The Confidentiality Debate and the Push to Regulate Secrecy in Civil Litigation

Laurie Kratky Doré, Professor of Law, Drake University Law School

Laurie Kratky Doré © 2000

Executive Summary

After defining the broad categories of "secrecy orders" that have sparked vigorous debate among judges, academics and practitioners, Professor Doré generally characterizes the competing camps in the debate as "Confidentiality Proponents" and "Public Access Advocates." She uses those terms throughout this paper in describing arguments made by both camps, taking care, however, to emphasize that the lines of debate are not perfectly sharp and that they reflect *roader systemic tensions in the civil justice system itself."

Turning to the content of the debate, Professor Doré discusses the pressures to settle, not adjudicate, cases (arising from crowded dockets and the chronic lack of judicial resources). Settlement, however, does not provide the "public" goods that come from full adjudication -- like open public debate and judicial precedent. This emphasis on settlement tends to favor secrecy as a method of facilitating compromise, but the two camps divide over how great a contribution to resolution secrecy actually makes. There is also disagreement as to the essential function of civil courts -- whether they serve principally to resolve private disputes or to protect very broad public interests. Finally, the "ownership" of the litigation must be considered. Should the parties be permitted to dispose of their case as they like, or does its presence in a public forum alter its private nature?

Responses to the assertions that there is a secrecy crisis, and to the public debate over it, have been varied. The status quo is to commit the matter to the discretion of trial court judges and to trust in their ability to reconcile private and important public interests as well as to manage their own dockets. Existing "good cause" requirements in courts rules can be and are invoked for this purpose. Some jurisdictions have adopted either specific court rules relating to secrecy or even statutes governing the matter. Their breadth and strength vary, and they have not yet engendered substantial appellate review or empirical study. Thus their effectiveness is hard to measure. Other jurisdictions have taken a common law approach, formulating criteria for secrecy orders but leaving their application to judges.

In her conclusion, Professor Doré advocates accommodation of the competing interests through a *unctional" approach that reflects the ideal of the open court. The hurdle to be cleared by confidentiality proponents, she argues, should reflect the type of protection sought by litigants, the nature of the information to be protected, and the extent to which that information plays a role in the central dispute-resolving function of the courts. This, she believes, is preferable to the "one size fits all" approach that is implicit in some court rules and statutory approaches.

I. "Secrecy Orders:" The Subject of the Debate

Secrecy orders and agreements can occur at virtually every stage of a civil lawsuit, and can govern a wide spectrum of arguably confidential or private information.[1] At the inception of many lawsuits, stipulated "umbrella" protective orders permit the parties to self-designate discovery as *onfidential," to restrict its dissemination, and to require its return or destruction upon resolution of the controversy. During the progress of a lawsuit, litigants may request that pleadings, discovery, exhibits, and even docket entries and judicial opinions be filed under seal. Parties may settle civil lawsuits pursuant to a confidentiality agreement that encompasses not only the amount and terms of the compromise, but also the underlying facts upon which it was premised. Even court decisions and jury verdicts may be Þpublished" or reversed by stipulation as a condition of a post-trial settlement pending appeal.[2]

These secrecy orders and confidentiality agreements have generated vigorous and often heated debate in legal, political, and media arenas since the early 1990s. This paper describes the continuing controversy concerning the appropriate use and limits of confidentiality in the conduct and settlement of civil lawsuits. Part II discusses the background and content of the confidentiality debate. Part III explores the various legislative and common law responses that controversy has generated. In Part IV, I depart briefly from my primarily descriptive assignment and conclude by suggesting a functional construct that may aid judges in assessing whether to issue, modify, or vacate secrecy orders.

