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1 Robert Timothy Reagan, The Hunt for Sealed Settlement Agreements 439 (2006)

handle is hein.congcourts/huntforse0001 and id is 1 raw text is: THE HUNT FOR SEALED SETTLEMENT AGREEMENTS ROBERT TIMOTHY REAGAN* There is substantial concern over courts sealing settlement agree- ments.1 This article describes how the Federal Judicial Center conducted some research on the matter as it pertains to federal civil cases at the re- quest of a United States senator and the Civil Rules Advisory Committee.2 We found that the sealing of settlement agreements in federal courts is rare, and that typically the only part of the court record kept secret by the sealing of a settlement agreement is the amount of settlement. I. THE CONVENTIONAL STORY The following is the story of the secret injury, according to conven- tional wisdom. Big Bad Corporation manufactured Product X. Helpless Citizen used Product X and was severely injured. So Helpless Citizen sued Big Bad Corporation, which settled the suit before trial for $1 zillion. Be- cause of a sealed settlement agreement, the public does not know that Help- less Citizen was hurt by Product X and that Big Bad Corporation was willing to compensate her for her injury. Neither does the public know that scads and scads of other Product X users were also injured and secretly paid off. The following is a typical example of how the news media have cov- ered the secret injury. CBS's popular television program 60 Minutes II presented a story in 2003 reporting that the federal District of South Caro- lina addressed the secret injury problem by banning sealed settlement agreements.3 A teacher named Annie Davis bought a prescription drug from CVS.4 The drug made her so sick that she needed to be hospitalized, * Senior research associate, Federal Judicial Center. A.B. Stanford University 1980 (Psychol- ogy, Human Biology); Ph.D. Harvard University 1986 (Psychology); J.D. University of California, Hastings College of the Law 1993. The views expressed herein are those of the author and not necessar- ily those of the Federal Judicial Center. 1. See Laurie Kratky Dore, Settlement, Secrecy, and Judicial Discretion: South Carolina's New Rules Governing the Sealing of Settlements, 55 S.C. L. REv. 791, 792-94 (2004). 2. For more information on research projects by the Federal Judicial Center for the Civil Rules Advisory Committee, see Thomas E. Willging, Past and Potential Uses of Empirical Research in Civil Rulemaking, 77 NOTRE DAME L. REV. 1121 (2002). 3. 60 Minutes 1: Hush Money (CBS television broadcast Jan. 15, 2003). 4. Id. 439

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