II 

Calendar No. 64 

112TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

MARCH 17, 2011 

Mr. KOHL (for himself, Mr. GRAHAM, Mr. LEAHY, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

MAY 19, 2011 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Act of 2011’’. 

4 SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEAL5 ING OF CASES AND SETTLEMENTS. 

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

7 States Code, is amended by adding at the end the fol8 lowing: 

9 ‘‘§ 1660. Restrictions on protective orders and sealing 

10 of cases and settlements 

11 ‘‘(a)(1) In any civil action in which the pleadings 

12 state facts that are relevant to the protection of public 

13 health or safety, a court shall not enter, by stipulation or 

14 otherwise, an order otherwise authorized under rule 26(c) 

15 of the Federal Rules of Civil Procedure restricting the dis16 closure of information obtained through discovery, an 

17 order approving a settlement agreement that would re18 strict the disclosure of such information, or an order re19 stricting access to court records unless in connection with 

20 such order the court has first made independent findings 

21 of fact that— 

22 ‘‘(A) such order would not restrict the disclo23 sure of information which is relevant to the protec24 tion of public health or safety; or 

25 ‘‘(B)(i) the public interest in the disclosure of 

26 past, present, or potential health or safety hazards 


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1 is outweighed by a specific and substantial interest 

2 in maintaining the confidentiality of the information 

3 or records in question; and 

4 ‘‘(ii) the requested order is no broader than 

5 necessary to protect the confidentiality interest as6 serted. 

7 ‘‘(2) No order entered as a result of the operation 

8 paragraph (1), other than an order approving a settlement 

9 agreement, may continue in effect after the entry of final 

10 judgment, unless at the time of, or after, such entry the 

11 court makes a separate finding of fact that the require12 ments of paragraph (1) continue to be met. 

13 ‘‘(3) The party who is the proponent for the entry 

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

15 burden of proof in obtaining such an order. 

16 ‘‘(4) This section shall apply even if an order under 

17 paragraph (1) is requested— 

18 ‘‘(A) by motion pursuant to rule 26(c) of the 

19 Federal Rules of Civil Procedure; or 

20 ‘‘(B) by application pursuant to the stipulation 

21 of the parties. 

22 ‘‘(5)(A) The provisions of this section shall not con23 stitute grounds for the withholding of information in dis24 covery that is otherwise discoverable under rule 26 of the 

25 Federal Rules of Civil Procedure. 


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1 ‘‘(B) A court shall not approve any party’s stipulation 

2 or request to stipulate to an order that would violate this 

3 section. 

4 ‘‘(b)(1) In any civil action in which the pleadings 

5 state facts that are relevant to the protection of public 

6 health or safety, a court shall not approve or enforce any 

7 provision of an agreement between or among parties, or 

8 approve or enforce an order entered as a result of the op9 eration of subsection (a)(1), to the extent that such provi10 sion or such order prohibits or otherwise restricts a party 

11 from disclosing any information relevant to such civil ac12 tion to any Federal or State agency with authority to en13 force laws regulating an activity relating to such informa14 tion. 

15 ‘‘(2) Any such information disclosed to a Federal or 

16 State agency shall be confidential to the extent provided 

17 by law. 

18 ‘‘(c)(1) Subject to paragraph (2), a court shall not 

19 enforce any provision of a settlement agreement described 

20 under subsection (a)(1) between or among parties that 

21 prohibits 1 or more parties from— 

22 ‘‘(A) disclosing the fact that such settlement 

23 was reached or the terms of such settlement, other 

24 than the amount of money paid; or 


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1 ‘‘(B) discussing a civil action, or evidence pro2 duced in the civil action, that involves matters rel3 evant to the protection of public health or safety. 

4 ‘‘(2) Paragraph (1) applies unless the court has made 

5 independent findings of fact that— 

6 ‘‘(A) the public interest in the disclosure of 

7 past, present, or potential public health or safety 

8 hazards is outweighed by a specific and substantial 

9 interest in maintaining the confidentiality of the in10 formation or records in question; and 

11 ‘‘(B) the requested order is no broader than 

12 necessary to protect the confidentiality interest as13 serted. 

14 ‘‘(d) When weighing the interest in maintaining con15 fidentiality under this section, there shall be a rebuttable 

16 presumption that the interest in protecting personally 

17 identifiable information relating to financial, health or 

18 other similar information of an individual outweighs the 

19 public interest in disclosure. 

20 ‘‘(e) Nothing in this section shall be construed to per21 mit, require, or authorize the disclosure of classified infor22 mation (as defined under section 1 of the Classified Infor23 mation Procedures Act (18 U.S.C. App.)).’’. 

24 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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


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

2 to section 1659 the following: 

‘‘1660. Restrictions on protective orders and sealing of cases and settlements.’’. 

3 SEC. 3. EFFECTIVE DATE. 

4 The amendments made by this Act shall— 

5 (1) take effect 30 days after the date of enact6 ment of this Act; and 

7 (2) apply only to orders entered in civil actions 

8 or agreements entered into on or after such date. 

