By Stephen N. Zack, President, American Bar Association. This is the second in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read other posts in a debate about the bill here.
If you were going to change the rules to a game to make them fairer, wouldn’t you ask the referees what they thought?
Unfortunately, Congress has not. They are considering changes to important rules regarding litigation. Disregarding the longstanding, successful process of court rules-making, however, this bill undercuts the third branch of government, threatens to raise court costs, and may even close off access to justice. All this without accomplishing what it really intends to do.
It’s ironic that something called the “Sunshine in Litigation Act” doesn't involve the judiciary, in order to shed light on the issue. Judges know what problems exist in their courts and are best positioned to solve them. That’s why it is usually a wise, standard procedure to have the third branch of government set rules that address issues in the courts. But this measure avoids what usually works well, and instead would issue a legislative fiat about discovery protective orders.
If the courts were consulted, it would quickly become clear that the bill language is dangerously unclear and broad. As two Judicial Conference committees write in their letter of opposition to the Senate, Congress’ demands would lead to more confusion, not less, regarding what information has to be released, and when “…The provisions defining the scope of S 623 are problematic,” the conference warns, adding the standard in the law “is so broad and indefinite that it will either sweep up many cases having little to do with public health or safety and impose on all these cases the costly and time-consuming requirements of S. 623, or require the parties and court to spend extensive time and resources litigating whether the statute applies.”
So, what is clear is that each court case falling under the shadow of these new rules would cost every party more time and money.