Monday, March 17, 2008
According to the New York Times, the Senate Judiciary Committee has approved a bipartisan Sunshine in Litigation Act bill "that would require federal judges to consider public health and safety before granting protective orders, sealing court records, or approving a settlement agreement." The article speculates that the need "is especially great right now when federal agencies charged with protecting Americans lack the resources and the will to exercise strong oversight." Here’s an excerpt:
Under the bipartisan bill — the Sunshine in Litigation Act — judges will still have discretion about whether to grant a request for secrecy. First they will have to apply a sensible balancing test that takes into account both the public’s interest in learning of a potential hazard and the defendant’s legitimate interests in secrecy, say to protect trade secrets.
The bill, sponsored by Senators Herb Kohl of Wisconsin and Patrick Leahy of Vermont, both Democrats, and Lindsey Graham, a Republican from South Carolina, is similar to laws already on the books in several states.
Business interests opposed to the bill argue that it would discourage settlements, clog the courts with more trials and hurt plaintiffs by requiring lengthy fights over production of documents. Yet there has been no legal meltdown in jurisdictions that now have similar rules.
Although the Act may affect judicial calculations in granting protective orders and sealing court records in mass tort cases, because most mass torts aren’t certified as class actions, settlements do not require judicial approval under Rule 23.