HOUSE BILL No. 4844 May 27, 1997, Introduced by Reps. Willard, Gire, Goschka, Richner, Hale, Brewer, Freeman, Raczkowski, Jaye, Baird, Gubow, Ciaramitaro and Scott and referred to the Committee on Judiciary. A bill to prohibit the concealment of certain facts in a civil action; and to prohibit certain orders and agreements aris- ing out of litigation. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 1. This act shall be known and may be cited as the 2 "sunshine in litigation act". 3 Sec. 2. This act applies to civil actions commenced in any 4 court of this state on or after January 1, 1998, in which the 5 pleadings, affidavits, and other proofs show that there is a gen- 6 uine issue of material fact as to whether a device, instrument, 7 person, procedure, or product is any of the following: 8 (a) The cause of a personal injury. 9 (b) Likely to cause personal injury. 10 (c) The cause of the pollution, impairment, or destruction 11 of air, water, or other natural resource. 00975'97 VPW 2 1 (d) Likely to cause the pollution, impairment, or 2 destruction of air, water, or other natural resource. 3 Sec. 3. Except as provided in this act, the court shall not 4 enter an order that prohibits disclosure of either of the 5 following: 6 (a) Information concerning a question or issue described in 7 section 2. 8 (b) Information concerning the identity of a defendant or 9 the terms of a settlement agreement relating to a question or 10 issue described in section 2. 11 Sec. 4. Except as provided in this act, any portion of an 12 agreement to settle a claim or lawsuit that prohibits disclosure 13 of information described in section 3 is void. 14 Sec. 5. Except as otherwise provided in section 6, the 15 court may enter an order prohibiting disclosure of information 16 covered by this act only if the information constitutes 1 or more 17 of the following: 18 (a) Information of a personal nature, the public disclosure 19 of which would invade individual privacy. 20 (b) A trade secret, the public disclosure of which would 21 substantially impair the competitive position of a party who in 22 good faith disclosed the information in the course of a civil 23 action. 24 (c) Information subject to a privilege recognized by statute 25 or court rule. 26 Sec. 6. (1) A party to a civil action may file a written 27 motion for an order to prohibit disclosure of information subject 00975'97 3 1 to this act. Upon the filing of such a motion, the court shall 2 do the following: 3 (a) Provide any interested person the opportunity to be 4 heard concerning the granting of the motion. 5 (b) Examine the information in camera. 6 (2) The court may grant a motion described in subsection (1) 7 only if the moving party identifies the specific interest to be 8 protected, and establishes each of the following by clear and 9 convincing evidence: 10 (a) A substantial probability that an order prohibiting dis- 11 closure of the information will protect the specific interest 12 asserted. 13 (b) That a less restrictive means of protecting the asserted 14 specific interest, including an order prohibiting disclosure of 15 only a portion of the information, will not provide adequate and 16 effective protection. 17 (c) That the damage caused to the specific interest asserted 18 by disclosure would outweigh the public interest in disclosure. 19 Sec. 7. If the court grants a motion to prohibit disclosure 20 of information pursuant to section 6, the court shall enter on 21 the public record each of the following: 22 (a) A description of the information that does not reveal 23 the protected information. 24 (b) The court's findings as to each of the factors set forth 25 in section 6(2). 26 Sec. 8. Any person may file a motion to set aside an order 27 prohibiting disclosure of information subject to this act or may 00975'97 4 1 file an objection to entry of a proposed order. Upon the filing 2 of a motion to set aside the order, the court shall give notice 3 to the parties to the action and treat the motion in the same 4 manner as a motion to prohibit disclosure. If the court denies a 5 motion to set aside or enters an order prohibiting disclosure 6 after objection is filed, the moving or objecting person may file 7 an application for leave to appeal in the same manner as a party 8 to the action. 9 Sec. 9. In an action or proceeding challenging an order 10 prohibiting disclosure of information subject to this act, a 11 person involved in the gathering or preparation of information 12 for broadcast, cablecast, or publication shall not be required to 13 disclose the identity of an informant, any unpublished informa- 14 tion obtained from an informant, or any unpublished matter or 15 documentation, in whatever manner recorded, relating to a commu- 16 nication with an informant. 17 Sec. 10. This act does not limit or preclude any right 18 available under the freedom of information act, 1976 PA 442, MCL 19 15.231 to 15.246. 00975'97 Final page. VPW