Legislative Memo

Larry Justice


S.2995 (DeFrancisco) / A.7017-A (Weinstein)



"Sunshine in Litigation Act"



May 27 , 2003


This legislation, the "Sunshine in Litigation Act", would prohibit a court from issuing protective orders or sealing a record in any case involving a "public hazard", declare void any agreement between private parties which enter into a confidential settlement of a claim involving a "public hazard", and require government entities that settle any tort claim for over $5,000.00 without court approval to publish a notice of the settlement. "Public hazard" is so broadly defined as to include virtually any claim for personal injury or property damage.

The Business Council has consistently opposed measures such as this on the basis that they tend to have a chilling effect on parties who might otherwise wish to settle litigation but will not do so because sensitive as well as personal information could become public.

Section 3103 of the Civil Practice Law and Rules gives the court discretion in issuing protective orders to regulate the use of disclosure devices.

Not long ago the Office of Court Administration adopted a court rule (22NYCRR Part 216) which was designed to address the sealing of court records by requiring a court to find good cause before ordering a record sealed.

The business community traditionally has relied on the discretion given to a judge by statue and court rule to evaluate the specific facts of a case to arrive at a fair balancing of the needs of the parties to litigation and the public when deciding whether confidentiality is appropriate.

There has been no demonstration of the need to strip the court of its discretion in making these decisions and, therefore, The Business Council strongly opposes this bill.