[国会纪录：2009年3月5日（参议院）] [Page S2834-S2835]关于引入的账单，由Kohl先生（为他自己和格雷厄姆先生）提出了账单和联合决议：S. 537.一项修订轮胎第111章第111章的条例草案28，美国代码，与保护订单有关，案件的封信，民事诉讼中的发现信息披露，以及其他目的;向司法委员会委员会。科尔先生。主席先生，我今天上涨，介绍了2009年诉讼法案的阳光，这是一项将遏制联邦法院持续滥用秘密订单的法案。这种滥用的结果通常以密封的解决协议的形式出现，是为了保持从公众隐藏的重要健康和安全信息。这一问题几十年来期历了，最常见的是产品责任案件。通常，个人为其造成的损伤或死亡带来了对制造商的行动的原因，这是由于其一个产品中的缺陷导致的损伤或死亡。受伤的方经常面临着一个大公司，可以花费几乎无限的金额捍卫诉讼，延长了解决议所需的时间。面对一个强大的对手和安装医疗账单，原告往往别无选择，而是解决诉讼。 In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation. Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. Because they remain unaware of critical public health and safety information that could potentially save lives, the American public incurs the greatest cost. This concern about excessive secrecy is warranted by the fact that tobacco companies, automobile manufacturers, and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American people from future harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin. One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992-2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It was not until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died and more than 800 were injured as a result of the defective tires. If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued. Evidence suggests that the dangers posed by protective orders and secret settlements continue. On December 11, 2007, at a hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's [[Page S2835]] wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark about this life- threatening defect. In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree ``not to communicate, publish or cause to be published . . . any statement . . . concerning the specific events, facts or circumstances giving rise to [their] claims.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes. This very issue is currently before a Federal judge in Orlando, FL. There, the court is faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. Late last month, the court unsealed some of the documents at question, and is still deciding whether to unseal the remainder of the documents. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order. There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond General Motors, Bridgestone/Firestone, Cooper Tire, Zyprexa and Seroquel, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about. While some states have already begun to move in the right direction, we still have a long way to go. It is time to initiate a Federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require federal judges to perform a simple balancing test to ensure that in any proposed secrecy order, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies. This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harm is now. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the text of the bill was ordered to be printed in the Record, as follows: S. 537 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Sunshine in Litigation Act of 2009''. SEC. 2. RESTRICTIONS ON PROTECTIVE ORDERS AND SEALING OF CASES AND SETTLEMENTS. (a) In General.--Chapter 111 of title 28, United States Code, is amended by adding at the end the following: ``Sec. 1660. Restrictions on protective orders and sealing of cases and settlements ``(a)(1) A court shall not enter an order under rule 26(c) of the Federal Rules of Civil Procedure restricting the disclosure of information obtained through discovery, an order approving a settlement agreement that would restrict the disclosure of such information, or an order restricting access to court records in a civil case unless the court has made findings of fact that-- ``(A) such order would not restrict the disclosure of information which is relevant to the protection of public health or safety; or ``(B)(i) 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; and ``(ii) the requested protective order is no broader than necessary to protect the privacy interest asserted. ``(2) No order entered in accordance with paragraph (1), other than an order approving a settlement agreement, shall continue in effect after the entry of final judgment, unless at the time of, or after, such entry the court makes a separate finding of fact that the requirements of paragraph (1) have been met. ``(3) The party who is the proponent for the entry of an order, as provided under this section, shall have the burden of proof in obtaining such an order. ``(4) This section shall apply even if an order under paragraph (1) is requested-- ``(A) by motion pursuant to rule 26(c) of the Federal Rules of Civil Procedure; or ``(B) by application pursuant to the stipulation of the parties. ``(5)(A) The provisions of this section shall not constitute grounds for the withholding of information in discovery that is otherwise discoverable under rule 26 of the Federal Rules of Civil Procedure. ``(B) No party shall request, as a condition for the production of discovery, that another party stipulate to an order that would violate this section. ``(b)(1) A court shall not approve or enforce any provision of an agreement between or among parties to a civil action, or approve or enforce an order subject to subsection (a)(1), that prohibits or otherwise restricts a party from disclosing any information relevant to such civil action to any Federal or State agency with authority to enforce laws regulating an activity relating to such information. ``(2) Any such information disclosed to a Federal or State agency shall be confidential to the extent provided by law. ``(c)(1) Subject to paragraph (2), a court shall not enforce any provision of a settlement agreement described under subsection (a)(1) between or among parties that prohibits 1 or more parties from-- ``(A) disclosing that a settlement was reached or the terms of such settlement, other than the amount of money paid; or ``(B) discussing a case, or evidence produced in the case, that involves matters related to public health or safety. ``(2) Paragraph (1) does not apply if the court has made findings of fact that 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. ``(d) When weighing the interest in maintaining confidentiality under this section, there shall be a rebuttable presumption that the interest in protecting personally identifiable information relating to financial, health or other similar information of an individual outweighs the public interest in disclosure. ``(e) Nothing in this section shall be construed to permit, require, or authorize the disclosure of classified information (as defined under section 1 of the Classified Information Procedures Act (18 U.S.C. App.)).''. (b) Technical and Conforming Amendment.--The table of sections for chapter 111 of title 28, United States Code, is amended by adding after the item relating to section 1659 the following: ``1660. Restrictions on protective orders and sealing of cases and settlements.''. SEC. 3. EFFECTIVE DATE. The amendments made by this Act shall-- (1) take effect 30 days after the date of enactment of this Act; and (2) apply only to orders entered in civil actions or agreements entered into on or after such date. ______