72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1279
Senate Bill 320
Sponsored by Senator DEVLIN
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that court may not enter or enforce confidentiality
agreement, settlement agreement, stipulated agreement, protective
order or judgment that prevents disclosure to public of document
or other information that is evidence of financial fraud,
defective product or environmental hazard, unless court has
entered protective order for document or information.
A BILL FOR AN ACT
Relating to disclosure of information.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 5 of this 2003 Act:
(1) 'Defective product' means a product that is capable of
causing personal injury, death or property damage by reason of:
(a) A design, inspection, testing, manufacturing or other
defect in the product;
(b) A failure to warn regarding the product; or
(c) A failure to properly instruct in the use of the product.
(2) 'Environmental hazard' means a release or threatened
release of a substance that poses a threat to public health or
safety.
(3) 'Financial fraud' means any fraudulent insurance practice
or any fraudulent plan or scheme to sell an investment product to
the general public. + }
SECTION 2. { + (1) Notwithstanding any other provision of law,
in any action arising out of financial fraud, a defective product
or an environmental hazard, the court may not enter or enforce
any confidentiality agreement, settlement agreement, stipulated
agreement, protective order or judgment that prevents disclosure
to the public of any document or other information that is
evidence of financial fraud, a defective product or an
environmental hazard, unless the court has entered a protective
order for the document or information.
(2) A court may not enter a protective order for a document or
other information described in subsection (1) of this section
unless one of the following applies:
(a) Disclosure would reveal trade secrets, and the document or
other information cannot be edited in a manner to prevent that
disclosure.
(b) Disclosure would reveal confidential business information,
the document or other information cannot be edited in a manner to
prevent that disclosure and the disclosure would cause serious
competitive and economic harm to the party opposing disclosure.
(c) Disclosure would reveal confidential personal information,
the document or information cannot be edited in a manner to
prevent that disclosure and the information is so inherently
invasive of the privacy interests of the party opposing
disclosure as to outweigh any danger to the public arising out of
the concealment of the document or information. + }
SECTION 3. { + (1) Any party seeking a protective order for
documents or other information subject to section 2 of this 2003
Act has the burden of establishing that the document or other
information should not be subject to public disclosure. Any
document or other information that is not specifically identified
in the motion for a protective order is not subject to the
protective order.
(2) In any proceeding in a motion for a protective order under
this section, the court shall separately examine the grounds
asserted for nondisclosure of each document and other item of
information. The court shall also separately consider each
document and other item of information for the purpose of
establishing the scope of any protective order that may be
entered. The court shall make separate findings for each document
and other item of information.
(3) A court shall enter a protective order under this section
only for good cause shown. In deciding motions under this
section, the court shall attempt to provide for broad
availability of documents and other information that constitute
evidence of financial fraud, a defective product or an
environmental hazard.
(4) If the court finds that there are grounds for entry of a
protective order, and also finds that the financial fraud,
defective product or environmental hazard evidenced in the
documents or other information constitutes a serious and imminent
danger to the public, the court shall enter the protective order
and immediately provide the documents or other information to the
Attorney General. The Attorney General shall be bound by the
protective order and may not make public the documents or other
information. If upon investigation the Attorney General
determines that the danger to the public cannot be avoided
through actions other than disclosure of the documents or other
information, the Attorney General shall file a motion with the
court requesting that the court lift the order as to specific
documents or items of information. The court shall lift the
protective order as to those specific documents or items of
information if the court finds that the danger to the public
cannot be avoided through actions other than disclosure of the
documents or other information. + }
SECTION 4. { + (1) A person that is not a party to an
agreement, order or judgment subject to section 2 of this 2003
Act may contest the agreement, order or judgment by filing a
motion in the court in which the action was commenced. The burden
is on the person filing a motion under this section to show cause
for disclosure of the protected documents or other information.
The court shall review the documents or other information in
camera. If the court finds there are documents or other
information that are subject to disclosure under sections 1 to 5
of this 2003 Act, the court shall allow disclosure of those
documents or other information.
(2) If a protective order is entered under section 3 of this
2003 Act for documents or other information, any person may seek
review by a petition for a writ of mandamus. The burden is on the
person filing a petition under this section to show cause for
disclosure of the protected documents or other information. The
court shall review the documents or other information in camera.
The court's review is limited to determining whether there was
any abuse of discretion by the court that entered the protective
order. An abuse of discretion is established if the reviewing
court determines that entry of the protective order was not
supported by substantial evidence in the record.
(3) Any motion under subsection (1) of this section must be
filed within five years after the date on which the agreement is
executed or within five years after the date on which the order
or judgment is entered. Any petition for a writ of mandamus under
subsection (2) of this section must be filed within five years
after the date of the issuance of the challenged protective
order.
(4) Any person filing a motion or petition under this section
who is the prevailing party is entitled to reasonable attorney
fees from the party seeking protection. The court shall award
reasonable attorney fees to a prevailing party who opposes a
motion or petition under this section if the court determines
that the person filing the motion or petition had no objectively
reasonable basis for filing the motion or petition. + }
SECTION 5. { + (1) Sections 1 to 5 of this 2003 Act do not
affect the authority of a court to prohibit the enforcement of
any confidentiality agreement, settlement agreement, stipulated
agreement, protective order or judgment in any case.
(2) A protective order under sections 1 to 5 of this 2003 Act
is not required to prevent disclosure of the amount of money paid
in settlement of a claim under any confidentiality agreement,
settlement agreement, stipulated agreement, protective order or
judgment.
(3) Sections 1 to 5 of this 2003 Act do not affect the
confidentiality of communications, negotiations or settlement
discussions in mediations as provided for in ORS 36.220 to
36.238. + }
SECTION 6. { + Sections 1 to 5 of this 2003 Act apply to all
confidentiality agreements, settlement agreements, stipulated
agreements, protective orders and judgments, whether entered into
before, on or after the effective date of this 2003 Act. + }
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