80 FR 57046 - Request for Public Comments on NHTSA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration Federal Register Volume 80, Issue 182 (September 21, 2015)
National Highway Traffic Safety Administration
Federal Register Volume 80, Issue 182 (September 21, 2015)
| Page Range | 57046-57049 | |
| FR Document | 2015-23638 |
[Federal Register Volume 80, Number 182 (Monday, September 21, 2015)] [Notices] [Pages 57046-57049] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-23638] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2015-0095; Notice 1] Request for Public Comments on NHTSA Enforcement Guidance Bulletin 2015-01: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Request for public comments. ----------------------------------------------------------------------- SUMMARY: NHTSA's ability to identify and define safety-related motor vehicle defects relies in large part on manufacturers' self-reporting. However, although federal regulations may require them to report certain information to NHTSA, manufacturers do not always do so, or do not do so in a timely manner. Additionally, the information a manufacturer is required to report varies greatly depending on the product and company size and purpose. Given these constraints, safety- related information developed or discovered in private litigation is an important resource for NHTSA. This proposed Enforcement Guidance Bulletin sets forth NHTSA's current thinking on this topic, and guiding principles and best practices to be utilized in the context of private litigation. To the extent protective orders, settlement agreements, or other confidentiality provisions prohibit information obtained in private litigation from being transmitted to NHTSA, such limitations are contrary to Rule 26 of the Federal Rules of Civil Procedure, its state corollaries, and sound principles of public policy. Although such restrictions are generally prohibited by applicable rules and law, the Agency recommends that litigants include a specific provision in any protective order or settlement agreement that provides for disclosure of relevant motor vehicle safety information to NHTSA, regardless of any other restrictions on the disclosure or dissemination of such information. This notice solicits comments from the public, from counsel, and from other interested parties concerning this proposed enforcement guidance, and best practices to be followed by litigants in private litigation regarding protective orders and settlement agreements that contain confidentiality provisions limiting disclosure of safety- related information. DATES: All comments should be submitted early enough to ensure that Docket Management receives them not later than October 19, 2015. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods:Federal eRulemaking Portal: go to http://www.regulations.gov. Follow the online instructions for submitting comments. Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. Hand Delivery or Courier: U.S. Department of Transportation, West Building Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC, 20590 between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Fax: (202) 493-2251. Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket at 202-366-9324. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Kara Fischer, Office of the Chief Counsel, NCC-111, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-366-8726). SUPPLEMENTARY INFORMATION: In this notice, NHTSA has begun assembling for guidance and informative purposes an Enforcement Guidance Bulletin which sets forth guiding principles and best practices for private litigants utilizing protective orders and settlement agreements with confidentiality provisions. NHTSA is not establishing a binding set of rules on best practices, or even suggesting that a single set of best practices would apply in all situations. The Agency fully realizes that best practices may vary widely depending on circumstance, and [[Page 57047]] private litigants remain free to choose the practices that best fit their needs in pursuing litigation. However, since NHTSA recognizes the public interest in this topic, we solicit public comment before issuing a final ``Enforcement Guidance Bulletin'' document. Commenters who recommend specific best practices should be careful to address the practical impact that those practices may have on individuals and entities of differing size, and the relative costs and benefits of implementing various practices. After receiving comments, we will issue a subsequent notice delineating a final Enforcement Guidance Bulletin for informative purposes. We will also post the Enforcement Guidance Bulletin on the Agency's Web site for easy reference. In light of the foregoing, NHTSA proposes the following Enforcement Guidance for private litigants pertaining to the use of confidentiality provisions in protective orders and settlement agreements: The National Highway Traffic Safety Administration (``NHTSA'' or ``the Agency'') is tasked with, among other things, setting Federal Motor Vehicle Safety Standards (``FMVSS''), identifying and ensuring the remedy of safety-related defects, and monitoring and enforcing compliance with these standards to safeguard the well-being of the American public. The only way the Agency can fully achieve these objectives is if it has the necessary information within its grasp, including information discovered or identified in private litigation. NHTSA's ability to identify and define safety-related motor vehicle defects relies in large part on timely and accurate reporting by manufacturers, suppliers, and