The Sunshine in Litigation Act of 2007 passed the Senate Judiciary Committee
in March, meaning that 14 years after the first version of the bill was
introduced, the light is finally dawning on Congress.
The bill—S. 2449, sponsored by Sens. Herb Kohl (D-Wis.), Lindsey
Graham (R-S.C.), and Patrick Leahy (D-Vt.)—would amend Chapter 111
of the U.S. Code, relating to protective orders, sealing of cases, and
disclosures of discovery information in civil actions. It would require
judges to consider public health and safety before allowing secrecy agreements.
“Too often, court secrecy agreements are used by powerful corporations
to hide public safety hazards from the American people and the public
safety agencies responsible for protecting them from dangerous and defective
products,” said AAJ President Kathleen Flynn Peterson in a statement
when the bill was reintroduced in December.
The bill would not ban all secrecy agreements but “simply says that
while litigants may want total confidentiality when resolving their disputes
in court, information about public health and safety dangers does not
deserve court-endorsed protection,” Kohl said after the Senate committee
approved the bill.
In Senate testimony, Johnny Bradley Jr. of Pachuta, Mississippi, said the
rollover that injured him and killed his wife could have been prevented
because the manufacturer of the tires on his Ford Explorer knew about
a series of design defects but kept that information secret. When the
tread on a rear tire of the Explorer separated, the vehicle rolled over.
Numerous similar incidents had been reported, and Cooper Tire & Rubber
Co. faced 200 lawsuits, said Bradley, but none of the information the
company had about the hazard was made public.
“I found out through my attorney that almost all of these documents
were kept confidential through various protective orders demanded by the
tire company and entered by courts around the country, so that vital information
that could have saved our family would never be disclosed to the public,”
Bradley’s attorney, Bruce Kaster of Ocala, Florida, said his client’s
compelling story should reinforce the need for openness of court records
on a national level. Florida has the strongest sunshine in litigation
act of the states that have similar statutes. Like the federal bill, the
Florida law provides that if documents disclose a public hazard, the court
must open them to the public.
Kaster first invoked the state’s antisecrecy statute in Jones v.
Goodyear Tire & Rubber Co., which went to the state supreme court
twice before the court ordered the defense to make its documents public.
(871 So. 2d 899 (Fla. Dist. App. 2003).) He presented the sunshine argument
in a later case, and the judge followed Jones and entered an order to
open the documents. (Vaughn v. Goodyear Dunlop Tires, No. 01-2089-CA-B
(Fla., Marion Co. Cir. Ct. 2006).)
Kaster thinks Florida lawyers are in a strong position to fight sealed
court records. “Now with the Jones decision and the trial judge
who applied Sunshine in Litigation afterward, there’s some pretty
good ammunition for the plaintiff to get those records opened up,” he said.
Kaster said the bar and the media need to be educated about antisecrecy
legislation—both state and federal.
“It’s a tool to help the public; it’s not a tool to help
your client—at least not directly. But it helps their peace of mind,”
he said. “Someone who’s lost a child is not motivated by money,
because it does not do them any good. They’re more motivated to
try to prevent the product from injuring someone else’s child.”
San Francisco lawyer Richard Zitrin, who teaches legal ethics at the University
of California, Hastings College of Law, noted in Senate testimony that
professional ethics require lawyers to put their clients’ interests
ahead of society’s—and the client’s interest is to obtain
the best settlement possible, even if it means agreeing to secrecy. Because
only 15 to 20 states have enacted rules that try to keep discovery information
public—and they aren’t uniform rules—the country needs
a federal law, he said.
“Until the law is changed to prevent the practice, attorneys believing
it to be in their client’s best interest to enter into a secrecy
agreement that conditions the return of the ‘smoking gun’
to the defendant will simply do so,” Zitrin said. “The attorney’s
perceived duty of zealous advocacy will trump the possibility of disclosure.”
At press time, the House had yet to introduce a companion measure.