ABA Letter to Senate Says ‘Sunshine in Litigation Act,’ Would Make Access to Courts a ‘Luxury Item’

EDITOR'S NOTE: This is part of a series of posts about the proposed Sunshine in Litigation Act of 2011. Read guest posts debating the bill here.

Tomorrow the Senate Judiciary Committee will consider the “Sunshine in Litigation Act of 2011,” relating to the disclosure of information relevant to public health or safety that surfaces in civil actions. The bill’s merits have been discussed at length in an ACSblog guest blog post from the American Bar Association (ABA) President Stephen N. Zack and two guest posts from Richard Zitrin, lecturer in law at the University of California, Hastings College of the Law.

In his guest post, Zack faulted the bill, S. 623, as poorly thought out, and one that would, if enacted, greatly hinder the ability of Americans to access the courts. “The ABA is deeply concerned that seeking a day in court will become a luxury item if courts and cases can’t operate with greater efficiency and speed. Problems with federal judicial vacancies and court underfunding already wreak havoc with case schedules and the resulting time it takes to resolve a dispute. These expensive new rules would cost everyone, and make access justice even more of a luxury item.”

Zitrin in his initial guest post lauded the bill as a long overdue measure to ensure that information about defective products and drugs discovered during civil cases becomes quickly available to the public. In a response to Zack’s criticism of the measure, Zitrin followed up with this guest post, faulting the criticism for missing the point and for not addressing the substantive issue the measure is intended to address.

Thomas M. Susman, director of the ABA’s Governmental Affairs Office told ACSblog, “Professor Zitrin recently mistakenly wrote that the ABA does not have substantial objections to S. 623, the Sunshine in Litigation Act. In fact, today the ABA sent a detailed letter outlining its serious concerns regarding the impact of this bill.”

The ABA’s letter to the Senate Judiciary Committee is available here.

The 12-page letter to the Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley builds the case that the Sunshine in Litigation Act, like similar efforts before it, would amend current civil procedural rules to the detriment of litigants and cases.

The letter reads, in part:

Bills that would amend the Civil Rules to regulate the issuance of protective orders in discovery, similar to S. 623, have been introduced regularly since 1991. Like S. 623, these proposed bills would require courts to make particularized findings of fact that a discovery protective order would not restrict the disclosure of information relevant to the protection of public health and safety.

Under the rules Enabling Act, the Rules Committees studied Rule 26 (c) to learn about the problems that these bills seek to solve and to bring the strengths of the Rules Enabling Act process to bear on any problems that might be found. Under the process, the Committees carefully examined and reexamined the issues, reviewed the pertinent case law and legal literature, and initiated and evaluated empirical research studies. The Committees’ work led to the conclusions that: (1) there was no evidence that discovery protective orders create any significant problem of concealing information about safety or health hazards from the public; (2) protective orders are important to litigants’ privacy and property interests; (3) discovery will become more burdensome and costly if parties cannot rely on protective orders; (4) administering a rule that adds conditions before any discovery protective order could be entered would impose significant burdens on the court system, resulting in increased delay and costs for litigants; and (5) such a rule would have limited impact because much information gathered in discovery is not filed with the court and is not publicly available.”