The 'Sunshine in Litigation Act' Also Rises

The legislation was first introduced in the 1990s, and has been widely opposed ever since.

Basically, the Sunshine in Litigation act proclaims open season on anything and everything obtained during the discovery process.

Critics of the legislation contend that limiting a judge's ability to issue protective orders will overburden courts and cause increased expense. In addition to these practical concerns, many contend the legislation is unconstitutional, as it's seen as violating privacy and due process.

Supporters of the legislation, many of whom are trial lawyers, not surprisingly, feel it is necessary to make the public aware of information about potential health or safety hazards.

The author of the April 14th favstocks.com article, ''Dems & Trial Lawyers: Pushing discovery extortion through proposed ''Sunshine in Litigation Act.'' Again.'', Clyde Middleton, uses an example of an employee injured on the job, who claims he can no longer work due to said injuries, to illustrate what's deemed necessary information during the discovery process. The employee's bank records, which reveal that he made an attempt to launch a virtual business, is relevant. His purchases at a porn shop aren't. Per the article, the goal is to ''resolve this dispute but not to destroy the litigants in the process.''

What's more, quantitative proof exists to illustrate that the Sunshine Act is unnecessary.

According to the pointoflaw.com article, in July 2008, Judge Mark R. Kravitz, chair of the Judicial Conference Advisory Committee on Civil Rules, testified before the House Judiciary Subcommittee on Commercial and Administrative Law. In his testimony, he ''cited a study by the Federal Judicial Center, completed in 1996, that examined 38,170 cases filed in three districts between 1990 and 1992. Discovery protective orders were requested in only about 6 percent of the civil cases in those districts-most by motion, which courts carefully reviewed. Of the 398 cases that had protective order activity, only half involved a protective order restricting disclosure of discovery materials, and of those about 9 percent were personal injury cases.''

Kravitz was quoted as saying about the study: ''The empirical data showed no evidence that protective orders create any significant problem of concealing information about public hazards.''

Additionally, e-discovery raises the stakes even higher. According to the pointoflaw.com article, Sen. Orrin Hatch (R-UT) made the following remarks at a 2007 hearing, citing a letter written to him by New York University Law School Professor Arthur Miller: ''[T]he massive expansion of discovery in today's electronic world magnifies the need for broad judicial discretion to protect all litigants' privacy and property rights.

There's no doubt that the Sunshine in Litigation Act isn't giving many people a warm and fuzzy, but given that the proposed legislation has hung for nearly two decades, it certainly deserves to be closely monitored.