By Eva M. Rodriguez Legal Times
The federal judiciary, in an apparent about-face, has taken a
critical step toward loosening rules governing protective orders,
thus reversing an action taken earlier this year.
On April 20, the Advisory Committee on Civil Rules, which is part of
the powerful Judicial Conference of the United States, approved a
change to the federal rules that would make it easier for litigants
to obtain protective orders. Critics say the change would increase
secrecy in the federal courts.
Currently, Rule 26(c) of the Federal Rules of Civil Procedure allows
a judge to issue a protective order for documents in civil litigation
only if he or she finds that there is "good cause" to do so. The
proposed change would allow a judge to issue a protective order as
long as both sides stipulated to the secrecy provision.
The committee's move seems to contradict an action taken by the
Judicial Conference this March. The conference, which acts as the
policy-making body of the federal judiciary, rejected an identical
provision allowing secrecy orders upon stipulation.
But some of the 26 judges on the Judicial Conference said at the time
that they refused to sign off on the proposal simply because outside
groups had not been given an opportunity to weigh in.
Critics of the latest action insist that increased secrecy would
deprive the public of important health and safety information
regarding defective products that are the subject of litigation. They
say they are taken aback by the judiciary's apparent reversal.
"This decision comes as a surprise to me, because my understanding
was that the Judicial Conference had explicitly rejected that
language," says Leslie Brueckner, a staff attorney with Trial Lawyers
for Public Justice, a liberal, D.C.-based interest group that led the
opposition to the proposed change.
But John Rabiej, chief of the Committee on Rules of Practice and
Procedure's support office at the Administrative Office of the U.S.
Courts, notes that when the Judicial Conference struck the
stipulation language from the earlier proposal, it sent the issue
back to the advisory committee and gave it free rein to reconsider
the issue from scratch.
"Since they recommitted it afterwards, then it's a new ballgame,"
The advisory panel sent the proposed change, along with a
recommendation that it be circulated for public comment, to the
Committee on Rules of Practice and Procedure, the standing committee
that must evaluate the proposal before sending it on to the Judicial
Conference. The committee is scheduled to discuss the matter during
its July meeting in Washington, D.C.
Those who dislike the judiciary's current course still hold out hope
that anti-secrecy legislation backed by Sen. Herbert Kohl (D-Wis.)
may yet win passage. Kohl is pushing a bill he introduced earlier
this year that would force judges to consider health and safety
questions before issuing protective orders. The legislation, which is
similar to a provision rejected in the House of Representatives, is
pending in the Senate.
(Legal Times is an affiliate publication of Court TV.) Copyright
1995, American Lawyer Media.
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