Two U.S. senators introduced a bill on May 20 that would make it harder to seal court records in public safety cases. This bill was prompted by settlements of several lawsuits over defective ignition switches in General Motors (GM) vehicles. In those cases certain details pertaining to the defects were kept confidential. U.S. Sens. Richard Blumenthal, D-Conn., and Lindsey Graham, R-S.C., proposed the “Sunshine in Litigation Act of 2014.” If passed, federal judges would be compelled to weigh the public’s interest before sealing court records in cases involving public health and safety. These Senators should be commended for taking this action.
As our firm knows, GM reached “secret settlements” of lawsuits over defective ignition switches in its cars going back to 2005. As a result of “confidentiality agreements,” GM was able to conceal knowledge from the public about the dangers they posed. The ignition switches, which were recalled in February, have according to the Center for Auto Safety caused at least 300 deaths to date. Sen. Graham had this to say:
As the federal investigation narrows in on whether GM deliberately concealed its knowledge of the defect, it is important to note that had this legislation been passed a decade earlier, more people would have been aware of the threats to safety posed by the recalled GM vehicles, and deaths could have been prevented.
Current federal court rules allow the use of protective orders in lawsuits to shield large amounts of health and safety information from the public. That definitely needs to be changed by legislation. Victims’ families, in most cases, can’t afford to lose the opportunity for a settlement and have to agree to confidentiality. Sen. Blumenthal was correct when he said:
The courts must be stopped from complicity in hiding lifesaving information. By sealing court records of lawsuit settlements that show serious safety defects, judges are aiding and abetting more deaths, injuries and danger. Too often in product liability cases, victims are pressured to pay for a settlement with their silence, even when public interest outweighs corporate confidentiality.
The proposed bill would create a presumption against protective orders unless a party requests that a judge make a finding of fact that the public interest in health and safety is outweighed by a specific and substantial interest in maintaining secrecy. The legislation would also bar a court from approving or enforcing any provision that restricts a party to a lawsuit from disclosing public health or safety information relevant to the lawsuit to any government agency with authority to enforce laws regulating related activity. Information disclosed through the legislation would be shared with other courts handling similar cases to avoid covering the same ground in discovery.
It should be noted that the Sunshine in Litigation Act was introduced in 2011 and passed by the Senate Judiciary Committee, but failed to reach the Senate floor.
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