Today's Law As Amended

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AB-889 Secrecy agreements.(2017-2018)



SECTION 1.
 It is the intent of the Legislature to better protect Californians from death or substantial injury caused by any danger to the public health or safety, including defective products and environmental hazards, by creating a presumption against secrecy that protects the openness of information acquired through discovery. This presumption is to apply to settlement and confidentiality agreements, whether or not filed with the court, and to all stipulations for protective orders that would limit the disclosure of information acquired through discovery.

SEC. 2.

 Section 1002 of the Code of Civil Procedure, as amended by Section 24 of Chapter 561 of the Statutes of 2017, is amended to read:

1002.
 (a) As used in this section, the following terms have the following meanings:
(1) “Danger to the public health or safety” means a defective product or environmental condition that has caused or is likely to cause repeated significant or substantial bodily injury or death to one or more persons.
(2) “Protective order” means an order issued by a judge that prevents the disclosure or dissemination of confidential information within documents that are obtained during discovery or in the course of litigation, including an order requiring a party to return documents to an opposing party at the end of the litigation.
(3) “Trade secret” has the same meaning as set forth in Section 3426.1 of the Civil Code.
(a) (b)  Notwithstanding any other law, a provision within a settlement agreement that prevents the disclosure of factual information related to the action is prohibited in any civil action the factual foundation for which establishes a cause of action for civil damages for any of the following:
(1) An act that may be prosecuted as a felony sex offense.
(2) An act of childhood sexual abuse, as defined in Section 340.1.
(3) An act of sexual exploitation of a minor, as defined in Section 11165.1 of the Penal Code, or conduct prohibited with respect to a minor pursuant to Section 311.1, 311.5, or 311.6 of the Penal Code.
(4) An act of sexual assault, as defined in paragraphs (1) to (9), inclusive, of subdivision (e) of Section 15610.63 of the Welfare and Institutions Code, against an elder or dependent adult, as defined in Sections 15610.23 and 15610.27 of the Welfare and Institutions Code.
(c) Notwithstanding any other law, a provision within a settlement agreement that prevents the disclosure of factual information related to the action is prohibited in any civil action the factual foundation for which establishes a cause of action for civil damages regarding a defective product or environmental condition that poses a danger to public health or safety.
(b) (d)  Notwithstanding any other law, in a  there shall be a presumption that disclosure of information relating to a  civil action described in paragraphs (1) to (4), inclusive, of subdivision (a), a court  subdivision (b) or (c) shall not be restricted, and a court or arbitral tribunal  shall not enter, by stipulation or otherwise, an  a protective  order that restricts the disclosure of information in a manner that conflicts with subdivision (a). described in those subdivisions, except as provided in subparagraph (C) of paragraph (2) of subdivision (e). This subdivision does not prevent a court from issuing a protective order if the documents or information sought to be covered by the order include trade secrets or proprietary information. 
(c) (e)  (1)  Subdivisions (a) (b)  and (b) (d)  do not preclude an agreement preventing the disclosure of any medical information or personal identifying information, as defined in subdivision (b) of Section 530.55 of the Penal Code, regarding the victim of the an  offense listed in subdivision (a) (b)  or of any information revealing the nature of the relationship between the victim and the defendant. This subdivision paragraph  shall not be construed to limit the right of a crime victim to disclose this information.
(2) Subdivisions (c) and (d) do not preclude an agreement preventing the disclosure of any of the following relating to a cause of action described in subdivision (c):
(A) Medical information or personal identifying information, as defined in subdivision (b) of Section 530.55 of the Penal Code, regarding a person injured by a defective product or environmental condition.
(B) The amount of a settlement.
(C) Information relating to a trade secret, if the party seeking to prevent its disclosure moves the court or arbitral tribunal for a protective order. The order shall be narrowly tailored and narrowly construed. A court is not obligated to review any documents that are subject to a requested protective order if the moving party attests, under penalty of perjury, that the documents do not contain evidence showing that the party responsible for the product or condition knows or should know that the product or condition is an ongoing danger to the public health or safety. If the party moving for a protective order does not attest to this fact, the court may refuse to issue the order or may hold a hearing requiring the moving party to show good cause as to why the protective order should be issued without the attestation.
(d) (f)  Except (1)   as authorized by subdivision (c), a  A  provision within a settlement agreement that prevents the disclosure of factual information related to the action described in subdivision (a) (b)  that is entered into on or after January 1, 2017, is void as a matter of law and against public policy.
(2) A provision within a settlement agreement that prevents the disclosure of factual information related to the action described in subdivision (c) that is entered into on or after January 1, 2019, is void as a matter of law and against public policy.
(e) (g)  An attorney’s failure to comply with the requirements of this section by demanding that a provision be included in a settlement agreement that prevents the disclosure of factual information related to the action described in subdivision (a)  subdivisions (b) and (c)  that is not otherwise authorized by subdivision (c) this section  as a condition of settlement, or advising a client to sign an agreement that includes such a provision, may be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such case brought to its attention.