Two “sunshine” bills designed to make federal courts more open to the public by providing for cameras in courtrooms and reducing the number of sealed cases and settlements continued their journey through Congress when the Senate Committee on the Judiciary approved both bills on March 6, 2008.
The Sunshine in the Courtroom Act
The Sunshine in the Courtroom Act, S. 352 and H.R. 2128, authorizes judges in U.S. district courts and appellate courts, including the Supreme Court, to allow still photography, video recording, and audio recording during court proceedings. Sen. Chuck Grassley (R-Iowa) introduced S. 352 in January 2008 and it passed the Judiciary Committee two months later. The House version of the bill passed through committee in October 2007. (See “Court Access: Federal Law would Allow Cameras in U.S. Courts” in the Fall 2007 issue of the Silha Bulletin.)
Both versions allow the senior appellate judge on a panel, or the chief judge for an appellate court sitting en banc, to permit cameras in appellate court proceedings. The proposed bills would authorize trial judges to allow cameras in proceedings over which they preside, but according to Sens. Grassley and Charles Schumer (D-N.Y.), the chief judge in each judicial district could ban cameras from any proceeding in that district.
The bills authorize witnesses to request that their identities be obscured and require that courts prohibit filming jurors.
The Senate version requires that the Judicial Conference of the United States promulgate guidelines governing procedures for allowing cameras in federal courts. The House version authorizes, but does not require, procedural rules.
Both bills await a vote before the full House and Senate.
The Sunshine in Litigation Act
The Sunshine in Litigation Act, S. 2449 and H.R. 5884, prohibits court orders sealing information discovered in preparation for litigation that relates to public health and discourages enforcement of settlement agreements that would have a similar effect. The bill, designed to make it more difficult for companies to conceal information concerning defective or dangerous products, was introduced in the House on April 23, 2008 after the Senate version passed through the Judiciary Committee on March 6.
Under the proposed bill, information “relevant to the protection of public safety” that is not “outweighed by a specific and substantial interest in maintaining” confidentially could not be sealed by a federal court. The Silha Center submitted comments supporting a stricter local rule adopted in the District of South Carolina in 2002. (See “U.S. Court Rulings Affecting Access to Information: South Carolina District Court Bans Secret Settlements” in the Fall 2002 Silha Bulletin.)
The bill would eliminate unnecessary secrecy concerning information relevant to public health or safety at three phases of litigation. It prohibits federal courts from issuing protective orders under Rule 26(c) of the Federal Rules of Civil Procedure covering such information discovered during the pre-trial phase of litigation; it would ban approval or enforcement of settlement agreements restricting disclosure of such information; and it would prevent courts from sealing civil court records containing such information.
Even if both parties to a settlement agreement stipulated that access to information related to public health or safety should be restricted, the court would be required to perform the balancing test. If the interest in confidentiality does not outweigh the interest in disclosure, the court must refrain from approving the settlement agreement, the bill says.
According to a press release issued April 23 by the sponsors of the bill in the House, Robert Wexler (D-Fla.) and Jerrold Nadler (D-N.Y.), the bill would prevent manufacturers of defective toys, automobile parts, pharmaceuticals, and other products from covering up litigation related to their products by agreeing to settle cases on the condition that the plaintiffs keep the defect and result of the litigation confidential.
As an example, the press release points to the now-widely publicized Firestone tire defects that led to a massive recall in 2001. The release said that between 1997 and 2001 Firestone settled disputes related to 271 fatalities “behind closed doors” before finally recalling 6.5 million defective tires. According to the release, the Sunshine in Litigation Act would prevent Firestone from hiding the defects in the tires from the public.
The House and Senate versions of the bill are nearly identical except for a “rebuttable presumption” of confidentiality related to “personally identifiable information” in the newer House version of the bill. The proposed bill makes personally identifiable information presumptively confidential unless the public interest in disclosure outweighs the personal interest in confidentiality.
In addition to public safety issues implicated by such secret settlements, they also pose ethical issues for attorneys. According to a November 2002 article in the Media Law Letter by Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, attorneys have a duty to zealously represent their clients. That means attorneys must sometimes settle cases even where the settlement may cause harm to the public.
That creates an ethical conflict for attorneys that bar organizations have been reluctant to remedy. The Sunshine in Litigation Act, if adopted, would help keep attorneys out of the ethical dilemma secret settlements create.
The House version of the bill has been referred to the Committee on the Judiciary. The Senate has not acted on the bill since it was passed by the Judiciary Committee on March 6.
– Michael Schoepf
Silha Research Assistant