various parties throughout the industry, whether by statutory or regulatory requirement or pursuant to compulsory process. Although federal law may require industry participants to report certain information to NHTSA, they do not always do so, or do not do so in a timely manner. Additionally, the type of information an industry participant is required to report varies greatly depending on the product and company size and purpose. While certain entities are required to report both deaths and injuries resulting from the use of their products, others only must report deaths. In those cases, in the absence of a fatal incident a potentially defective product may not come across NHTSA's radar until dozens, if not hundreds, of people have sustained serious injury--if it ever reaches NHTSA at all. Given these constraints, safety-related information developed or discovered in private litigation is an important resource for NHTSA. Yet confidentiality restrictions imposed as part of a protective order or settlement agreement in private litigation--whether court-sanctioned or privately negotiated--often prevent parties from providing information about potentially dangerous products to the Agency. As many scholarly articles have noted, as has history has borne out, such restrictions have kept critical safety information out of the hands of both regulators and the public. As a matter of law and sound public policy, NHTSA cannot countenance this situation. There is no doubt that confidentiality provisions, protective orders, and the sealing of cases are appropriate litigation tools in some circumstances. In most instances, however, the interests of public health and safety trump any confidentiality interests. In matters that concern the safety of the American driving public and pedestrians, it is important that entities and individuals are not prevented from providing relevant information to the very Agency tasked with ensuring that safety. To the extent protective orders, settlement agreements, or other confidentiality provisions prohibit vehicle safety-related information from being transmitted to NHTSA, such limitations are contrary to established principles of public policy and law, including Rule 26 of the Federal Rules of Civil Procedure and its state corollaries which require a showing of good cause to impose confidentiality. The recent General Motors ignition switch and Takata airbag recalls are but two examples of how vital early identification of motor vehicle risks or defects is for the safety and welfare of the American public. To further this important public policy, the Agency encourages and recommends that parties include a provision in any protective order or settlement agreement that--despite whatever other restrictions on confidentiality are imposed--specifically allows for disclosure of relevant motor vehicle safety information to NHTSA and other applicable government authorities. I. Legal and Policy Background ``Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case.'' Brown v. Advantage Eng'g, Inc., 960 F.2d 1013, 1016 (11th Cir. 1992). As a general rule, the public is permitted ``access to litigation documents and information produced during discovery.'' Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). Where there is a presumptive right of public access under the federal rules, courts have discretion upon a showing of ``good cause'' to restrict access to documents or information ``to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'' Fed. R. Civ. P. 26(c)(1). As the Seventh Circuit has stated, Rule 26(c)'s good cause requirement means that, ``[a]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.'' Am. Telephone and Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1978); see also, Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988). Trial courts enjoy broad discretion in determining when to issue a protective order and the degree and scope of protection required. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). General allegations of harm, unsubstantiated by specific examples or articulated reasoning, however, are insufficient to warrant such an order. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). Rather, the burden is on the party seeking protection from disclosure to ``allege specific prejudice or harm'' that will result if the protective order is not granted. In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011), cert. denied, 132 S. Ct. 1867 (2012); In re Terra Intern., Inc., 134 F.3d 302 (5th Cir. 1998) (good cause requirement contemplates a particular and specific demonstration of fact as distinguished from conclusory statements); Glenmeade Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) (generalized allegations of injury insufficient to satisfy the good cause requirement for issuance of protective order); Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 954 n. 5 (8th Cir. 1979) (party seeking protective order bears burden of making ``good cause'' showing that the information being sought falls within scope of Rule 26(c) and that moving party will be harmed by its disclosure). Even if a court concludes that such harm will result from disclosure, it still must proceed to balance ``the public and private interests to decide whether a protective order is necessary.'' Phillips, 307 F.3d at 1211. See Shingara v. Skiles, 420 F.3d 301, 308 (3d Cir. 2005) (``[A] court always must consider the public interest when deciding whether to impose a protective order.''); Glenmede [[Page 57048]] Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (``[T]he analysis [of good