The Business Council opposes S.1066 / A.7513, a bill which restricts the use of protective orders to keep discovery exchanged in civil litigation confidential.
There are many reasons why parties agree or a court orders limitations on the possession, disclosure or dissemination of information obtained during the course of litigation.
Proprietary, sensitive and/or embarrassing personal information must, in many cases, be disclosed by parties in the course of litigation. This information may be necessary to resolve the dispute between the parties, but there is often no legitimate reason to disclose it to the general public.
This bill would forbid the entry of an order or judgment by any court, if the result would have the "purpose or effect" of concealing a public hazard, or any information concerning a public hazard, or any information that may be useful to members of the public in protecting themselves from injury which may result from a public hazard. It would also make null and void any part of a confidentiality or settlement agreement having a similar effect. The bill provides for a motion by any substantially effected person to compel disclosure of such information. The measure also makes agreements relating to settlement or resolution of claims against the state or municipalities unenforceable, if they conceal such information.
The definition of the term "public hazard" in this proposed legislation is so broad that it is difficult to comprehend what would not be a "public hazard"; therefore virtually all confidentiality agreements, settlement agreements or court orders which limit disclosure would be null and void.
If parties to litigation wish to keep matters confidential they should be permitted to do so and the court in the exercise of its discretion should be permitted to issue orders which limit disclosure.
The current practice is the appropriate way to handle sensitive information in the context of litigation and The Business Council strongly opposes this legislation which, for all practical purposes, will ban agreements or orders which limit disclosure.