Commentary : Open Records Can Violate Privacy : Law: Sunshine in the courts will throw the civil justice system into the dark ages.

Very few of us would disclose medical, financial or other personal information to strangers without reliable guarantees of confidentiality. So it’s reasonable to expect that there are similar guarantees when you’re involved in a private lawsuit and the court requires you to disclose information to your adversary--often a stranger--that may be confidential, embarrassing, derogatory or intimate. If you refuse, you can be fined, lose your case, and in an extreme situation, be sent to jail until you obey the court’s order. Unfortunately, the California Legislature in early September may vote to prevent courts from protecting confidential information disclosed in some lawsuits.

The “Sunshine in the Courts Act” provides more glare than illumination. It would take away a court’s power in certain cases to protect the privacy and property rights that litigants have in confidential information, such as medical records, research, trade secrets or intellectual property. This is strange legal policy for a state whose economy depends on the confidential research and intellectual property of the computer and entertainment industries.

This proposal won’t improve the California court system. The legislation would create more work for already overburdened California courts. Judges would be required to review every page of countless documents before granting confidentiality. Today, thousands of documents are commonplace in a single case. The legislation would make longer delays inevitable in a court system that already moves at a snail’s pace.

These distractions might be tolerable if the legislation addressed a pressing problem. But the lack of any evidence that there’s a problem makes the “Sunshine in the Courts Act” insupportable. It can do real harm, but it is unlikely to do any good. Why legislate to fix something that’s not broken?

The sponsors of the bill claim information affecting public health and safety may be hidden from the public behind secrecy agreements in cases involving financial fraud, environmental hazards and product defects. The distinguished Federal Judicial Center in Washington has conducted empirical research on these claims and I have studied the subject for almost 10 years. We both have concluded that the facts don’t support the allegations.

Consider how information is developed in a lawsuit. The plaintiff believes he or she is injured, has some idea how it happened and goes to a lawyer. The lawyer looks into it, and if the lawyer believes the plaintiff has a chance to recover, a lawsuit is filed. At any point the plaintiff or the lawyer can disclose everything they know to the media, the government or anyone else. Often that is exactly what happens. Further, initial court filings are almost always open to the public, especially to relevant state and federal investigators and government agencies. In today’s world, the media and regulators shine plenty of light on any lawsuit that is of public interest.

Once the lawsuit is underway, discovery begins. That’s when the parties exchange information so that each side can search for the truth. Much of it is meaningless; it isn’t even evidence. But much of it is personal or commercially valuable. That’s why the parties might request a confidentiality order to protect important research, business or personal information.

Existing law protects the public because that order won’t be granted unless a very good reason is shown. Sensible and sensitive California judges are not likely to allow litigants to conceal information when that might hurt the public.

Confidentiality is important to make people willing to disclose confidential information that is needed in the discovery process. Without it, the parties will fight tooth and nail to protect privacy and property rights in confidential information--most of which will never be used at trial.

Truth and justice will suffer if courts don’t have broad authority to balance the competing interests. Existing California law gives them that. There is no evidence that the current system is being abused and every reason to believe public health and safety already are protected.