Bill Barring Privacy Protections

Bill Barring Privacy Protections in Litigation for California is Causing Concern: Litigation Trends

I read this commentary regarding a potential bill barring privacy protections in litigation for California and it has caused considerable concern, which led to this Commentary on Legaltech® News.

The Commentary (California Bill Barring Privacy Protections in Litigation Would Have Significant, Negative Consequences, written by Hon. Andrew Peck (ret.), Chris Campbell, Leeanne Mancari and Christopher Young, DLA Piper) discusses the concerns associated with California Senate Bill 1149, also referred to as the “Public Right to Know Act,” which would prevent parties in product liability and environmental litigation from reaching agreements, commonly referred to as protective orders, that protect the parties’ private and confidential data and information from being disclosed to the public.

Specifically, S.B. 1149 would prohibit any agreement between parties to a lawsuit from restricting the disclosure of information regarding a defective product or environmental hazard that “poses a danger to public health or safety,” and render such provisions void as a matter of law, against public policy, and unenforceable. S.B. 1149 would also establish a presumption that no stipulation or court order may conceal discoverable factual information relating to those lawsuits, except for specified categories of information (e.g., medical information, personal identifying information, the settlement amount, current proprietary customer lists, trade secrets, or citizenship/immigration status). The bill would allow any person as to whom it is reasonably foreseeable that they would be affected by a provision, agreement, or order, to challenge the provision, agreement, or order as specified. It would also allow a party to file a motion for nondisclosure under these provisions.

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The Commentary begins with this statement:

“As a former federal magistrate judge and counsel representing clients in product liability and environmental matters in California courts, we have serious concerns about California’s Senate Bill 1149. The bill would bar privacy protections in litigation, making information produced in discovery available to the public. As courts have recognized, “unlimited access to every item turned up in the course of litigation would be unthinkable. Reputations would be impaired, personal relationships ruined, and businesses destroyed on the basis of misleading or downright false information.” United States v. Amodeo, 71 F.3d 1044, 1048-49 (2d Cir. 1995).”

The authors of the Commentary also note that similar legislation to S.B. 1149, such as the Sunshine in Litigation Act, have failed “for good reason”. The Sunshine in Litigation Act bill was widely repudiated, with groups from the American Bar Association to the federal judiciary opposing it. Since then, there have also been recent bills in New York (introduced in January 2021), New Jersey (introduced in January 2020), and Maryland (introduced in January 2017) that have all failed to pass.

The Commentary also discusses “Five Reasons Why S.B. 1149 Is Wrong for Courts, Parties, and the Public” that illustrate several issues with the bill. You can check out the full Commentary in detail here.

I can understand why this potential bill barring privacy protections in litigation for California is so concerning. Imagine the additional challenges that will exist if parties aren’t able to agree to protective orders to protect their private and confidential data from being exposed to the public? While I understand the desire to get factual information about a defective product or environmental hazard out there, what is considered to be “factual” is open to debate.

So, what do you think? Are you concerned about this potential bill barring privacy protections in litigation for California? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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