cause] should always reflect a balancing of private versus public interests.''). In doing so, courts consider a number of factors, including: (1) Whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. Glenmede Trust Co., 56 F.3d at 483. See also In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d at 424. The public's interest in access to court records is strongest when the records concern public health or safety. See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C, 710 F.2d 1165, 1180-81 (6th Cir. 1983) (vacating district court's sealing of court records involving the content of tar and nicotine in cigarettes and emphasizing that the public had particularly strong interest in the court records at issue because the ``litigation potentially involves the health of citizens who have an interest in knowing the accurate `tar' and nicotine content of the various brands of cigarettes on the market''); see also United States v. General Motors, 99 FRD. 610, 612 (D.D.C. 1983) (the ``greater the public's interest in the case the less acceptable are restraints on the public's access to the proceedings''); In re Air Crash at Lexington, Ky., August 27, 2006, No. 5:06-CV-316-KSF, 2009 WL 16836289, at *8 (E.D. Ky. June 16, 2009) (noting the ``public has an interest in ascertaining what evidence and records the . . . Court [has] relied upon in reaching [its] decisions,'' and that ``the public interest in a plane crash that resulted in the deaths of forty-nine people is quite strong, as is the public interest in air safety''). In balancing the privacy interests of the party seeking protection, a court ``must consider the need for public dissemination, in order to alert other consumers to potential dangers posed by the product.'' Koval v. Gen. Motors Corp., 62 Ohio Misc. 2d 694, 699, 610 NE.2d 1199, 1202 (Com. Pl. 1990) (citing Hendricks v. Jeep Corp. (D. Mont. June 3, 1986), case No. CV-82-092-M-PGH (unreported) and United States v. Hooker Chemicals & Plastics Corp., 90 FRD. 421 (W.D.N.Y. 1981)). A number of states have enacted ``Sunshine in Litigation'' acts, which thrust the interests of public health and safety into the forefront by preventing parties from concealing safety hazards through settlement agreements or protective orders. Some, such as Florida, broadly forbid courts from entering protective orders that may have the ``purpose or effect of concealing a public hazard or any information concerning a public hazard'' or that ``may be useful to members of the public in protecting themselves from injury.'' Fla. Stat. Ann. Sec. 69.081 (West 2015). Others, such as Texas, establish a presumption that court records--including all documents filed with the court, unfiled settlement agreements, and unfiled discovery documents ``concerning matters that have a probable adverse effect upon the general public health or safety''--are open to the general public; records may be sealed only upon a showing that there is a specific, serious, and substantial interest in nondisclosure which clearly outweighs the presumption of public access and any probable effect on public health or safety. Tex. R. Civ. P. 76a. A federal corollary introduced on May 14, 2015, currently pending before the House of Representatives, H.R. 2336 (114th Congress, 2015- 2017), would create a presumption against protective orders and the sealing of settlements and cases ``in which the pleadings state facts that are relevant to the protection of public health or safety.'' The presumption would control unless a party asks a judge to find that a specific and substantial interest in maintaining secrecy outweighs the public health and safety interest and that the order is no broader than necessary to protect the privacy interest asserted. Id. It would also prohibit a court from approving or enforcing a provision that restricts a party from disclosing public health or safety information to any federal or state agency with authority to enforce laws regulating an activity related to such information. Id. Several states have taken a broader approach, enacting statutes and court rules to address the question of whether or not courts should enforce confidentiality agreements, regardless of the subject matter. The common theme of these statutes is a balancing of interests. For example, drawing upon federal precedent requiring consideration of the public interest at stake, Idaho Court Administrative Rule 32 directs courts considering shielding requests to first determine whether the interest in privacy or public disclosure predominates and to ``fashion the least restrictive exception from disclosure consistent with privacy interests.'' Idaho R. Admin. 32(f). See also Mich. Ct. R. 8.119(F) (records may be sealed upon showing of good cause and that no less restrictive means are available to protect the interest asserted); D.S.C. LCivR 5.03 (party must state why sealing is necessary and explain why less restrictive alternatives will not afford adequate protection). Indiana's legislature went a step further, requiring an affirmative showing that a public interest will be protected by sealing a record, and mandating that records shall be unsealed as soon as possible after the reason for sealing them no longer exists. Ind. Code Sec. 5-14-3-5.5 (2011). See also, Richard Rosen, Settlement Agreements in Com. Disputes, n. 103 Sec. 10.04 (2015) (citing to statutory provisions in California, Colorado, Michigan, Montana, New Hampshire, New York, Ohio, Oregon, South Carolina, and Utah). Although the specifics of each provision vary, all are consistent with the notion that the safety of public should be