Senate revisits sunshine

From the Winter 2008 issue of The News Media & The Law, page 28.

Wisconsin's senior U.S. senator is working hard to keep health and safety information in the public eye, introducing a bill to make out-of-court settlement agreements with information about products endangering the public health and safety part of court filings.

Legislation intended to "restore the appropriate balance between secrecy and openness" was introduced by Sen. Herb Kohl (D-Wis.) in December 2007 and would require courts to keep records concerning matters of public health and safety available if the interest in disclosure outweighs secrecy concerns. Practically, this would apply most often in product liability cases.

Termed the "Sunshine in Litigation Act," Kohl says the measure supports the notion that "courts should not shield important health and safety information from the public." The bill, S. 2449, was debated at a Dec. 11 hearing where Kohl questioned supporters and opponents about the measure.

Sen. Orrin Hatch (R-Utah) was the bill's biggest opponent, appearing at the hearing briefly to state that contents of settlement files are "essentially private matters." He would rather defer to the judiciary to have control over whether files should be sealed or kept public, stating it is a "judicial function to manage case files."

However, one federal court that took up the issue came out on the other side. In 2002, the U.S. District Court for South Carolina unanimously adopted a rule restricting court-ordered secrecy in civil lawsuit settlements, becoming the only federal district with such a policy.

Judge Joseph F. Anderson, Jr., testifying on his own behalf and not that of the judiciary, actively supported the bill at the December hearing.

"These are powerful companies with enormous assets and a lot at stake. There are plaintiffs who have a lot to gain if they stay quiet . . . at the expense of the public interest," he said. "Secrecy is not good for the public interest."

The legislation would implement a balancing test requiring the party seeking a closure order to prove to a judge that "the public interest in the disclosure of potential health or safety hazards is outweighed by a specific and substantial interest" in keeping the records confidential.

"This just requires a balancing process where one has to be mindful of the other side of the equation," Anderson said. As a judge, "we do this all the time."

But to put the burden of proof for closure on the party who was involuntarily brought into court in the first place is an unfair requirement, argued Robert N. Weiner, a Washington, D.C., attorney who specializes in product liability cases.

"The defendants did not volunteer to be sued," he said. "Because someone chose to make an accusation against them does not mean they have to give up their privacy."

Regardless of the method, this issue cannot be resolved by Congress, Columbia, S.C., defense attorney Stephen G. Morrison asserted. "The protection of the public lies in the Consumer Product Safety Commission, the National Transportation Safety Administration and other agencies," he said.

"A judge is not a social regulator and always has the power to lift protective orders in the public's interest," Morrison said. He added that legislation such as this would "cause mischief."

However, even if court-approved settlement agreements would be considered publicly available records, a court's approval is not required to settle a case out of court, Morrison said.

"There will still be secret settlements — just without court approval. You can still settle privately," he said, so long as the parties agree not to file the settlement in court.

Also testifying at the hearing was Johnny Bradley, Jr., a victim of a car crash caused by a tire he said was defective, Leslie A. Bailey, a public-interest attorney with the Washington, D.C.-based Public Justice, and Richard A. Zitrin, a law professor at the University of California at Hastings.

The Reporters Committee for Freedom of the Press submitted written testimony for the hearing that discussed the significant costs media organizations must often bear to gain a court's recognition that the public should have the right to access settlement documents.

This is not the first such measure Kohl has brought before the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights. Similar legislation was introduced on five previous occasions beginning in 1995 but never passed.

The most recent version of the bill was referred to the full Judiciary Committee where it currently sits.