With so much focus on information privacy lately, it is surprising that one idea continues to float around the California Legislature. As they have done several times over the past decade without success, the personal injury attorneys are once again sponsoring legislation that would eliminate existing privacy protections for information exchanged by the parties to a lawsuit. While the so-called "Sunshine in Litigation Act" is limited to product liability, environmental hazard and financial fraud claims, those terms are defined so broadly that they would include almost every personal injury lawsuit brought against business. In such cases, all of the information produced during the course of discovery would be presumed to be public and could be posted on the Internet.
Under current litigation practice, sensitive business and personal information is typically produced subject to a protective order from the Court that limits use of the information to the pending claim. The personal injury attorneys argue that this practice jeopardizes the public health and safety because unscrupulous businesses can settle claims on a confidential basis and thereby avoid scrutiny of their past misdeeds. What they do not explain is why all discovery information should be made public, as opposed to giving the Court authority to require specific information to be shared with an appropriate regulatory agency. Perhaps the real explanation for the unrelenting effort to make discovery information public is outlined in a recent Business Week article (January 29, 2001) that describes a vast library of documents and deposition testimony the personal injury lawyers maintain to streamline cookie-cutter lawsuits against business.
The current anti-privacy proposal has been introduced in twin measures---AB 36 (Steinberg) and SB 11 (Escutia) -- authored by the Chairs of the Assembly and Senate policy committees where the two bills will be heard. Also, unlike past proposals, the Legislative Counsel has determined that the current proposal will not have a significant fiscal impact on the Courts so the only opportunity for public testimony will be in the two policy committees. Although the two authors declared their intent to fast-track this legislation at a joint press conference held last December, both measures have been temporarily derailed by a special session of the Legislature called to address another significant threat to California business, the electricity crisis.
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