Readers of MassTortDefense, outside counsel and clients alike, should have their eye on a pending legislative proposal to change the way protective orders are entered in civil lawsuits, as it may further burden an already expensive discovery process.  The “Sunshine in Litigation Act” was reintroduced in both the House and Senate earlier this year, as an attempt to change the way protective orders are used to protect trade secret information exchanged during discovery.

Under the bills, the federal court would be prohibited from making any information produced in discovery in a case confidential, unless and until a determination is made that keeping the information under seal would not restrict the disclosure of information “relevant to public health and safety.” The court could also enter a protective order when the public interest in the disclosure of potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information or records in question.  The current system operates with parties able to object to the designated confidentiality of a document after a protective order has been issued, with the judge making  a determination on whether the information should continue to be protected.  The new bill would require judges to review all potentially confidential information before it is exchanged in discovery to determine whether the interest in keeping it private outweighs the public’s interest in a potential health or safety hazard.

While plaintiffs have lobbied hard for the change, it is clear that the the proposal is an unnecessary
measure that places too heavy a burden on the judiciary.  The court would actually have to review what the parties were proposing to designate as confidential, creating a tremendous expense and delay at the early stages of the case.   Even the ABA has opposed the bill for the increased burden it poses on litigation, and because it appears to undermine the Rules Enabling Act, the longstanding procedure established by Congress for issuing and revising rules in the federal courts.

Moreover, there is no empirical evidence that protective orders create any significant problem of “concealing” information about public hazards. And the bills would put vital trade secrets at risk. To undermine important intellectual property rights in litigation that may not even have any merit seems like a bad idea. Such confidential information should be appropriately protected, which the current system does.

The goal of forcing public health disclosure, whatever one thinks about it, is clearly NOT the role of a court adjudicating a private dispute between private litigants;  it is the role of regulatory agencies, such as the FDA or the CPSC.  Of course, the legislation gives the courts no real guidance about how to assess and weigh the “public’s interest in a potential health or safety hazard.” And under the bills, it doesn’t matter whether plaintiffs want to act like mini-regulators: No party shall request, as a condition for the production of discovery, that another party stipulate to an order that would violate this section, and a court shall not approve or enforce any provision of an agreement between or among parties to a civil action that would undermine the mandated disclosures.