I. LEGISLATION IDENTIFIED BY PROPONENTS OF CALIFORNIA'S PROTECTIVE ORDER BILLS (AB 36 / SB 11)

Applies only to the sealing of "public records," including settlements by any government agency arising out of official actions. Judges have discretion to nevertheless enforce sealed government settlements under a balancing test.

Unlike California's bills, this statute does not declare a broad right of public access to discovery materials - it does not affect protective orders at all. It only applies to sealing of public records such as settlement agreements entered into by government agencies, and does not apply to other confidentiality agreements. Even for cases involving the government, judicial discretion is preserved and confidentiality orders can be permitted.

Applies only to the sealing of "public records;" court must hold a hearing after notice to the public, which can testify and submit written briefs; court must make findings of fact and conclusions of law that sealing is proper under balancing test.

Unlike California's bills, this statute applies only to the sealing of "public records". Most discovery documents are not filed with the court and, therefore, are not public records. See, e.g., NBC Subsidiary (KNBC-TV) Inc. v. Superior Court, 20 Cal. 4th 1178, 1208-09 n.25 (1999). This statute does not declare a broad right of public access to discovery materials - it does not affect protective orders at all, nor does it affect confidential settlement agreements. Moreover, even in deciding whether records should be sealed, this statute does not restrict judicial discretion.

Discovery protective orders cannot prevent attorneys from sharing information in substantially similar suits, if the court grants permission after notice to the party that produced the documents pursuant to the protective order.

Unlike California's bills, this statute does not declare a broad right of public access to discovery materials, nor does it apply to confidential settlement agreements between parties. Moreover, it only involves a minimal limitation on the issuance of protective orders and does not restrict a judges' discretion to prohibit attorneys from sharing information if necessary to protect confidentiality. It also allows the party seeking protection to be heard before any disclosure occurs, and in any event, limits disclosure to other similar cases, not unfettered public access to, and dissemination of, discovery documents.

Applies only to the sealing of "court records," and specifically exempts "documents obtained through disclosure and not filed with the clerk." Even court records may be sealed, moreover, on a written finding "of good cause" upon consideration of the interests of the public and the parties.

Unlike California's bills, this rule applies only to the sealing of court records, and does not apply to protective orders issued during discovery and litigation. Like other states' statutes, this law does not declare a broad right of public access to discovery materials - it does not affect protective orders at all, nor does it affect confidential settlement agreements. Moreover, even in deciding whether records should be sealed, this statute does not restrict judicial discretion.

Prohibits government agencies from entering into confidential settlement agreements, but court may still order confidentiality if the specific privacy interests of a private individual outweighs the public interest in the terms of the settlement.

Unlike California's bills, this statute does not declare a broad right of public access to discovery materials - it does not affect protective orders at all. It only applies to settlement agreements entered into by government agencies, and does not apply to other confidentiality agreements. Even for cases involving the government, judicial discretion is preserved and confidentiality orders can be permitted.

States only that court records are available for public inspection, unless the court orders public access limited. Orders limiting access may be issued on motion by a party, specifying scope, duration and reason for sealing of records, upon a finding of a privacy harm that clearly outweighs the public interest. Temporary sealing orders are permitted on ex parte application. State Supreme Court may review sealing order on its own motion or motion of any person for good cause.

Unlike California's bills, this rule applies only to the sealing of court records and does not apply to confidential settlement agreements protective orders issued during discovery and litigation - this rule does not declare a broad right of public access to discovery. Moreover, even as to the sealing of public records, this rule does not restrict judicial discretion.

Legislature "declare[d] as a matter of public policy that the public has a right to information necessary" to protect themselves from "alleged hazards" but also recognize[d] "that protection of trade secrets, other confidential research, development, or commercial information concerning products or business methods promotes business activity and prevents unfair competition." Confidentiality provisions may be entered or enforced in court's discretion under balancing test; third parties can challenge confidentiality provisions in orders or agreements, and the court "has discretion to award" costs and attorney's fees.

Unlike California's bills, this law does not declare a broad and unfettered right of public access to all discovery in the cases in which it applies - it expressly recognizes the public policy in favor of protecting confidential business information, research and trade secrets. This statute does not restrict judicial discretion in any manner. In fact, the statute specifically calls for a balancing test of competing interests. This statute was enacted after a more burdensome, unworkable statute was repealed. See former RCW 4.24.600, et seq. (WA SB 5362).

"Any provision of a contract or agreement entered into to settle a lawsuit which purports to restrict any person's right to disclose the existence or harmfulness of an environmental hazard is declared to be against the public policy of this state and therefore void."

Unlike California's bills, this statute applies only to final confidential settlement agreements. It does not declare a broad public right of access to discovery - in fact, because it does not apply to protective orders issued by a court, and it does not restrict judicial discretion to issue protective orders at all.

Applies to court records, and bars their sealing absent "good cause shown." Any person may object to sealing of court records by written notice, and the proponent of sealing is afforded an opportunity to respond before the court makes its determination as to whether the records should remain sealed.