II. The Confidentiality Debate

A. The Players: Confidentiality Proponents vs. Public Access Advocates

At the risk of over-simplifying the multi-faceted discussion concerning secrecy orders, the participants in what I term the *onfidentiality debate" can be painted with broad brushstrokes into two competing camps. On one side of the debate are the *onfidentiality Proponents." These judges, lawyers, and academics highly value the use of confidentiality in achieving settlement and believe that judicial discretion, as it currently exists, can adequately account for and accommodate the competing private and public interests implicated when secrecy issues arise during the course of a civil lawsuit. The Confidentiality Proponents thus oppose any attempt to further cabin or restrict judicial discretion or party autonomy concerning litigation confidentiality.[3]

On the other side of the debate are what I have dubbed the "Public Access Advocates." These judges, lawyers, and academics believe that the status quo (unfettered judicial discretion) fails to adequately protect the public's legitimate interest in much contemporary civil litigation. They decry court secrecy as contrary to the tradition of public access to judicial proceedings and, more importantly, as hazardous to public health and safety. The Public Access Advocates thus seek to further regulate (and limit) what they perceive as an escalating incidence of secrecy in the courts.[4]

B. Is There A Secrecy Crisis in Our Courts?

Before examining the content of the confidentiality debate, one must initially explore whether there is, in fact, a dangerous excess of secrecy in our civil court system. Public Access Advocates often cite high profile product liability and toxic tort cases as evidence of a secrecy crisis that jeopardizes public health and safety.[5] In contrast, Confidentiality Proponents dismiss these claims as anecdotal, empirically unsubstantiated, and myopically focussed upon product liability cases that account for only a small percentage of secrecy orders.[6]

The paucity of empirical studies concerning secrecy orders, however, makes it virtually impossible to confirm or deny the existence or extent of any secrecy crisis that may be plaguing our courts. A study conducted by the Federal Judicial Center concerning the extent of protective order activity does appear to contradict the claim that federal courts perfunctorily issue stipulated protective orders that endanger public health and safety. In the three federal judicial districts studied, protective orders were sought in only about five to ten percent of all civil cases, most of which were contract or civil rights cases. Further, approximately one-half of all motions for protective orders were contested and about sixty percent of all requests for protective orders were partially or completely denied.[7]

The limited scope of the FJC Study, however, dealing exclusively with protective orders governing unfiled discovery in a handful of federal districts, should make one hesitant to draw any firm conclusions concerning the extent of such activity in state courts or the incidence of secrecy activity concerning materials other than unfiled discovery. Moreover, a cumulative body of even *necdotal" evidence, particularly if it suggests a threat to public health or safety, certainly justifies a deeper probe of the arguments made for and against secrecy orders.

C. The Content of the Confidentiality Debate

Of course, the dramatis personae of this debate are not the black and white warring factions that the above-generalized description might suggest; nor can the disagreements between them fairly be described as entirely pro-secrecy or anti-secrecy platforms. In actuality, the debate consists of more subtle arguments that reflect broader systemic tensions in the civil justice system itself -- tensions that contribute to and more accurately frame the confidentiality debate.

1. Settlement vs. Adjudication[8]

Settlement has replaced adjudication on the merits as the primary focus of most civil litigation today. Indeed, judges today actively promote (and sometimes even strong-arm) such settlement. This trend reflects, at least in part, the long-standing and increasingly strong public policy favoring the private settlement of disputes.[9] To many, however, this push toward settlement comes at a significant cost. "Public goods" previously associated with adjudication (such as judicial precedent and public debate) are lost when cases settle and non-parties affected by a dispute are entirely cut out of its resolution.[10]

The value one places upon settlement, as opposed to adjudication, affects one's willingness to sanction secrecy as a method of achieving compromise. Confidentiality Proponents, for instance, argue that confidentiality facilitates the efficient disposition of lawsuits and, in many cases, is critical to achieving settlement. Confidentiality, they argue, conserves scarce judicial and party resources by facilitating the cooperative exchange of discovery and by minimizing court involvement. Any reduction in the availability or reliability of secrecy orders, they continue, will jeopardize these savings by making litigants reluctant to voluntarily disclose "private" or "proprietary" information in discovery, to establish settlement benchmarks for future, related cases, or to settle frivolous, high profile claims. In short, Confidentiality Proponents argue that any restriction upon secrecy orders will hinder the settlement process and further burden an already overburdened court system.

