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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," Rabiej says.

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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