May 29, 2008
Sunshine in Litigation: Heritage Foundation's View
The Heritage Foundation (which has a pretty clunky logo, don't you think?) has posted a position paper on the "Sunshine in Litigation Act," which would make most settlement agreements public along with evidence obtained in discovery. The paper, not surprisingly, opposes it, noting its value for the plaintiffs' bar (though it also would remove one item used for leverage in settling cases -- the ability to keep bad documents non-public).
My Review of Litigation piece is inching ever nearer publication and addresses related issues, though not, due to timing, the Act itself.
(Via Point of Law.)
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I'm an ethics professor who has been involved with this issue for a long time, including working with Sen. Kohl's staff and testifying in favor of this bill. Three years ago, I drafted a similar CA bill.
Not only has the Heritage Foundation got this wrong, but they are apparently commenting on an earlier draft of the bill, not the one that went through Senate Judiciary with bipartisan support. Trade secrets are protected. Legitimate protective orders (that is, other than those designed to "secretize" non-privileged discovery) are protected. Privacy rights are protected.
Most importantly, the PUBLIC is protected by legislation that will refuse to allow plaintiffs to be bought with hush money paid out by defendants who market dangerous products.
Will there be fewer settlements. Emperical evidence clearly says no -- just no more payments at a premium. And the experience before the federal district court in South Carolina, which has a no secrecy rule, shows they are trying FEWER cases.
Posted by: Richard Zitrin | Jun 4, 2008 9:22:18 AM