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May 2008

Does Court Secrecy Undermine Public Health and Safety?

The Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety? Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, United States Senate. 110th Congress, 1st Session (2007).

In December of 2007 the Subcommittee on Antitrust, Competition Policy and Consumer Rights held a hearing in Washington to consider how, or if, civil case settlements that require confidential agreements between the parties to not disclose the issues or any evidence gathered are a threat to public safety. The Hearing starts out, as Congressional Hearings often do, with a statement from someone affected by the issue that the proposed legislation is intended to fix. In this instance it is Johnny Bradley who relates how lack of knowledge of product failures, allegedly due to earlier settlements that prevented the release of the product history, contributed to the death of his wife and caused injuries to himself and his son.

Other witnesses include Judge Joseph Anderson (U.S. District Court, South Carolina), Leslie Bailey (Public Justice of Oakland, CA.), Stephen Morrison (Partner; Nelson, Mullins, Riley & Scarborough, South Carolina), Robert Weiner (Partner; Arnold and Porter) and Richard Zitrin (Prof. of Law, Univ. of California, Hastings).

The bill (S. 2449) specifically seeks to prevent settlement restrictions on product evidence gathered during the discovery process of a civil case. While the legislation does seek to protect trade secrets and personal information, two issues raised at the Hearing, the bill entered by Senator Kohl (D. Wis.) endeavors to make product performance information and evidence of any knowledge by the maker of the problems freely available as a means of informing and protecting consumers.

Judge Anderson discusses at length the effect of similar state legislation in South Carolina and how, until the passage of that law, many judges felt obligated to approve these ‘secret’ settlement agreements.

This is an interesting Hearing on a fascinating and often overlooked aspect of government secrecy.

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