By Richard Zitrin, Lecturer in Law, University of California, Hastings College of the Law. This is the third in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read other posts in a debate about the bill here.
ABA President Stephen Zack’s criticism of the Sunshine in Litigation Act (S. 623, “SILA”) not only gets the facts wrong, but completely misses the point. First and foremost, while Mr. Zack complains that Congress, not the courts, should be changing discovery procedures, he says not a word about the substantive issue: Hundreds, indeed thousands, of lives are lost because parties to lawsuits are able to keep secret crucial information about substantial dangers to the public. Mr. Zack says not a single word to refute or even question this. So, what exactly is so “successful” about a rule that allows that grave harm?
As for the facts:
Mr. Zack blames Congress for ignoring judges’ views on this issue: “Wouldn’t you ask the referees what they thought?” Actually, Congress did exactly that. Early on, Senate staff consulted the federal judge most familiar with the issue of secrecy in the courts, Hon. Joseph F. Anderson, Jr., former Chief Judge of the District of South Carolina. While Chief from 2000 to 2007, Judge Anderson came to understand the impact of secrecy on public safety, developed a local rule of court to address the issue, held a national symposium on secrecy in Columbia, South Carolina, and wrote compelling and learned articles on the subject. He also testified on the Sunshine in Litigation Act at the Senate Judiciary Committee hearing.
But, complains Mr. Zack, “usually” (though, notably, not always), the federal judiciary as a whole set rules of procedure. True enough, but on this subject at least, the judicial conference committees that have spoken (they do not speak for the conference or federal judges as a whole) have understood this issue poorly, their comments tainted by misunderstandings and misinterpretations of current law. Mr. Zack apparently shares those misunderstandings. For example:
1. According to Mr. Zack, one committee states that the Sunshine Act will “impose on all cases [about public health and safety] costly and time-consuming requirements.”
FALSE. S. 623 actually substantially reduces both cost and judicial workload. The way it is now, every single proposed protective order, including those that are stipulated to just for the sake of secrecy, must be approved by a judge. Either the judge merely rubber stamps the stipulation – neither helpful nor useful – or s/he must conduct a substantive hearing. Even rubber-stamping requires some minimal judicial effort; real hearings on substance require much more.
Under S. 623, stipulated orders in cases involving public safety are no more, unless and until the parties believe that the narrow requirements of the bill’s exceptions justify them moving to request a judge’s independent findings. This means a significant decrease in workload.
2. Mr. Zack argues that every case involving public health and safety will “cost every party more time and money” by virtue of “these expensive new rules.”
FALSE. Under the plain language of the Act, in most cases there will be no motions or orders at all over the issue of discovery openness, because the bill forbids it except in very limited circumstances.
3. Mr. Zack, again quoting a misguided conference committee, suggests that “’some plaintiffs might abandon their claims rather than risk public disclosure of highly personal information.’”
NONSENSE. No sensitive information will be disclosed, as Section (d) of the bill explicitly states: The presumption is 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.” Apparently, Mr. Zack did not read the whole bill.
4. Mr. Zack argues that the bill’s language is “dangerously unclear and broad.” But this too is false. The standard (cases whose pleadings “state facts that are relevant to the protection of public health or safety”) is clear as a bell. Meeting this standard doesn’t throw a case into chaos, as Mr. Zack implies. It simply means that in such cases, care is taken to avoid secrecy.
Finally, though, Mr. Zack does get one thing right: “Many lawyers and litigants … aren’t wild about the changes.” You bet they’re not. No longer will they be able to bury discovery in return for “hush money.” No longer will plaintiffs’ lawyers get premium settlements (and premium fees) for helping defense lawyers maintain radio silence about their clients’ defective products.
Maybe it’s time for Mr. Zack and the American Bar Association to rethink their position, and look at public protection instead of lawyer-protection.
[image via Kevin Thomason]
S. 623
What does the plaintiff's bar have to say about it?
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