

3 HEALTH OR SAFETY.

4 (a) IN GENERAL.—Chapter 111 of title 28, United

5 States Code, is amended by adding at the end thereof the

6 following new section:

7 ‘‘§ 1659. Protective orders and sealing of cases and

8 settlements relating to public health or

9 safety

10 ‘‘(a)(1) A court shall enter an order under rule 26(c)

11 of the Federal Rules of Civil Procedure restricting the dis12 closure of information obtained through discovery or an

13 order restricting access to court records in a civil case only

14 after making particularized findings of fact that—

15 ‘‘(A) such order would not restrict the disclo16 sure of information which is relevant to the protec17 tion of public health or safety; or

18 ‘‘(B)(i) the public interest in disclosure of po19 tential health or safety hazards is clearly outweighed

20 by a specific and substantial interest in maintaining

21 the confidentiality of the information or records in

22 question; and

23 ‘‘(ii) the requested protective order is no broad24 er than necessary to protect the privacy interest as25 serted.
3

S 374 IS

1 ‘‘(2) No order entered in accordance with the provi2 sions of paragraph (1) shall continue in effect after the

3 entry of final judgment, unless at or after such entry the

4 court makes a separate particularized finding of fact that

5 the requirements of paragraph (1) (A) or (B) have been

6 met.

7 ‘‘(b) The party who is the proponent for the entry

8 of an order, as provided under this section, shall have the

9 burden of proof in obtaining such an order.

10 ‘‘(c)(1) No agreement between or among parties in

11 a civil action filed in a court of the United States may

12 contain a provision that prohibits or otherwise restricts a

13 party from disclosing any information relevant to such

14 civil action to any Federal or State agency with authority

15 to enforce laws regulating an activity relating to such in16 formation.

17 ‘‘(2) Any disclosure of information to a Federal or

18 State agency as described under paragraph (1) shall be

19 confidential to the extent provided by law.’’.

20 (b) TECHNICAL AND CONFORMING AMENDMENT.—

21 The table of sections for chapter 111 of title 28, United

22 States Code, is amended by adding after the item relating

23 to section 1658 the following:

‘‘1659. Protective orders and sealing of cases and settlements relating to public

health or safety.’’.
4

S 374 IS

1 SEC. 3. EFFECTIVE DATE.

2 The amendments made by this Act shall take effect

3 30 days after the date of the enactment of this Act and

4 shall apply only to orders entered in civil actions or agree5 ments entered into on or after such date.

Æ