For Bad Actors Seeking To Seal Court Documents, Blumenthal, Graham Hope To Permit Sunshine

(Washington, DC) – Today, U.S. Senators Richard Blumenthal (D-Conn.) and Lindsey Graham (R-S.C.) introduced  the Sunshine in Litigation Act of 2014, a bipartisan bill that would require federal judges to consider the public’s interest before allowing requests to seal court records in cases impacting public health and safety. Blumenthal and Graham introduced the bill in response to General Motors (GM) recent secret settlements related to liability lawsuits over the company’s faulty ignition switches as far back as 2005. This concealment prevented the public, and future GM car owners, from learning about the dangers posed by these faulty ignition switches.

“GM’s recent legal maneuvering reaching secret settlements shows why this legislation is essential. This legislation would have enabled people to be aware of the threats to safety posed by the faulty ignition switches and deaths could have been prevented,” Blumenthal said.

Blumenthal added, “Too often in product liability cases, victims are pressured to pay for a settlement with their silence, even when public interest outweighs corporate confidentiality. The Sunshine in Litigation Act will ensure that courts permit sunshine when product liability cases involve information vital to public health and safety. Concealment can kill, and so can secret settlements. The courts must be stopped from complicity in hiding lifesaving information. By sealing court records of lawsuit settlements that show serious safety defects, judges are aiding and abetting more deaths, injuries, and danger.” 

“Our legislation would require federal judges, in cases where the facts are relevant to public health and safety, to consider the public interest before issuing an order to seal court records or a settlement agreement,” said Graham. “As the federal investigation narrows in on whether GM deliberately concealed its knowledge of the defect, it is important to note that had this legislation been passed a decade earlier, more people would have been aware of the threats to safety posed by the recalled GM vehicles and deaths could have been prevented.”

Current rules governing federal court practice make it too easy for bad actors to  use protective orders to broadly shield vast amounts of information vital to health and safety from public scrutiny. Time and time again powerful litigants have used these tricks to protect their bottom line at the expense of unknowing consumers. The Sunshine in Litigation Act would prevent this sort of court-approved secrecy by:

• Creating a presumption against protective orders, unless and until a party requests the judge to make an independent finding of fact that the public interest in health and safety is outweighed by a specific and substantial interest in maintaining secrecy.
• Prohibiting a court from approving or enforcing any provision that restricts a party from disclosing public health or safety information that is relevant to the lawsuit to any Federal or state agency with authority to enforce laws regulating an activity related to such information.
• Increasing the efficiency of courts. Where the legislation requires disclosure, the information learned will be shared among those with similar cases, increasing court efficiency by avoiding duplication of discovery battles in every new case.

The Sunshine in Litigation Act was passed by the Judiciary Committee in 2011, with the support of Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa), but failed to reach the Senate floor.