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DAVID H, REME.~ COVINGTON ~ BURLING PENNSYLVANIA AVENUe. N.W. P.O. eOX 756~ WASHINGTON. D.C, ;~004.4. VIA~FACSIMILE November 4, 1991 intrmiuced. Attached ,MEMORA~,,,I)UM is a two-page mumo in opposition to SB 213 as Also attached is a substitute amendment, received from Kirkland & Ellis, that Senator Adelman is circulating. Tim proposed substitute is no less objectionable than the original version of SB 213, despite efforts to make it seem more reasonable. The arguments that apply to th~ bill as introduced remain applicable t,3 the proposed substitute. If you want a separate memorandum specifically tailored to the proposed substitute, please let me know. David H. Remes jsb attachments Mary Cramer M. William Gerrard Alice O'Connor Margaret Rita TI23970812

November 4, 1991 WHY SB 213 ,SHOULD BE RE2F_,C'FED SB 213 would force virtually all information produced in civil lawsuits to be made public, regardless t~t' the wishes of the parties or the court. The bill would nullify Rule 804.01(3) of the Wisconsin Rules of CMI Procedure, which authorizes trial courts to enter protective orders if (but only if) the court finds that there is "good cau:~e" to do so, SB 213 specifies cert,.in conditions under which protective orders could be issued, but as a practical matter it is doubtful that those conditions could ever be met. The bi,II would thus tie the hands of our courts in an area where the U.S, Supreme Court has stressed that trial courts should have "substantial discretion." Seattle Tim,~.S Co. v, Rh.inehart~ 467 U.S. 20, 33 (1984), SB 213 would allow one person to destroy another's privacy simply by filing a lawsuit and seeking discovery, Unfair to Defendants. Bits and pieces of information produced during discovery do not prove that a wrong has been committed. Yet., un.tess SB 213 contemplates a mini.trial on the merits of ~. plaintiff's claim whenever a protective order is requeste, d, the bill assumes that the mere allegation of fau.it or injury should be enough to strip a delbndant of any chtim of privacy. Unfair to Plaintiffs and Tttird Parties, Under SB 213, the plaintiff's own medical and personal history could be made public. Individual consumer complaint letters could become matters of p~ablic record whenever some- one sues a company fi.~r in.juries allegedly caused by a product. The records of ir..dMdual blood donors could be revealed it' suit were. brought against a hospital or the Red Cross involving blood transfusions. SB 213 would sharply incr~.se ~the workload of the courts, imposing crippling costs on the judicial system. The bill would discoraag~.' settlements, sending many more cases to trial. If all information produced in discovery is to be made public, many defendants will opt t.o litigate "nuisance" suits in order to prove their "innocence." T!23970813

-2.- The bill would clog the court~ with satellite Ihigation over discovery requests ~nd protective orders. If all information produced in discovery is to be made public, each discovery request, will become a major battle- ground. F.~aeh protective order request would require a mini-trial on the merits of the plaintiff's claim. The bill would promote "clone" or "cookie cutter~' law,suits. Plaintiffs' lawyel:s already sell information obtained in lawsuits t~; each other as "litigation kits." This practice of promoting additional lawsuits (and lawyers' fee~) would be vastly expanded if judges can no longer issue protective ~rders. Amazingly, SB 213 would expressly prohibit the use of protec- tive orders as a means of promoting judicial ef:ficieney! SB 213 would damage Wise.xmsirt's job climate by discouraging settlements, by promoting satellite litigation over discovery requests and protective orde:rs, and by spawning "clone" or "cookie cutter" law~uit,~, SB 213 would not add mater~dly to public safety. No one has demonstrated that judges are deliberately concealing known hazards nor is it likely that judges would allow concealment of such hazards, The "horror" t;tori,~s told by trial lawyers are exaggerated. SB 213 would improperly make ~e courts do the work of regu- latory agencies. Proposals to ban protective orders rest on a misconception that the public depends on information devel- oped in private tawsuits to learn about product defects and other hazards. In fact, numerous federal statutes and regula- t.ions compel manufacturers 'to disclose claimed defects and hazards to regulatory agencies, and that information is available to the public. If these reporting requirements need to be strengthened, that would makt; more sense than tying the hands of the courts, if regulatory agencies are not doing their jobs, disrupting the civil justice system .is not the solution. A proposed substitute being eircLtlated by Senator Adelman would render SB 213 no less ~bjeetionable, TI23970814

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