S. 2364 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2364 IN THE SENATE OF THE UNITED STATES May 20, 2014 Mr. Blumenthal (for himself, Mr. Graham, Mr. Leahy, Mr. Whitehouse, and Mr. Markey) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend chapter 111 of title 28, United States Code, relating to protective orders, sealing of cases, disclosures of discovery information in civil actions, and for other purposes. 1. Short title This Act may be cited as the Sunshine in Litigation Act of 2014. 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: 1660. Restrictions on protective orders and sealing of cases and settlements (a) (1) Except as provided under subsection (e), in any civil action in which the pleadings state facts that are relevant to the protection of public health or safety, a court shall not enter, by stipulation or otherwise, an order otherwise authorized 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 unless in connection with such order the court has first made independent 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 past, present, or 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 order is no broader than necessary to protect the confidentiality interest asserted. (2) No order entered as a result of the operation paragraph (1), other than an order approving a settlement agreement, may 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) continue to be 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) A court shall not approve any party’s stipulation or request to stipulate to an order that would violate this section. (b) (1) In any civil action in which the pleadings state facts that are relevant to the protection of public health or safety, a court shall not approve or enforce any provision of an agreement between or among parties, or approve or enforce an order entered as a result of the operation of subsection (a)(1), to the extent that such provision or such order 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 one or more parties from— (A) disclosing the fact that such settlement was reached or the terms of such settlement, other than the amount of money paid; or (B) discussing a civil action, or evidence produced in the civil action, that involves matters relevant to the protection of public health or safety. (2) Paragraph (1) applies unless the court has made independent findings of fact that— (A) the public interest in the disclosure of past, present, or potential public health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information or records in question; and (B) the requested order is no broader than necessary to protect the confidentiality interest asserted. (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— (1) shall prohibit a court from entering an order that would restrict the disclosure of information, or an order restricting access to court records, if in either instance such order is necessary to protect from public disclosure— (A) information classified under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; or (B) intelligence sources and methods; or (2) shall be construed to permit, require, or authorize the disclosure of information that— (A) is classified under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; or (B) reveals intelligence sources and methods. . (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. . 3. Effective date and application The amendments made by this Act shall— (1) take effect 30 days after the date of enactment of this Act; (2) apply only to orders entered in civil actions or agreements entered into on or after the effective date of this Act; and (3) not provide a basis for the— (A) granting of a motion to reconsider, modify, amend or vacate a protective order or settlement order entered into before the effective date of this Act; or (B) reversal on appeal of a protective order or settlement order entered into before the effective date of this Act.