The current law governing public access to information generated through civil litigation is flawed in two ways: (1) while many states and courts in theory require rigorous standards to be met before court documents, including judicially-approved settlement agreements, can be sealed, in practice courts often allow pressure from private parties to trump public interests; and (2) the public's lack of any ability to access unfiled discovery materials deprives the public of information it often has an interest in seeing and permits litigants to enter into secrecy agreements that hide their bad acts.
This Article details the deficiencies in the existing regime and then examines in detail several innovative "sunshine" rules that attempt to restrict certain kinds of litigation secrecy, including the District of South Carolina's prohibition on filing confidential settlements with the court; Texas's Rule 76a, which allows third parties to intervene before courts order certain records to be sealed; and Florida's "Sunshine in Litigation Act," which attempts to prohibit settlement agreements that conceal public hazards. In most circumstances, the sunshine rules have not had their desired impact, as litigants seeking secrecy have found ways to contract around them. The Article looks at the lessons to be drawn from these experiences and what states and courts can do to better protect the public's interests in accessing certain types of information generated through civil litigation.
Andrew D. Goldstein,
Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Generated through Litigation,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss2/6