In contrast, Public Access Advocates question how essential confidentiality really is to most settlements and posit that settlements will occur without secrecy given the expensive, time-consuming, and risky alternative of a trial. Indeed, they contend that increased public access to discovery and judicial records enhances efficiency in the long-run by avoiding the multiplication of expense and the relitigation of issues in future, related lawsuits. In any event, the public benefits that flow from increased access to civil proceedings should override mere "housekeeping" concerns like judicial efficiency and resources. Thus, while they admittedly cannot wholly eradicate settlements, Public Access Advocates attempt to achieve some of the "public goods" of adjudication by facilitating public access to the increasingly prevalent pretrial and settlement process.

2. The Judicial Function[11]

The confidentiality debate reflects a further systemic dispute concerning the primary judicial function. Confidentiality Proponents perceive the civil justice system as a public service for private dispute resolution. Under this view, courts perform primarily a problem-solving function and, accordingly, should be willing to sanction confidentiality if doing so will assist the litigants in this endeavor. Unlike executive or legislative bodies, courts are not principally charged with disseminating information for public consumption, formulating major social policy, or regulating public health or safety. Efforts to restrict litigation confidentiality or enhance public access thus obscure the primary judicial task and improperly transform the courts into consumer watchdogs or information clearinghouses. Such a transformation, Confidentiality Proponents further argue, might motivate some litigants to utilize courts for reasons less altruistic than public protection or for purposes other than resolution of the dispute at hand -- to exploit discovery for use in other cases, to institute strike suits, to circumvent regulatory channels, to solicit business, or to foment adverse publicity. In short, Confidentiality Proponents fear that anti-secrecy reforms will supplant the courts' principal adjudicative role with what previously have been considered mere collateral benefits.

Not surprisingly, Public Access Advocates often adhere to a very different conception of the judicial function. They generally perceive courts as public institutions that are accountable to, and guardians of, a broader public interest. That is, courts serve interests beyond those of the individual litigants and play a role beyond resolution of the case at hand. Courts additionally explicate public values and protect the interests of non-parties and the public at large. More cynically, Public Access Advocates view courts as a last defense when the executive and legislative branches fail (or refuse) to protect the public interest. As representatives and guardians of the general public, courts should thus oppose even stipulated requests by litigants to shield information that is of public interest or that is relevant to public health and safety.

Public Access Advocates tend to doubt whether courts are capable of or willing to fulfill this public function, however. Whether for lack of resources, reluctance to disturb the parties' mutual resolution, or administrative interest in clearing congested dockets, they question whether courts adequately account for or protect the broader public interest in deciding whether to issue, modify, or vacate secrecy orders. Public Access Advocates thus support reforms aimed at constricting judicial discretion in this regard and at reducing the level of secrecy in the courts. In this way, similarly situated plaintiffs, future victims, regulatory authorities, and the media might gain timely access to information concerning a defendant's possible wrongdoing, a product defect, or other public hazard.

3. Party Autonomy -- Whose Lawsuit Is It?[12]

Secrecy orders generally provoke little controversy when issued to protect intimate personal information or bona fide trade secrets. Positions vociferously divide, however, concerning secrecy orders that are issued to protect commercial litigants *rom annoyance, embarrassment, [or] oppression," or to restrict public disclosure of *onfidential research, development, or commercial information" not amounting to a trade secret.[13] Confidentiality Proponents argue that litigants, even commercial litigants, do not abandon their privacy rights when they enter the courthouse doors and that the exceedingly broad scope of discovery necessitates a correspondingly liberal use of protective orders. Public Access Advocates counter that individuals alone -- not corporate litigantsÊn suffer *mbarrassment" necessary to justify a secrecy order and that only a particularized and weighty showing of good cause for confidentiality can override the public's interest in access. How one ultimately resolves these privacy questions often reflects one's response to the more fundamental issue of who "owns" a dispute once the parties resort to the publicly subsidized court system for its resolution.

Our party-initiated, party-controlled, and party-centered civil justice system places a high premium on litigant autonomy. Confidentiality Proponents tend to adopt this proprietary view of a lawsuit and contend that litigants should be permitted to control and dispose of "their" private dispute in any mutually agreeable manner. This autonomy includes the ability to utilize stipulated protective orders, sealing orders, and confidentiality orders and agreements when mutually deemed necessary to expedite litigation or achieve settlement. Confidentiality Proponents argue that unless parties can rely upon confidentiality agreements and stipulated secrecy orders, litigants may either abandon meritorious claims or opt out of the public court system altogether in favor of private dispute resolution.

