Senators Herb Kohl, D.-Wis., and Lindsey Graham, R.-S.C., recently introduced the “Sunshine in Litigation Act of 2009.” The proposed bill, S. 537, would require courts to weigh the “public interest in the disclosure of potential health or safely hazards” against the privacy interests of the parties to litigation. A protective order could be issued only if a court makes findings of fact that a protective order would not restrict the disclosure of information relevant to the protection of public health and safety, or that the public interest in such disclosure is outweighed by a “specific and substantial interest” in maintaining confidentiality. In addition, the court would have to find that the requested protective order is no broader than necessary to protect the privacy interest asserted.

As quoted in the Congressional Record, Mr. Kohl asserts that the bill is necessary to “curb the ongoing abuse of secrecy orders in the Federal courts,” particularly with respect to product liability litigation. He cites confidentiality agreements included in the settlement of multiple lawsuits regarding the alleged tread separation of Bridgestone and Firestone tires as an example of such “abuse,” and argues that such agreements led to numerous additional deaths and injuries that could have been prevented had protective orders not been issued. According to Mr. Kohl, the proposed legislation would not prohibit secrecy agreements or place an undue burden on judges, but simply require that “where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public.”