Unlike California's bills, this rule applies only to the sealing of court records, and does not apply to protective orders issued during discovery and litigation. Like other states' statutes, this law does not declare a broad right of public access to discovery materials - it does not affect protective orders at all, nor does it affect confidential settlement agreements. Moreover, even in deciding whether records should be sealed, this statute does not restrict judicial discretion.

Courts generally may enter protective orders on motion, but cannot for information relating to public hazards, unless such information is a "trade secret or other confidential research, development, or commercial information;" any agreement with a confidentiality provision relating to a public hazard is unenforceable; "substantially affected" third persons can challenge but no mandatory attorney's fees provision.

Unlike California's bills, this statute does not declare a broad public right of access to discovery. It applies only to protective orders, not confidential settlement agreements between parties. But even protective orders are permitted where necessary to protect confidential commercial information, not just trade secrets, and judicial discretion in issuing such orders is not limited.

Relates to the sealing of the court's records (including settlement agreements and certain discovery); judge has discretion to seal court records after applying balancing test; notice of motion to seal must be given to public; written ruling required but document-by-document is not; third parties can request that court records be unsealed but no mandatory attorney's fees provision.

Unlike California's bills, this statute does not declare a broad public right of access to discovery, and judges retain the discretion to maintain confidentiality where necessary. Moreover, the statute does not apply to confidentiality agreements, or confidential settlement agreements, entered into by parties and applies primarily only to documents filed with the court. Nevertheless, this statute still has been the subject of litigation over its applicability and constitutionality, which have not yet been fully decided. See, e.g., Eli Lilly and Company v. Marshall, 829 S.W. 2d 157 (Tex. 1992); Dallas Morning News v. Fifth Court of Appeals, 842 S.W. 2d 655 (Tex. 1992). And, at least one Texas court has held that Rule 76a does not contain a presumption that unfiled discovery documents are "court records;" rather, the party asserting that the documents should be open to the public has the burden of proving that the discovery documents concern matters of "public health or safety" and thus are "court records" for purposes of Rule 76a. See Eli Lilly & Co. v. Biffle, 868 S.W.2d 806, 808 (Tex. App. 1993).

Bars protective orders which conceal "public hazards," but judge nevertheless has discretion to enter them "for good cause shown;" trade secrets are protected so long as they are not pertinent to a public hazard; third parties may contest order; judge is to review materials in camera but no document-by-document review requirement; declares confidential settlement agreements by government agencies void.

Unlike California's bills, this statute does not declare a broad public right of access to discovery, and judges retain the discretion to maintain confidentiality where necessary - even if a "public hazard" allegedly is at issue. Moreover, it only restricts settlement agreements entered into by government agencies, and does not apply to other confidentiality agreements. This statute also has been the subject of litigation over enforcement procedures and constitutionality. See, e.g., ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1992)(application of Florida's statute to confidentiality agreement entered into in another state); General Motors Corp. v. Dickerson, 654 So. 2d 1036 (Fla. 1995)(motion for protective order as to 50,000 documents in product liability case).

II. CALIFORNIA LOCAL COURT RULES

Declare as court policy that "confidentiality agreements and protective orders are disfavored" and should only be entered where necessary to protect valid interests, such as trade secrets or privileges. Los Angeles and San Diego require a particularized showing (document by document) that secrecy is in the public interest, the proponent has a cognizable interest in the material; (e.g., the material contains trade secrets, privileged information, or is otherwise protected by law from disclosure), and that disclosure would cause serious harm.

Unlike California's bills, these local rules do not declare a broad public right of access to discovery materials. They also do not unduly restrict judicial discretion and provide more thorough protection for trade secrets, privileged matters and other confidential information. In fact, the San Francisco rule (10.5(3)(A)) expressly permits the "entry of a protective order designed to facilitate the expeditious production of documents during discovery . . . ." Also, the applicability and validity of at least one of these rules (LA Local Rule 7.19) has been called into question. See Stadish v. Superior Court, 71 Cal. App. 4th 1130, 1144, n. 12, 1147-1148 (1999). Moreover, litigants avoid Rule 76a altogether by using other statutory mechanisms to prevent disclosure of confidential information obtained during the course of litigation. One such mechanism, Texas Rule of Civil Procedure 11, was the subject of at least two cases, In re Dallas Morning News, 10 S.W.3d 298 (Tex. 1999), and In re Kaiser Foundation Health Plan of Texas, 997 S.W.2d 605 (Tex. App. 1998). Rule 11 provides that "no agreement between attorneys or parties touching any suit pending will be enforced unless it is in writing, signed and filed with the papers as part of the record°", but it apparently is used by practitioners as an enforcement mechanism for agreements between the parties or their counsel reached during the course of litigation. See, e.g., Kaiser, 997 S.W.2d at 605.

III. CALIFORNIA RULES OF COURT

Applies only to sealing of court records, not to discovery. See Cal. R.Ct. 243.1(a)(2). Recognizes a right of public access only to those materials filed with the court, but even then, courts retain discretion to seal records when an overriding interest is present.

Unlike California's Bills, this rule of court applies only to court records. Most discovery documents are not filed with the court. These court rules do not declare a broad public right of access to discovery materials, and do not affect protective orders and confidential settlement agreements at all.