Eight years ago this month, Bill Lockyer, then the powerful chairman of the state Senate Judiciary Committee, introduced a “sunshine in litigation” bill. The legislation provided “as a matter of public policy” that, with rare exceptions, no case involving allegations of defective products, environmental hazards or financial fraud could be settled in secrecy, and no evidence supporting these allegations could be kept from public disclosure. Lawyers who entered into secret settlements in violation of the act could be disciplined. In1993 Lockyer won approval from both houses of the California legislature for what would have been the broadest such law in the country. But Gov. Pete Wilson vetoed it.
This January brought a new governor to California, and Lockyer is now the state attorney general. Perhaps next time, this bill will become law. But, as of now, only three states — Florida, Texas and Washington — have strong prohibitions against secrecy in litigation. And, although these states have clear language creating presumptions of openness for filed court documents and discovery, not even these more progressive regimes include relevant impositions of discipline for offending counsel, as the California legislation proposed to do.
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