In contrast, Public Access Advocates often adopt more of a public ownership stance toward civil litigation. The public creates and heavily subsidizes the civil justice system and, accordingly, has an interest in observing and monitoring that system in order to ensure its proper functioning. Public access to a major component of that process -- pretrial activities and settlement -- serves that supervisory function and instills public confidence in "our" court system.[14]

III. Responses to the Confidentiality Debate

The public response to the confidentiality debate varies among jurisdictions and generally takes one of three primary forms. One response argues for the maintenance of the status quo, which places decisions concerning litigation confidentiality in the discretionary and largely unreviewable hands of the trial court. Approximately a dozen states modify this status quo with "sunshine" statutes or rules that legislatively curb judicial discretion concerning secrecy orders. Finally, some courts have self-imposed flexible, but articulated, common law limits on their authority to issue, vacate, or modify such orders.[15]

A. Maintaining the Status Quo: Judicial Discretion and "Good Cause Shown"

Most Confidentiality Proponents adopt an "if it ain't broke, don't fix it" approach to secrecy orders. Courts currently possess broad discretion regarding virtually all types of secrecy orders. The elastic and undefined "good cause" standard of state and federal protective order rules governs confidentiality as it relates to discovery.[16] Courts may seal filed materials after utilizing a balancing approach that assesses whether the need for confidentiality outweighs the rebuttable presumption of public access to judicial records and proceedings.[17] Parties themselves may privately contract for confidential settlements, but must show good cause when seeking a confidentiality order from the court concerning their compromise.[18]

Confidentiality Proponents argue that litigation confidentiality is an issue best committed to the sound discretion of trial courts who must flexibly fashion confidentiality orders on a case-by-case, issue-by-issue basis. The flexible "good cause" standard, they contend, already authorizes courts to consider potential public and non-party interests when deciding whether to issue, modify, or vacate secrecy orders. Legislative efforts to channel or restrict this broad discretion thus unnecessarily jeopardize the intricate balancing of case-specific interests that trial courts perform best.

B. Sunshine Statutes and Rules

Public Access Advocates contend that courts are unlikely to veto the parties' mutual resolution of a controversy and are ill-equipped, over- worked, or too self-interested to consider the public interest when deciding whether to issue, modify or vacate confidentiality orders. This distrust of unguided judicial discretion motivated a series of state and federal initiatives, beginning in the early to mid-1990s, to legislate "sunshine in litigation" reforms. Although all federal[19] and many state efforts ultimately failed, approximately a dozen states did enact some type of anti-secrecy rules governing their courts. Efforts to enact sunshine laws continue, but at a reduced pace.[20]

Sunshine legislation obviously varies by jurisdiction. Texas, which enacted one of the earliest and most sweeping of these reforms, illustrates the statutory or rule-based response to the confidentiality debate. Texas Rule of Civil Procedure 76a creates a presumption of public access to *ourt records," which, in addition to filed documents or pleadings, includes unfiled settlement agreements and unfiled pretrial discovery that "have a probable adverse effect upon the general health or safety, or the administration of public office, or the operation of government."[21] The Texas Rule prohibits the sealing of these *ourt records" unless the party seeking secrecy establishes (1) a "specific, serious, and substantial interest which clearly outweighs" the presumption of public access and any adverse impact on public health or safety, and (2) the absence of any less restrictive alternative than sealing.[22] This substantive balancing test must be undertaken pursuant to numerous procedural safeguards that include public notice and an open hearing in which any interested person may intervene.[23]

Sunshine legislation in most other states is considerably less ambitious than that of Texas (or Florida).[24] Many jurisdictions confine their statutes to the sealing of judicial records.[25] Others speak only to confidential settlements involving a governmental agency[26] or to particular public hazards.[27] Still others narrowly address the sharing of information in specified, related litigation[28] or merely express a hortatory open records policy.[29]

Notwithstanding the controversy surrounding the enactment of these anti-secrecy reforms, they have attracted scant appellate scrutiny or empirical review. It is accordingly difficult to assess whether these reforms have wrought the dire consequences predicted by the Confidentiality Proponents (perhaps because litigants can still mutually manipulate the guidelines) or the improved public health and safety sought by the Public Access Advocates (perhaps because many secrecy orders simply fall outside the statutory parameters).

