II 

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 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 2011’’. 


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1 SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEAL2 ING OF CASES AND SETTLEMENTS. 

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

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 1660. Restrictions on protective orders and sealing 

7 of cases and settlements 

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

9 state facts that are relevant to the protection of public 

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

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

12 of the Federal Rules of Civil Procedure restricting the dis13 closure of information obtained through discovery, an 

14 order approving a settlement agreement that would re15 strict the disclosure of such information, or an order re16 stricting access to court records unless in connection with 

17 such order the court has first made independent findings 

18 of fact that— 

19 ‘‘(A) such order would not restrict the disclo20 sure of information which is relevant to the protec21 tion of public health or safety; or 

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

23 past, present, or potential health or safety hazards 

24 is outweighed by a specific and substantial interest 

25 in maintaining the confidentiality of the information 

26 or records in question; and 


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

2 necessary to protect the confidentiality interest as3 serted. 

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

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

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

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

8 court makes a separate finding of fact that the require9 ments of paragraph (1) continue to be met. 

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

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

12 burden of proof in obtaining such an order. 

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

14 paragraph (1) is requested— 

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

16 Federal Rules of Civil Procedure; or 

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

18 of the parties. 

19 ‘‘(5)(A) The provisions of this section shall not con20 stitute grounds for the withholding of information in dis21 covery that is otherwise discoverable under rule 26 of the 

22 Federal Rules of Civil Procedure. 

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

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

25 section. 


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

2 state facts that are relevant to the protection of public 

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

4 provision of an agreement between or among parties, or 

5 approve or enforce an order entered as a result of the op6 eration of subsection (a)(1), to the extent that such provi7 sion or such order prohibits or otherwise restricts a party 

8 from disclosing any information relevant to such civil ac9 tion to any Federal or State agency with authority to en10 force laws regulating an activity relating to such informa11 tion. 

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

13 State agency shall be confidential to the extent provided 

14 by law. 

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

16 enforce any provision of a settlement agreement described 

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

18 prohibits 1 or more parties from— 

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

20 was reached or the terms of such settlement, other 

21 than the amount of money paid; or 

22 ‘‘(B) discussing a civil action, or evidence pro23 duced in the civil action, that involves matters rel24 evant to the protection of public health or safety. 


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

2 independent findings of fact that— 

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

4 past, present, or potential public health or safety 

5 hazards is outweighed by a specific and substantial 

6 interest in maintaining the confidentiality of the in7 formation or records in question; and 

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

9 necessary to protect the confidentiality interest as10 serted. 

11 ‘‘(d) When weighing the interest in maintaining con12 fidentiality under this section, there shall be a rebuttable 

13 presumption that the interest in protecting personally 

14 identifiable information relating to financial, health or 

15 other similar information of an individual outweighs the 

16 public interest in disclosure. 

17 ‘‘(e) Nothing in this section shall be construed to per18 mit, require, or authorize the disclosure of classified infor19 mation (as defined under section 1 of the Classified Infor20 mation Procedures Act (18 U.S.C. App.)).’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

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

24 to section 1659 the following: 

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


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1 SEC. 3. EFFECTIVE DATE. 

2 The amendments made by this Act shall— 

3 (1) take effect 30 days after the date of enact4 ment of this Act; and 

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

6 or agreements entered into on or after such date. 

Æ 


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