given considerable weight in determining whether to restrict access to information. Basic contract principles also dictate that the public health and safety concern should be of paramount significance in drafting and approving protective orders and settlement agreements. While parties are generally free to contract as they see fit, ``courts will not hesitate to declare void as against public policy contractual provisions which clearly tend to the injury of the public in some way.'' 17A C.J.S. Contracts Sec. 281 (2015) (internal citations omitted); see Thomas James Associates, Inc. v. Jameson, 102 F.3d 60, 66 (2d Cir. 1996) (``[C]ourts must not be timid in voiding agreements which tend to injure the public good or contravene some established interest of society.'') (internal quotations and citations omitted); see also Vasquez v. Glassboro Service Ass'n, Inc., 83 N.J. 86, 415 A.2d 1156 (1980) (citing text for general proposition that courts have broad power to declare agreements violative of public policy). ``While the term `public policy' lacks precise definition, . . . it may be stated generally as a legal principle which holds that no one may lawfully do that which has a tendency to injure the public welfare. . . .'' O'Hara v. Ahlgren, Blumenfeld and Kempster, 537 NE.2d 730 (Ill. 1989). ``An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in [[Page 57049]] conflict with the morals of the time.'' E & B Mktg. Enterprises, Inc. v. Ryan, 568 NE.2d 339, 209 Ill. App. 3d 626 (1st Dist. 1991). See also Johnson v. Peterbilt of Fargo, Inc., 438 NW.2d 162 (N.D. 1989) (``Public policy, with respect to contract provisions, is a principle of law whereby a contract provision will not be enforced if it has a tendency to be injurious to the public or against the public good.''). An agreement is unenforceable if the interest in its enforcement is outweighed by the public policy harmed by enforcement of the agreement. 17A C.J.S. Contracts Sec. 281 (citation omitted). In fact, the Florida Sunshine in Litigation Act specifically codifies this concept: ``Any portion of an agreement or contract which has the purpose or effect of concealing a public hazard, any information concerning a public hazard, or any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard, is void, contrary to public policy, and may not be enforced.'' Fla. Stat. Ann. Sec. 69.081(4). See also Ark. Code Ann. Sec. 16-55-122 (2011) (rendering void any settlement provision purporting to restrict disclosure of an environmental hazard). Although the Florida provision broadly addresses any contract, this notion is particularly applicable in the context of protective orders or settlement agreement terms that prevent litigants from disclosing information to NHTSA. The good cause requirements found in Rule 26 and related state provisions, and the doctrines underlying NHTSA's own regulations all advance the unassailable public policy of maintaining and preserving the health and welfare of the public. This strong policy has been realized and enforced by the refusal of many courts and litigants to engage in protective orders or settlement agreements that keep regulators and the public in the dark about potential safety hazards. See Culinary Foods, Inc. v. Raychem Corp., 151 FRD. 297 (N.D. Ill.), clarified 153 FRD. 614 (1993) (any information as to whether products liability defendant's products were dangerous, and whether defendant knew of dangers and either failed to take action or attempted to conceal information, would not be encompassed by protective order under discovery rule); Cipollone v. Liggett Group, Inc., 113 FRD. 86, 87 (D.N.J. 1986) (``Discovery may well reveal that a product is defective and its continued use dangerous to the consuming public. . . . It is inconceivable to this court that under such circumstances the public interest is not a vital factor to be considered in determining whether to further conceal that information and whether a court should be a party to that concealment.''); Toe v. Cooper Tire & Rubber Co. (Iowa District Court, Polk County, No. CL 106914) (Order on Defendant's Motion to Continue Protective Order, Jan. 18, 2012) (unsealing transcript where confidential documents related to tire defect were discussed). See also, Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., 291 FRD. 114 (S.D. W.Va. 2013) (good cause did not exist for issuance of protective order in environmental group's suit against company because there was no specific showing of identifiable harm company would suffer and case involved issues of importance to public health and safety); In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417 (9th Cir.), cert. denied, 132 S. Ct. 1867 (2011) (private interest in nondisclosure was not outweighed by public interests in protecting public safety). II. Recommended Best Practices Consistent with the foregoing legal and policy background, it is NHTSA's position that protective orders and settlement agreements should not be used to shield critical safety information from the Agency, either intentionally or unintentionally. This is not to say that parties should not enter into these agreements. To the contrary, these tools are often necessary to promote full and complete disclosure, to prevent abuses of the discovery process, and to protect legitimate privacy and proprietary interests. However, as explained above, they cannot be used to preclude disclosure of safety-related information from regulatory agencies and other government authorities. To do so is contrary to law and the underlying policies inherent in Rule 26 and state corollaries, and