C. Common Law Sunshine Reform

Concerned with the routine endorsement of stipulated confidentiality orders and a perceived escalation in judicial secrecy, some courts have self-imposed restraints on the issuance and modification of secrecy orders. This common law sunshine reform, illustrated by cases like Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), generally requires a court to expressly find and articulate "good cause" for issuing or maintaining a confidentiality order. In making that assessment, a court must consider public, as well as private, interests, including whether the information is relevant to public health and safety or is otherwise in the public interest, whether any government entity or officer is a party, whether the arguably confidential information would otherwise be subject to a freedom of information request, or whether public access would facilitate discovery sharing in other cases. Although a court may properly consider the litigants' "particularized" reliance upon confidentiality, a general interest in encouraging settlement, standing alone, will not suffice.[30] Courts operating in such a common law sunshine regime appear understandably reluctant to approve stipulated confidentiality orders.

IV. Conclusion: "Good Cause" for Court Secrecy

In my view, both sides of the confidentiality debate make many legitimate points, and courts need not exclusively embrace one view or the other in order to deal with confidentiality issues as they arise during the course of a lawsuit. Instead, courts should accommodate the various competing interests, both public and private, in determining whether and when to override the litigants' mutual desire or need for privacy and the strong, institutional policy favoring settlement.

Elsewhere, I have suggested that courts be guided in this endeavor by a functional approach that uses as its touchstone the primary reason for open courts -- the need for public monitoring of the judicial system and its core adjudicative product. Thus, the level of "good cause" necessary to sustain the entry and continued maintenance of a secrecy order, as well as the appropriate weight accorded the various competing interests, should vary depending upon the nature of the confidentiality order, the information it seeks to protect, and the role those materials play in the court's principal dispute-resolving function.

The discovery process, for example, is (theoretically, at least) a self-regulating process that entails minimal judicial involvement. A great deal of discovery is never filed with, reviewed by, or relied upon by the court in its decision-making. Accordingly, a threshold showing of good cause might suffice for a stipulated protective order governing unfiled discovery entered at the inception of a lawsuit. In contrast, a more onerous and particularized showing of good cause should be required to justify sealing that discovery once it is filed and utilized in connection with non-discovery court proceedings. Likewise, while private factors such as party autonomy, party reliance, and the preference for settlement might be accorded controlling weight in connection with some confidentiality issues, public interests in discovery sharing, public health and safety, or the administration of public office and the operation of government, might trump the litigants' need for secrecy in yet other cases. In the end, the case-specific nature of this balancing approach makes this a task ideally suited and best committed to the sound discretion of the courts.

FOOTNOTES

[1]: This paper draws upon an earlier, more comprehensive article in which I examine secrecy orders and the arguably distinct uses of stipulated confidentiality in civil litigation. See Laurie Kratky Doré, Secrecy By Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre Dame L. Rev. 283 (1999). In that article, I reject a "one size fits all" approach to secrecy orders and, instead, suggest a nuanced judicial approach that assesses protective orders, sealing orders, and confidential settlements in light of the principal objectives underlying the traditional right of public access to judicial proceedings. See infra Part IV.

[2]: Although the United States Supreme Court has restricted the use of stipulated vacatur in federal appellate courts, see United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 25 (1994), the California Supreme Court created a "strong presumption" in favor of the practice. See Neary v. Regents of Univ. of Calif., 834 P.2d 119, 121 (Cal. 1992). Effective January 1, 2000, however, the California legislature has significantly constricted the power of California appellate courts to accept a stipulation to reverse a judgment. See Cal. Ann. Code Civ. P. § 128(a)(8)(B) (West 1999). See generally Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. Rev. 1471 (1994).

[3]: See, e.g., Richard L. Marcus, The Discovery Confidentiality Controversy, U. Ill. L. Rev. 457 (1991); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427 (1991).

