Federal Judiciary Opposes Bill Involving Discovery and Settlements

A bill intended to prevent parties from using the federal judicial process to conceal matters that harm the public health or safety circumvents the prescribed method of changing court rules, a federal judge told a congressional subcommittee.

U.S. District Judge Mark Kravitz of Connecticut testified in behalf of the Judicial Conference of the United States before the House Subcommittee on Commercial and Administrative Law. He chairs the Conference’s Advisory Committee on Civil Rules.

Kravitz said the Conference opposes the Sunshine in Litigation Act of 2008 (H.R. 5884) “on the ground that it effectively amends the Federal Rules of Civil Procedure outside the rule-making process,” contrary to federal law. “Direct amendment of the federal rules through legislation, even when the rule-making process has been completed, circumvents the careful safeguards that Congress itself established,” he said.

The bill at issue would impose requirements on federal judges for sealing certain materials in the discovery process. A judge asked to enter such an order would be required to find that the information obtained through discovery is not relevant to the protection of public health or safety, or, if it is relevant, that the public interest in the disclosure of potential health or safety hazards is outweighed by the public interest in maintaining the confidentiality of the information. The judge also would have to find that the sealing is no broader than necessary to protect the privacy interest asserted.

Likewise, the bill would require a judge asked to approve a settlement agreement to be make similar findings about the approval order.

Although the Judicial Conference has not taken a formal position on the specific provisions of the bill, its Rules Committee did not recommend making such changes to existing rules. The committee found that the legislation is unnecessary, would make litigation more expensive, and would impose “an intolerable burden on the courts.”