I 

111TH CONGRESS 

2D SESSION H. R. 5419 

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 HOUSE OF REPRESENTATIVES 

MAY 26, 2010 

Mr. NADLER of New York introduced the following bill; which was 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 2010’’. 


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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 an order under 

11 rule 26(c) of the Federal Rules of Civil Procedure restrict12 ing the disclosure of information obtained through dis13 covery, an order approving a settlement agreement that 

14 would restrict the disclosure of such information, or an 

15 order restricting access to court records unless in connec16 tion with such order the court has first made independent 

17 findings of fact that— 

18 ‘‘(A) such order would not restrict the disclo19 sure of information which is relevant to the protec20 tion of public health or safety; or 

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

22 potential health or safety hazards is outweighed by 

23 a specific and substantial interest in maintaining the 

24 confidentiality of the information or records in ques25 tion; 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 in accordance with paragraph 

5 (1), other than an order approving a settlement agree6 ment, shall continue in effect after the entry of final judg7 ment, unless at the time of, or after, such entry the court 

8 makes a separate finding of fact that the requirements 

9 of paragraph (1) have been 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) No party shall request, as a condition for the 

24 production of discovery, that another party stipulate to an 

25 order that would violate this 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 to 

5 a civil action, or approve or enforce an order subject to 

6 subsection (a)(1), that prohibits or otherwise restricts a 

7 party from disclosing any information relevant to such 

8 civil action to any Federal or State agency with authority 

9 to enforce laws regulating an activity relating to such in10 formation. 

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

12 State agency shall be confidential to the extent provided 

13 by law. 

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

15 enforce any provision of a settlement agreement in any 

16 civil action in which the pleadings state facts that are rel17 evant to the protection of public health or safety between 

18 or among parties that prohibits one or more parties 

19 from— 

20 ‘‘(A) disclosing that a settlement was reached 

21 or the terms of such settlement that involve matters 

22 relevant to the protection of public health or safety, 

23 other than the amount of money paid; or 


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1 ‘‘(B) discussing the civil action, or evidence pro2 duced in the civil action, that involves matters re3 lated to 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 po7 tential health or safety hazards is outweighed by a 

8 specific and substantial interest in maintaining the 

9 confidentiality of the information or records in ques10 tion; 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 (c) RULE OF CONSTRUCTION.—Nothing in the 

4 amendments made by this act shall be construed to weak5 en or to limit— 

6 (1) existing common law or constitutional 

7 standards for information access; or 

8 (2) confidentiality protections as a basis for a 

9 protective order. 

10 SEC. 3. EFFECTIVE DATE. 

11 The amendments made by this Act shall— 

12 (1) take effect 30 days after the date of enact13 ment of this Act; and 

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

15 or agreements entered into on or after such date. 

Æ 


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