[4]: See, e.g., Lloyd Doggett and Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643 (1991); James L. Gilbert, Francis H. Hare, Jr., and Stuart Ollanik, Negotiation and Settlement: The Price of Silence, 30 Trial 17 (June 1994).

[5]: See generally Richard A. Zitrin, The Case Against Secret Settlements (Or, What You Don't Know Can Hurt You), 2 J. Inst. For Study Legal Ethics 115 (1999) (citing cases involving silicone breast implants, prescription drugs Zomax and Halcion, the fungicide Benlate, the Shiley Heart Valve, and GM pickups with side-mounted gas tanks).

[6]: See Miller, supra note 3, at 480 (arguing that reformers overlook the significant number of non-personal injury cases in which protective orders legitimately protect personal privacy and trade secrets).

[7]: See Elizabeth C. Wiggins & Melissa J. Percherski, Federal Judicial Center, Protective Order Activity in Three Federal Judicial Districts -- Interim Report to the Advisory Committee on Civil Rules (Oct. 14, 1994). The FJC studied protective order activity in approximately 300 cases filed in each of three judicial districts, the Eastern District of Michigan, the Eastern District of Pennsylvania, and the District of Columbia, for the period 1990-1992. See also Doré, supra note 1, at 300-03 (discussing the FJC Study and examining whether there is an excess of court secrecy).

[8]: For supporting authorities and a complete discussion of how the tension between settlement and adjudication informs the confidentiality debate, see Doré, supra note 1, at 304-05.

[9]: Procedural rules and federal statutes promote settlement from the inception of a civil lawsuit to its appeal. See, e.g., Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651 et seq. (1998) (mandating that federal courts authorize the use of alternative dispute resolution in all civil cases); Fed. R. App. P. 33 (authorizing appellate settlement conferences). See generally Doré, supra note 1, at 290-92 (discussing the public policy favoring and judicial promotion of settlement).

[10]: See, e.g., Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073 (1984); Marc Galanter & Mia Cahill, "Most Cases Settle": Judicial Promotion and Regulation of Settlements, 46 Stan. L. Rev. 1339 (1994); David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J. 2619 (1995). See also Doré, supra note 1, at 290-95 (examining systemic tension between settlement and adjudication).

[11]: See Doré, supra note 1, at 305-07 (exploring how differing conceptions of the judicial function impact the confidentiality debate).

[12]: See Doré, supra note 1, at 297-300, 308-09 (discussing party autonomy and the confidentiality debate).

[13]: Fed. R. Civ. P. 26(c). The federal protective order rule implicitly protects a wide spectrum of privacy interests, but fails to distinguish between individual and business entities.

[14]: Pretrial litigation, including discovery, pretrial motions, settlement negotiations and settlement, now occupies an extraordinary amount of time and resources in our civil justice system. Indeed, courts adjudicate an astoundingly small percentage of filed cases and an even smaller fraction of those cases actually proceed to a public trial. Thus, if pretrial proceedings are closed to public scrutiny, the lion's share of judicial business will arguably be conducted behind closed doors. See Doré, supra note 1, at 288-89 (citing statistics regarding the shift from trial to pretrial litigation and from adjudication to settlement).

[15]: Yet a fourth response, urged by Professor Zitrin and others, advocates more stringent ethical limits on an attorney's participation in certain secrecy agreements. Under Professor Zitrin's proposed ethical rule, for instance, "[a] lawyer shall not participate in offering or making an agreement, … to prevent or restrict the availability to the public of information that the lawyer reasonably believes directly concerns a substantial danger to the public health or safety, or to the health or safety of any particular individual(s)." Zitrin, supra note 5, at 116. See also Laleh Ispahani, Note, The Soul of Discretion: The Use and Abuse of Confidential Settlements, 7 Geo. J. Legal Ethics 111, 128-30 (1992) (arguing that plaintiffs' attorneys are better positioned than judges to determine whether settlements should be confidential).

[16]: See Fed. R. Civ. P. 26(c). Most states have protective order rules patterned on the good cause standard of the federal rules. See Doré, supra note 1, at 324-71 (examining discovery confidentiality and stipulated protective orders).

[17]: See Doré, supra note 1, at 371-83 (discussing the sealing of judicial records).

