Congress urged to limit court secrecy.

Information discovered in litigation should not be kept secret if it affects the public health and safety, victims of defective products recently told a U.S. Senate subcommittee.

Attorneys, judges, law professors, and injured consumers--including a breast implant recipient and the parents of a man killed by a defective Ford pickup truck--testified in April before the Subcommittee on Courts and Administrative Practice of the Senate Judiciary Committee. The subcommittee is considering a bill that would prevent judges from sealing court records that contain information "relevant to the protection of public health and safety."

"Because the courts are public institutions funded by hundreds of millions of tax dollars and because justice is a public good, our court system must do its part to help protect the public when appropriate," said Sen. Herb Kohl (D.Wis.), the bill's sponsor. Kohl said protective orders shielding discovery materials and secrecy agreements reached when cases are settled constitute a "cover-up" that keeps vital safety information hidden from the public.

"Secrecy is currently the rule rather than the exception, and the public interest receives far too little consideration," Kohl said. His bill would amend Rule 26(c) of the Federal Rules of Civil Procedure and would allow protective orders only when a judge has found that no public health or safety information would be concealed.

Sybil Goldrich, a breast implant recipient from Beverly Hills, California, and a founder of the Command Trust Network, an information clearinghouse for women with implants, said studies discovered in a 1984 lawsuit revealed the hazards of silicone-gel implants. That evidence was not disclosed to consumers or federal regulators because the plaintiff accepted and the judge approved a secret settlement. The U.S. Food and Drug Administration did not know enough about the risks of implants to restrict their use until 1992.

The secrecy agreement "changed the lives of the nearly 1 million women who received breast implants in the 1980s," said Goldrich, who has cancer.

Attorney Gerry Spence of Jackson, Wyoming, told the subcommittee that lawyers feel compelled to sign secrecy agreements for the benefit of their clients, who need settlement funds to cover medical and other injury-related expenses. "We don't have a justice system," Spence said. "The courts act as the money changers, signing agreements that allow the hush money to be paid."

Others testified that the law would create more problems than solutions. Elizabeth du Fresne, a Miami lawyer, said the bill could result in the disclosure of legitimately private information about people and businesses. She added that judges facing massive court backlogs don't have time to carefully review the facts of every request for a protective order or secret settlement.

Fifth Circuit Judge Patrick Higginbotham, chair of the U.S. Judicial Conference Advisory Committee on Civil Rules, agreed that Kohl's bill would add to judges' already heavy workloads. He told the senators that the advisory committee has proposed amending Rule 26(c) "to make it clear that judges have the power, authority, and responsibility to dissolve these orders when it is in the public interest to do so." He urged the Congress to allow changes to be made through the Judicial Conference's usual rulemaking process.

Abner Mikva, Chief Judge of the District of Columbia Circuit, acknowledged that the bill would increase trial judges' workloads but added that most judges would see the change as "a necessary responsibility to balance the public interest in knowing what is going on against the private interest in confidentiality. In any event, it is a necessary burden for the courts to perform as the public institutions that they are."

Kohl's bill is the Sunshine in Litigation Act of 1993. (S. 1404.)