June 4, 2009 -

Mr. Chairman, I want to thank the witnesses for their testimony today regarding H.R. 1508, the “Sunshine in Litigation Act.”

Under Rule 26(c) of the Federal Rules of Civil Procedure, during discovery, a trial judge may exercise great discretion in issuing an order “which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”  The judge may order that no disclosure or discovery may be had in certain areas, or only on certain terms and conditions.  The judge may also deny a protective order altogether.

H.R. 1508 is the latest legislative proposal to change Rule 26(c).  In general, the bill greatly limits the discretion that a judge may exercise in granting a protective order by forcing the court to determine whether each piece of discoverable information is relevant to the protection of public health or safety.   As a practical matter, H.R. 1508 essentially compels each trial court to become a documents clearinghouse that will undoubtedly compromise the property and privacy interests of litigants.       

This legislation is opposed not only by the business community, but the Federal Judiciary and the American Bar Association as well.  And while we have yet to hear from the Department of Justice this year, the Bush Administration's Department of Justice also opposed this bill.

Mr. Chairman, at this time I ask unanimous consent that opposition letters from the American Bar Association and the Coalition to Protect Privacy, Property, Confidentiality, and Efficiency in the Courts be entered into the record.

These groups oppose this bill first because it circumvents the regular order for promulgating changes to the Federal  Rules of Civil Procedure prescribed by the Rules Enabling Act.

The Rules Enabling Act has worked well through the years because it is premised on the logical presumption that the courts are the institutional experts when it comes to understanding how Rules of Procedure are best developed and implemented.   I currently see no reason to abandon that process for the dramatic changes contemplated by H.R. 1508. 

This bill would also increase the burden and cost of litigation.  If confidentiality and privacy are not protected, litigants will be forced to oppose any document request that an opposing party makes for information which may be sensitive or confidential.

It also forces judges to make findings of fact every time a protective order is requested.  As Judge Kravitz wrote in his  testimony from a previous hearing, “requiring courts to review discovery information to make public health and safety determinations in every request for a protective order, no matter how irrelevant to public health or safety, will burden judges and further delay pretrial discovery.”

Mr. Chairman, I believe that this is a bad bill and that there exists no empirical evidence demonstrating its necessity. 

It compromises the legitimate property and privacy interests of plaintiffs and defendants in our federal court system while generating unnecessary expense and delay. 

Again, I thank the witnesses for their participation today and I yield back the balance of my time.