[18]: See Doré, supra note 1, at 384-401 (exploring confidential settlements).

[19]: Federal secrecy failed at two levels, both in Congress and with the drafters of the Federal Rules of Civil Procedure. In 1993, 1994, and 1995, Senator Herbert Kohl unsuccessfully introduced three substantially identical versions of a Federal Sunshine in Litigation Act. See S. 1404, 103d Cong. (1993); 140 Cong. Rec. 7719, (103d Cong. Amend. 1930 to S. 687) (1994); S. 374, 104th Cong. (1995). That Act would have limited judicial discretion to issue Rule 26(c) discovery protective orders or any other "order restricting access to court records in a civil case." Efforts to enact federal guidelines for the sealing of judicial records and for the confidentiality of government settlements met a similar fate. See H.R. 3803, 102 Cong. (1991) (proposing Federal Court Settlements Sunshine Act). Faced with attempts to statutorily amend Rule 26(c), the Judicial Conference of the United States charged its Advisory Committee on Civil Rules with studying protective orders concerning discovery. The Advisory Committee proposed amending Rule 26(c) to permit issuance of protective orders more readily--"for good cause shown or on stipulation of the parties." The proposed endorsement of stipulated protective orders proved extremely controversial and was ultimately rejected by the Judicial Conference. The Advisory Committee eventually tabled amendment of Rule 26(c) pending its anticipated study (and ultimate restriction) of the general scope of discovery. For a discussion of federal sunshine efforts, see Doré, supra note 1, at 311-12 n. 117.

[20]: See 1999 California Senate Bill 1254 ("Sunshine in the Courts Act"); 1999 Illinois House Bill 3239 ("sunshine in litigation") [both bills found in Forum materials].

[21]: Tex. R. Civ. P. 76a(2)(b)-(c). The Texas Rule thus covers the gamut of secrecy orders, including discovery protective orders, sealing orders, and confidential settlements. The presumption of public access, however, does not encompass references to settlement amounts, id. § (2)(b), "discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights, id. § (2)(c), or documents filed in camera for the purpose of obtaining a discovery ruling, id. § (2)(a)(1).

[22]: Id. § 76a(1)(a)-(b).

[23]: See id. §§ (3) & (4). For a discussion of the history and operation of Texas Rule 76a, see Doggett, supra note 4.

[24]: The Florida statute, Fla. Stat. Ann. § 69.081 (West Supp. 1998), is also ambitious, prohibiting secrecy orders that have "the purpose or effect of concealing a public hazard or any information concerning a public hazard," or "any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard." Fla. Stat. Ann. § 69.081(3). The Florida statute additionally voids as against public policy any settlement provision that conceals information concerning public hazards, id. § 4, or any settlement of a claim with a government entity. Id. § 8 (a). See also La. Code Civ. P. art. 1426 (prohibiting similar secrecy orders and agreements unless they involve "trade secret or other confidential research, development, or commercial information").

[25]: See Del. Chancery Ct. R. 5(g); Del. Sup. Ct. R. 9(bb); Ga. Super. Ct. R. 21; Idaho Ct. R. 32(f); Ind. Code Ann. § 5-14-3-5.5 (West 1989); Mass. Impoundment Proc. R. 7; Mich. Stat. Ann. R. 8.105(D) (Law Co-op. 1992); N.Y. Ct. R. § 216.1.

[26]: See Ark. Code Ann. § 25-18401-03; N.C. Gen. Stat. § 132-1.3 (1995); Or. Rev. Stat. Ann. § 30.402 (Michie Supp. 1996).

[27]: See Ark. Code Ann. § 16-55-122 (Michie Supp. 1997) (environmental hazards); Wash. Rev. Code Ann. § 4.24.611 (West Supp. 1998) (product liability or hazardous substance claims).

[28]: See Va. Code Ann. § 8.01-420.01 (Michie 1992).

[29]: See Ariz. Sup. Ct. R. 123(c)(1).

[30]: Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-92 (3d Cir. 1994) (identifying a nonexhaustive and nonmandatory set of private and public "good cause" factors). See also Doré, supra note 1, at 315-16, 356-70 (discussing the Pansy decision and other public and private factors relevant in determining good cause).