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A07463 Summary:

BILL NOA07463
 
SAME ASSAME AS S02552
 
SPONSORWeinstein
 
COSPNSRDinowitz, Gibbs, Epstein, Rosenthal L, Kelles
 
MLTSPNSR
 
Amd 3103, add Art 31-A 3141 - 3143, CPLR
 
Enacts the "sunshine in litigation act" regarding protective orders.
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A07463 Actions:

BILL NOA07463
 
05/23/2023referred to judiciary
01/03/2024referred to judiciary
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A07463 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7463
 
SPONSOR: Weinstein
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to enact- ing the "sunshine in litigation act" regarding protective orders   PURPOSE: To enact the Sunshine in Litigation Act to prohibit settlement agree- ments which conceal a public hazard or any information that would iden- tify a public hazard.   SUMMARY OF PROVISIONS OF BILL: Section 3141 titles the bill "Sunshine in Litigation Act". Section 3142 defines governmental entity, public hazard, and trade secret. Section 3143 (a) prohibits the court from entering an order or judgement which has the purpose or effect of concealing a public hazard or infor- mation that may be useful to the public in protecting from a public hazard. Section 3143 (b) provides that trade secrets which are not pertinent to public hazards shall not be subject to disclosure. Section 3143 (c) provides that any agreement or contract which has the purpose or effect of concealing a public hazard is Void as contrary to public policy and may not be enforced by New York courts or otherwise. Section 3143 (d) provides standing to any substantially affected person, including news media, to bring an action to challenge an order, agree- ment or contract on grounds that it prevents the disclosure of a public hazard. Section 3143 (e) provides that the courts will review motions to prevent disclosure "in camera" upon good cause. Only necessary information vital to the protection of the public will be disclosed by the court. Valuable trade secrets and confidential information will remain protected. Section 3143 (d) provides that any settlement involving government enti- ties that conceals issues of public hazards is void and unenforceable. Documents related to government case settlements are subject to FOIL.   JUSTIFICATION: Secrecy agreements that conceal public hazards undermine the civil justice system and endanger New Yorkers by keeping information vital to their health and safety from public view. Secret settlements also have a corrosive effect on public confidence in the courts. The recent recall and controversy surrounding Firestone tires under- scores the need for the "Sunshine in Litigation" reforms. Victims of the dangerous tires began seeking justice in the courts in 1992, but it was not until 2000 that the tires were recalled. During the interim there were dozens of lawsuits settled out of court in which Firestone demanded and obtained secrecy orders. These effectively blocked the release to the public of information about the potential dangers associ- ated with the tires. As a result, there were many unnecessary deaths and injuries which could have been avoided. Other examples of secret settle- ments that concealed ongoing harm to the public are asbestos, silicone breast implants, and DES synthetic estrogen. A number of other states have enacted disclosure laws, including South Carolina, Texas, Florida, Louisiana, and Washington.   LEGISLATIVE HISTORY: 2021-2022; 5.472 - Rules Committee 2019-20; A.5632/S.4235-Judiciary Committee/S. Judiciary Committee 2018; A. 9593 - Judiciary Committee 2008; A.3150- A. Codes Committee 2007; A3150- A. Judiciary Committee 2006; A.5943- A. Codes Committee 2005; A.5943- A. Rules Committee 2004; A.7017-B/S.2995-A- A. Rules/S. Codes Committee 2003; A.7017-B/S.2995-A- A.Rules Report Cal. 407/S. Rules Committee   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect 30 days after it shall have become a law.
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A07463 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7463
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 23, 2023
                                       ___________
 
        Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred to the
          Committee on Judiciary
 
        AN ACT to amend the civil practice law and rules, in relation to  enact-
          ing the "sunshine in litigation act" regarding protective orders
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision (a) of section 3103 of the civil  practice  law
     2  and  rules, as amended by chapter 205 of the laws of 2013, is amended to
     3  read as follows:
     4    (a) Prevention of abuse. [The] Subject to the  provisions  of  section
     5  thirty-one  hundred  forty-three  of  this chapter, the court may at any
     6  time on its own initiative, or on motion of any party or of  any  person
     7  from  whom  or  about  whom discovery is sought, make a protective order
     8  denying, limiting, conditioning or regulating the use of any  disclosure
     9  device.  Such order shall be designed to prevent unreasonable annoyance,
    10  expense, embarrassment, disadvantage, or other prejudice to  any  person
    11  or the courts.
    12    § 2. The civil practice law and rules is amended by adding a new arti-
    13  cle 31-A to read as follows:
    14                                ARTICLE 31-A
    15                         SUNSHINE IN LITIGATION ACT
    16  Section 3141. Short title.
    17          3142. Definitions.
    18          3143. Sunshine  in  litigation;  concealment  of  public hazards
    19                  prohibited.
    20    § 3141. Short title. This article shall be known and may be  cited  as
    21  the "sunshine in litigation act".
    22    §  3142.  Definitions.  When used in this article, unless otherwise so
    23  stated, the following terms shall have the following meanings:
    24    (a) Governmental entity. "Governmental entity" shall  mean  the  state
    25  and  any  county, city, town, village or any other political subdivision

