Second Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 12-0550.01 Jane Ritter x4342 SENATE BILL 12-153 SENATE SPONSORSHIP Morse, HOUSE SPONSORSHIP (None), Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning the creation of the "Sunshine in Litigation Act". Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill creates a rebuttable presumption that information concerning a public hazard (information) must be disclosed in a court action. A party objecting to the disclosure can seek a protective order to limit disclosure if the court finds, by clear and convincing evidence, that certain factors have been met, including that the information is not relevant to the public hazard and is not useful to members of the public in protecting themselves from injury resulting from the public hazard. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add part 12 to article 5 of title 25 as follows: PART 12 SUNSHINE IN LITIGATION ACT 25-5-1201. Short title. This part 12 shall be known and may be cited as the "Sunshine in Litigation Act". 25-5-1202. Legislative declaration. (1) The general assembly recognizes that it is the practice of the courts of this state to: (a) Seal court records, often interfering with the ability of the public and governmental regulators to discover hazards to public health, welfare, and safety; (b) Issue protective orders that prevent public debate about issues associated with public health, welfare, and safety; and (c) Enter into confidentiality agreements to prevent disclosure of information to the public and other litigants with respect to hazards to the public health, welfare, and safety. (2) The general assembly hereby declares that it is in the best interests of the citizens of the state of Colorado to be aware of and have access to information about hazards to the public health, welfare, and safety. In order to assist in the free flow and reasonable availability of information concerning matters of importance to the public health, welfare, and safety, and to assist in safeguarding life, health, property, and the welfare of the citizens of this state, the general assembly hereby declares that the purpose of enacting this part 12 is to ensure that, in any civil or administrative action in any state or federal court or tribunal in this state, information concerning public hazards is not concealed. 25-5-1203. Definitions. As used in this part 12, unless the context otherwise requires: (1) "Public hazard" means any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future. 25-5-1204. Public disclosure - rebuttable presumption - protective orders. (1) Production of information concerning a public hazard in another action in any other court or jurisdiction, whether voluntarily or by order of court, or pursuant to any agreement between the parties to that action, creates a rebuttable presumption that the information shall not be concealed. Notwithstanding any statute or court rule to the contrary, a court shall not enter an order or judgment that has the purpose or effect of concealing a public hazard or any information concerning a public hazard unless: (a) The party to the action who objects to disclosure of the information: (I) Files a motion for a protective order to limit disclosure of the information to the parties to the case, including a list of the documents and things sought to be protected, within the time otherwise provided by law for disclosure of the information; and (II) Produces the documents or things sought to be protected to the court and opposing party for in camera review and inspection not later than seven days before the hearing; and (b) After a hearing involving all the parties, the court finds, by clear and convincing evidence, the following: (I) That the information is not relevant to the public hazard or is not reasonably calculated to lead to the discovery of evidence concerning the public hazard; (II) That the information is not useful to members of the public in protecting themselves from injury that might result from the public hazard; (III) That a specific, serious, and substantial economic interest has been demonstrated that clearly outweighs any possible adverse effect that nondisclosure of the information to persons other than the parties to the action will have upon the general public health, welfare, or safety; and (IV) That no less restrictive means other than nondisclosure of the information will adequately and effectively protect the specific economic interest asserted. (2) Nothing in this section relieves the party seeking nonpublic disclosure from any duties arising under other provisions of law, court rules regarding discovery, or other court rules. 25-5-1205. Intervention to oppose motion to protect documents and things. Nonparties, including but not limited to representatives of the news media, may intervene as a matter of right for the limited purpose of opposing a motion to protect documents and things and participating in any hearing thereon, upon payment of the fee required for filing a nonjury complaint to the clerk of the court where the action is filed. 25-5-1206. Frivolous, groundless, or vexatious actions. The filing of a motion for a protective order pursuant to this part 12 is subject to part 1 of article 17 of title 13, C.R.S., relating to frivolous, groundless, or vexatious actions. 25-5-1207. Void and voidable contracts. (1) Notwithstanding any statute or rule to the contrary, any portion of an agreement, contract, or understanding of any kind, whether express or implied, that has the purpose or effect of concealing a public hazard, or any information that may be useful to members of the public in protecting themselves from injury that may result from a public hazard, is void as being contrary to public policy and may not be enforced. The court in its discretion may impose sanctions on any party or attorney entering such an agreement, contract, or understanding, including dismissal of the action, entry of default judgment, preclusion of the admission into evidence of the documents or things subject to the void agreement, or the preclusion of the use of such documents or things as the basis of expert opinion or testimony in the action. (2) Notwithstanding any statute or any rule to the contrary, an agreement to settle a claim relating to a public hazard may not be predicated or conditioned upon the nondisclosure of information subject to this part 12. (3) Notwithstanding any statute or any rule to the contrary, any person who learns of an agreement in violation of this part 12 may file and serve upon the parties to the action a suggestion of violation of this part 12 with the court in which the action is filed and may intervene as a matter of right for the limited purpose of contesting the agreement and participating in any hearing thereon, upon payment of the fee required for filing a nonjury complaint to the clerk of the court where the action is filed. The court shall set the matter for hearing within fourteen days after such filing. 25-5-1208. Settlements. Nothing in this article shall prohibit orders or agreements for the nondisclosure of the monetary amount of the settlement of any action relating to a public hazard; however, the fact of such settlement is subject to the provisions of this part 12. 25-5-1209. Severability. If any provision of this part 12 or its application to any persons or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this part 12 that can be given effect without the invalid provision or application, and to this end the provisions of this part 12 are severable. SECTION 2. Effective date - applicability. This act takes effect upon signature of the governor and applies to all actions pending and all orders, judgments, agreements, contracts, or understandings of any kind entered into or occurring on or after said date. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.