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AB-889 Secrecy agreements: public dangers.(2017-2018)

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Date Published: 02/16/2017 09:00 PM
AB889:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 889


Introduced by Assembly Member Mark Stone

February 16, 2017


An act to add Section 1002.5 to the Code of Civil Procedure, relating to secrecy agreements.


LEGISLATIVE COUNSEL'S DIGEST


AB 889, as introduced, Mark Stone. Secrecy agreements: public dangers.
Existing law specifies that certain types of confidential or privileged information shall not be introduced as evidence in a court action. Existing law also generally permits the parties to a civil action to include, as a condition to a settlement, a prevision requiring that information about the settlement or the underlying dispute be kept confidential.
This bill would provide that in an action based upon the existence of a danger to the public health or safety, as defined, information relating to the danger that was discovered during the course of litigation shall not be kept secret pursuant to an agreement of the parties or a court order, except pursuant to a court order based upon independent findings, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


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, environmental hazards, and individuals or entities that physically harm others, 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 1002.5 is added to the Code of Civil Procedure, to read:

1002.5.
 (a) As used in this section, the following terms have the following meanings:
(1) “Bodily injury” includes psychological trauma resulting from an act, or repetitive acts, of harm.
(2) “Danger to the public health or safety” means an instrumentality, including a device, instrument, substance, person, entity, procedure, or product, or a condition of a device, instrument, substance, person, entity, procedure, or product, that has caused or is likely to cause significant or substantial bodily injury or death.
(3) “Independent finding” means a finding by the court based solely on the court’s review of the law as applied to the facts of the case, and not based in whole or in part on a stipulation of the parties to keep information secret or arguments in support of a stipulation to keep information secret.
(4) “Personally identifiable information” includes the following:
(A) The identity of, or personal information about, victims of harm, including children and victims of abuse.
(B) Confidential business information, such as the personal addresses of corporate officers or board members.
(b) Notwithstanding any other law, in any civil action or administrative proceeding in which the pleadings state facts relevant to the existence of a danger to the public health or safety, an agreement between the parties that restricts the disclosure of information relating to a danger to the public health or safety shall be void as contrary to public policy and shall not be enforced by a court or tribunal, unless the agreement is entered by the court pursuant to paragraph (2) of subdivision (c).
(c) (1) Except as provided in paragraph (2), in any civil action or administrative proceeding in which the pleadings state facts relevant to the existence of a danger to the public health or safety, a court shall not enter, by stipulation or otherwise, an order that does any of the following with respect to a danger to the public health or safety:
(A) Restricts the disclosure of information relating to the danger.
(B) Approves a settlement agreement that would restrict the disclosure of information about the danger.
(C) Restricts access to court records containing information about the danger.
(2) A court may enter an order otherwise prohibited by this subdivision if it first makes an independent finding that all of the following criteria are met:
(A) The public interest in the disclosure of the information is outweighed by a specific and substantial overriding interest in maintaining the confidentiality of the information or records in question, and the overriding interest supports keeping the information secret. In applying this factor, there shall be a rebuttable presumption that protecting an individual’s personally identifiable information relating to financial, health, or other similar information outweighs the need for disclosure.
(B) A substantial probability exists that the specific and substantial interest will be substantially prejudiced if the information is not kept secret.
(C) The request for an order is no broader than necessary to protect the specific and substantial overriding interest asserted, and the order is narrowly tailored to protect the secrecy only of that information for which an overriding specific and substantial overriding interest exist.
(D) A less restrictive means to avoid the substantial prejudice to the specific and substantial overriding interest does not exist.
(E) The information is to be kept secret no longer than necessary to meet the requirements of this paragraph.
(3) An order entered based pursuant to paragraph (2), other than an order approving a settlement agreement, shall not remain in effect after the entry of final judgment or other final determination, unless at the time of entry the court makes a separate independent finding that the requirements of paragraph (2) continue to exist.
(4) A party who is the proponent for the entry of an order under paragraph (2) or (3) has the burden of proof in obtaining the order.
(d) This section does not apply to or affect either of the following:
(1) The confidentiality of preagreement negotiations, settlement discussions between mediation participants pursuant to Chapter 2 (commencing with Section 1115) of Division 9 of the Evidence Code, or of evidence protected by Section 1153.5 or 1154 of the Evidence Code.
(2) Actions relating to a business dispute, including actions for breach of contract, in which all the parties are business entities.
(e) The State Bar shall investigate allegations that an attorney advocated for, or advised a client to sign, a settlement agreement whose provisions are void pursuant to subdivision (b), and it may discipline an attorney for doing so.