against sound public policy. NHTSA recommends that all parties include a provision in any protective order or settlement agreement that--despite whatever other restrictions on confidentiality are imposed, and whether entered into by consent or judicial fiat--specifically allows for disclosure of relevant motor vehicle safety information to NHTSA and other applicable authorities. Such a provision could be stated generically, providing that nothing in the order or agreement shall be construed to prohibit either party from disclosing information to a regulatory agency or governmental entity who has an interest in the subject matter of the underlying suit. For example, the provision could state that ``discovery material may only be disclosed to . . . governmental entities with an interest in the public safety hazards involving [description of product/vehicle].'' Or, it could specifically address NHTSA's interest, as contemplated by the recent NHTSA Consent Order requiring Chrysler to ``develop and implement a plan ensuring that, in safety-related litigation, FCA US uses its best efforts to include in any protective order, settlement agreement, or equivalent, a provision that explicitly allows FCA US to provide information and documents to NHTSA.'' See In re: FCA US LLC, AQ14-003, July 24, 2015 Consent Order, Attachment A, p. 27 at ] (B)(12), available at www.safercar.gov/rs/chrysler/pddfs/FCA_Consent_Order.pdf. Whatever the language, confidentiality agreements and protective orders should not be utilized to prevent the parties from producing information that implicates public safety to the very entity charged with ensuring and protecting that safety. Instead, such orders and agreements should clearly authorize and facilitate the disclosure of safety-related information to NHTSA. Such a provision is consistent with, and in some cases mandated by, federal and state statutory schemes and regulations and applicable case law, and is wholly in line with principles of sound public policy. Applicability/Legal Statement: This Enforcement Guidance Bulletin sets forth NHTSA's current interpretation and thinking on this topic and guiding principles and best practices to be utilized in the context of private litigation. This Bulletin is not a final agency action and is intended as guidance only. This Bulletin is not intended, nor can it be relied upon, to create any rights enforceable by any party against NHTSA, the Department of Transportation, or the United States. Moreover, these recommended practices to not establish any defense to any violations of the statutes and regulations that NHTSA administers. This Bulletin may be revised in writing without notice to reflect changes in NHTSA's evaluation and analysis, or to clarify and update text. Authority: 49 U.S.C. 30101, et seq.; delegations of authority at 49 CFR 1.95(a), 501.2(a)(1), 501.5. Issued: September 14, 2015. Timothy H. Goodman, Assistant Chief Counsel for Litigation and Enforcement. [FR Doc. 2015-23638 Filed 9-18-15; 8:45 am] BILLING CODE 4910-59-P
![57046 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices
Average time
Total annual Total annual
Item per response
responses burden hours
(hours)
FRA Form 30 ............................................................................................................................... 383 .25 95.75
FRA Form 31 ............................................................................................................................... 1 212 212
FRA Form 32 ............................................................................................................................... 1 24 24
FRA Form 33 ............................................................................................................................... 8 79 632
FRA Form 34 ............................................................................................................................... 2 897 1,794
FRA Form 35 ............................................................................................................................... 34 383 13,022
FRA Form 229 ............................................................................................................................. 18 .25 4.5
Additional Buy America Documentation ...................................................................................... 1 19,944.50 19,944.50
SF Form 270 ................................................................................................................................ 1 716 716
SF Form 424 ................................................................................................................................ 1.1 383 421.30
SF Form 424A ............................................................................................................................. 3 192 576
SF Form 424B ............................................................................................................................. .25 192 48
SF Form 424C ............................................................................................................................. 3 191 573
SF Form 424D ............................................................................................................................. .25 191 47.75
SF 425 ......................................................................................................................................... 1.5 897 1,345
SF Form LLL ................................................................................................................................ .17 383 65.11
* In minutes.