9 SECTION 1. SHORT TITLE. 

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

11 Act of 2011’’. 

12 SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEAL13 ING OF CASES AND SETTLEMENTS. 

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

15 States Code, is amended by adding at the end the following: 

16 ‘‘§ 1660. Restrictions on protective orders and sealing 

17 of cases and settlements 

18 ‘‘(a)(1) Except as provided under subsection (e), in 

19 any civil action in which the pleadings state facts that are 

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

21 shall not enter, by stipulation or otherwise, an order other22 wise authorized under rule 26(c) of the Federal Rules of 

23 Civil Procedure restricting the disclosure of information ob24 tained through discovery, an order approving a settlement 

25 agreement that would restrict the disclosure of such inforVerDate Mar 15 2010 01:19 May 20, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\S623.RS S623

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1 mation, or an order restricting access to court records unless 

2 in connection with such order the court has first made inde3 pendent findings of fact that— 

4 ‘‘(A) such order would not restrict the disclosure 

5 of information which is relevant to the protection of 

6 public health or safety; or 

7 ‘‘(B)(i) the public interest in the disclosure of 

8 past, present, or potential health or safety hazards is 

9 outweighed by a specific and substantial interest in 

10 maintaining the confidentiality of the information or 

11 records in question; and 

12 ‘‘(ii) the requested order is no broader than nec13 essary to protect the confidentiality interest asserted. 

14 ‘‘(2) No order entered as a result of the operation para15 graph (1), other than an order approving a settlement 

16 agreement, may continue in effect after the entry of final 

17 judgment, unless at the time of, or after, such entry the 

18 court makes a separate finding of fact that the requirements 

19 of paragraph (1) continue to be met. 

20 ‘‘(3) The party who is the proponent for the entry of 

21 an order, as provided under this section, shall have the bur22 den of proof in obtaining such an order. 

23 ‘‘(4) This section shall apply even if an order under 

24 paragraph (1) is requested— 


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1 ‘‘(A) by motion pursuant to rule 26(c) of the 

2 Federal Rules of Civil Procedure; or 

3 ‘‘(B) by application pursuant to the stipulation 

4 of the parties. 

5 ‘‘(5)(A) The provisions of this section shall not con6 stitute grounds for the withholding of information in dis7 covery that is otherwise discoverable under rule 26 of the 

8 Federal Rules of Civil Procedure. 

9 ‘‘(B) A court shall not approve any party’s stipulation 

10 or request to stipulate to an order that would violate this 

11 section. 

12 ‘‘(b)(1) In any civil action in which the pleadings state 

13 facts that are relevant to the protection of public health or 

14 safety, a court shall not approve or enforce any provision 

15 of an agreement between or among parties, or approve or 

16 enforce an order entered as a result of the operation of sub17 section (a)(1), to the extent that such provision or such 

18 order prohibits or otherwise restricts a party from dis19 closing any information relevant to such civil action to any 

20 Federal or State agency with authority to enforce laws reg21 ulating an activity relating to such information. 

22 ‘‘(2) Any such information disclosed to a Federal or 

23 State agency shall be confidential to the extent provided by 

24 law. 


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1 ‘‘(c)(1) Subject to paragraph (2), a court shall not en2 force any provision of a settlement agreement described 

3 under subsection (a)(1) between or among parties that pro4 hibits 1 or more parties from— 

5 ‘‘(A) disclosing the fact that such settlement was 

6 reached or the terms of such settlement, other than the 

7 amount of money paid; or 

8 ‘‘(B) discussing a civil action, or evidence pro9 duced in the civil action, that involves matters rel10 evant to the protection of public health or safety. 

11 ‘‘(2) Paragraph (1) applies unless the court has made 

12 independent findings of fact that— 

13 ‘‘(A) the public interest in the disclosure of past, 

14 present, or potential public health or safety hazards 

15 is outweighed by a specific and substantial interest in 

16 maintaining the confidentiality of the information or 

17 records in question; and 

18 ‘‘(B) the requested order is no broader than nec19 essary to protect the confidentiality interest asserted. 

20 ‘‘(d) When weighing the interest in maintaining con21 fidentiality under this section, there shall be a rebuttable 

22 presumption that the interest in protecting personally iden23 tifiable information relating to financial, health or other 

24 similar information of an individual outweighs the public 

25 interest in disclosure. 


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1 ‘‘(e) Nothing in this section— 

2 ‘‘(1) shall prohibit a court from entering an 

3 order that would restrict the disclosure of informa4 tion, or an order restricting access to court records, 

5 if in either instance such order is necessary to protect 

6 from public disclosure— 

7 ‘‘(A) information classified under criteria 

8 established by an Executive order to be kept se9 cret in the interest of national defense or foreign 

10 policy; or 

11 ‘‘(B) intelligence sources and methods; or 

12 ‘‘(2) shall be construed to permit, require, or au13 thorize the disclosure of information that— 

14 ‘‘(A) is classified under criteria established 

15 by an Executive order to be kept secret in the in16 terest of national defense or foreign policy; or 

17 ‘‘(B) reveals intelligence sources and meth18 ods.’’. 

19 (b) TECHNICAL AND CONFORMING AMENDMENT.—The 

20 table of sections for chapter 111 of title 28, United States 

21 Code, is amended by adding after the item relating to sec22 tion 1659 the following: 

‘‘1660. Restrictions on protective orders and sealing of cases and settlements.’’. 

23 SEC. 3. EFFECTIVE DATE AND APPLICATION. 

24 The amendments made by this Act shall— 


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1 (1) take effect 30 days after the date of enact2 ment of this Act; 

3 (2) apply only to orders entered in civil actions 

4 or agreements entered into on or after the effective 

5 date of this Act; and 

6 (3) not provide a basis for the— 

7 (A) granting of a motion to reconsider, 

8 modify, amend or vacate a protective order or 

9 settlement order entered into before the effective 

10 date of this Act; or 

11 (B) reversal on appeal of a protective order 

12 or settlement order entered into before the effec13 tive date of this Act. 


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Calendar No. 64 

112TH CONGRESS 

1ST SESSION S. 623 

A BILL 

To amend chapter 111 of title 28, United States 

actions, and for other purposes. cases, disclosures of discovery information in civil Code, relating to protective orders, sealing of 

MAY 19, 2011 

Reported with an amendment 


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