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07161-01-3

        A. 7463                             2
 
     1  of the state,  and  every  department,  board,  bureau,  agency,  public
     2  authority  or other governmental instrumentality of the state or a poli-
     3  tical subdivision of the state.
     4    (b)  Public  hazard.  "Public  hazard" shall mean any condition of any
     5  device, instrument, person, procedure,  product  or  property  that  has
     6  caused  injury  to  the  person or property of another, or which, unless
     7  altered, removed, reassembled or changed in some manner, creates a  risk
     8  of injury to person or property in the future.
     9    (c)  Trade secret. "Trade secret" shall mean information, technical or
    10  non-technical, including, but not limited to, a formula, pattern, compi-
    11  lation, program, device, method, technique or process that:
    12    1. derives independent economic value, actual or potential,  from  not
    13  being  generally known to, and not being readily ascertainable by proper
    14  means, by other persons who can obtain economic value from  its  disclo-
    15  sure or use; and
    16    2.  is  the  subject  of efforts that are reasonable under the circum-
    17  stances to maintain its secrecy.
    18    § 3143. Sunshine in litigation; concealment of public hazards  prohib-
    19  ited.  (a)  Except  in  strict  compliance  with  the provisions of this
    20  section, no court shall enter, order or render a judgment in any  action
    21  or  proceeding  brought in this state which has the purpose or effect of
    22  concealing a public hazard or concealing any pertinent information  that
    23  would  identify  a  public hazard, nor shall the court enter an order or
    24  render a judgment which has the purpose  or  effect  of  concealing  any
    25  information  that  may  be useful to members of the public in protecting
    26  their person or property from damage or  injury  that  may  result  from
    27  contact with a public hazard.
    28    (b)  Trade  secrets  which  are not directly related to public hazards
    29  shall be protected and not ordered to  be  released.  In  addition,  the
    30  provisions  of this section shall not apply to other information that is
    31  confidential because it is privileged under any provision  of  state  or
    32  federal law.
    33    (c)  Any  provision  of  any agreement or contract entered into within
    34  this state or pertaining to persons or property within this state, which
    35  has the purpose or effect of concealing a public  hazard  or  concealing
    36  any  information  that would identify a public hazard, which information
    37  may be useful to members of the public in  protecting  their  person  or
    38  property  from  damage  or  injury  resulting from contact with a public
    39  hazard, is hereby declared to be void and contrary to public policy, and
    40  shall not be enforced by the courts of this state, or otherwise.
    41    (d) Any substantially affected person or representative of the  estate
    42  of  such  person,  including  but not limited to a representative of the
    43  news media, shall be deemed to have  standing  to  bring  an  action  or
    44  proceeding  in  a  court  of competent jurisdiction to contest an order,
    45  judgment, agreement or contract on the  grounds  that  it  violates  the
    46  provisions  of  this  section requiring disclosure of the existence of a
    47  public hazard. Such person may contest such an order,  judgment,  agree-
    48  ment  or  contract  by  motion brought before the court that entered the
    49  order or judgment.
    50    (e) Upon motion and good cause shown by a party attempting to  prevent
    51  release  of  information or materials allegedly concealing the existence
    52  of a public hazard, including but not limited to disputes  wherein  such
    53  information  is alleged to be a trade secret protected by law, the court
    54  shall examine the disputed information or materials in  camera.  If  the
    55  court  determines that the information or materials or portions  thereof
    56  consist of information concerning a public hazard  or  information  that

        A. 7463                             3
 
     1  may  be  useful  to  members of the public in protecting themselves from
     2  injury to person or property that may result from contact  with  such  a
     3  public hazard, the court shall order release of the information or mate-
     4  rials. If such release is ordered, the court shall allow release of only
     5  that  portion of the information or materials necessary or useful to the
     6  public in identifying the public hazard, and in protecting their  person
     7  or  property from damage or injury that may result from contact with the
     8  public hazard.
     9    (f) Any provision of any agreement or  contract  entered  into  within
    10  this state, or pertaining to persons or property within this state, that
    11  has  the  purpose  or  effect  of concealing information relating to the
    12  settlement or resolution of any claim or action against any governmental
    13  entity and that may be useful to members of  the  public  in  protecting
    14  their  person  or  property  from  damage or injury that may result from
    15  contact with a public hazard is hereby declared to be void and  contrary
    16  to public policy, and shall not be enforced by the courts of this state,
    17  or  otherwise.  Any  document, record, contract or agreement relating to
    18  any settlement, as set forth in this  subdivision,  shall  be  deemed  a
    19  public  record  subject  to  disclosure  pursuant  to article six of the
    20  public officers law. The failure or refusal of any party to an action or
    21  proceeding, or other person in custody of such a record, to disclose and
    22  provide any document, record, contract or agreement as set forth in this
    23  subdivision shall be subject to the sanctions as set  forth  in  article
    24  six of the public officers law, pursuant to the applicable law or rule.
    25    §  3.  This  act shall take effect on the thirtieth day after it shall
    26  have become a law.
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