SACRAMENTO - A bill to prohibit confidential protective orders in a broad range of civil lawsuits was approved by the California state Senate Judiciary Committee on May 11.

The bill (SB 1254 - Schiff) would require judges to deny protective orders covering information that "indicates allegations" of product defect, toxic hazards, or financial fraud. Any person could challenge a judge®s grant of an order for up to five years after the ruling and win attorney fees and costs if it is overturned. The bill offers limited confidentiality protection to trade secrets.

The bill, being strongly opposed by the Civil Justice Association of California (formerly the Association for California Tort Reform), is beginning to attract broad business community opposition. The personal injury trial lawyer lobby backing the bill say it is needed to protect people from hazards hidden in litigation documents.

"This bill is more pro-litigation than pro-consumer," said John H. Sullivan, Civil Justice Association president. "We are fully in favor of judges preventing the use of court documents to bottle up important, valid public safety information. But this bill operates on the assumption that in every lawsuit merely accusing anyone of making a defective product or committing financial fraud there is automatically information of significance to the population's physical or economic health."

Sullivan points out that while the bill's author Senator Adam Schiff has worked to eliminate some problems with the proposal, overall the measure still operates first and foremost to provide contingency fee and class action lawyers the information they want to use to file more lawsuits.

Sullivan added that enacted as is, the bill will fuel a trend criticized by Professor Arthur R. Miller, Bruce Bromley Professor of Law at Harvard Law School, who calls attention to the "indiscriminate exploitation of the courts as an information source" in a new age of electronic communication and entertainment. (unpublished 1998 article available from the Civil Justice Association of California)

Senate Bill 1254 has been identified as a "cost-to-government" bill and therefore must be heard by the Senate Appropriations Committee before going to the full Senate for vote. It would have to be passed by the Assembly and sent to the Governor by mid-September in order to become law on next January 1.