Total Estimated Annual Burden: constraints, safety-related information • Federal eRulemaking Portal: go to
39,521 hours. developed or discovered in private http://www.regulations.gov. Follow the
Pursuant to 44 U.S.C. 3507(a) and 5 litigation is an important resource for online instructions for submitting
CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA NHTSA. comments.
informs all interested parties that it may This proposed Enforcement Guidance • Mail: Docket Management Facility,
not conduct or sponsor, and a Bulletin sets forth NHTSA’s current M–30, U.S. Department of
respondent is not required to respond thinking on this topic, and guiding Transportation, West Building Ground
to, a collection of information unless it principles and best practices to be Floor, Rm. W12–140, 1200 New Jersey
displays a currently valid OMB control utilized in the context of private Avenue SE., Washington, DC 20590.
number. litigation. To the extent protective • Hand Delivery or Courier: U.S.
Authority: 44 U.S.C. 3501–3520. orders, settlement agreements, or other Department of Transportation, West
confidentiality provisions prohibit Building Ground Floor, Rm. W12–140,
Rebecca Pennington, 1200 New Jersey Avenue SE.,
information obtained in private
Chief Financial Officer. litigation from being transmitted to Washington, DC, 20590 between 9 a.m.
[FR Doc. 2015–23620 Filed 9–18–15; 8:45 am] NHTSA, such limitations are contrary to and 5 p.m. ET, Monday through Friday,
BILLING CODE 4910–06–P Rule 26 of the Federal Rules of Civil except Federal holidays.
Procedure, its state corollaries, and • Fax: (202) 493–2251.
sound principles of public policy. Regardless of how you submit your
DEPARTMENT OF TRANSPORTATION Although such restrictions are generally comments, you should mention the
prohibited by applicable rules and law, docket number of this document.
National Highway Traffic Safety You may call the Docket at 202–366–
Administration the Agency recommends that litigants
include a specific provision in any 9324.
[Docket No. NHTSA–2015–0095; Notice 1] protective order or settlement agreement Note that all comments received will
that provides for disclosure of relevant be posted without change to http://
Request for Public Comments on motor vehicle safety information to www.regulations.gov, including any
NHTSA Enforcement Guidance Bulletin NHTSA, regardless of any other personal information provided.
2015–01: Recommended Best restrictions on the disclosure or FOR FURTHER INFORMATION CONTACT: Kara
Practices for Protective Orders and dissemination of such information. Fischer, Office of the Chief Counsel,
Settlement Agreements in Civil NCC–111, National Highway Traffic
This notice solicits comments from
Litigation Safety Administration, 1200 New Jersey
the public, from counsel, and from other
AGENCY: National Highway Traffic interested parties concerning this Avenue SE., Washington, DC 20590
Safety Administration (NHTSA), proposed enforcement guidance, and (telephone: 202–366–8726).
Department of Transportation. best practices to be followed by litigants SUPPLEMENTARY INFORMATION: In this
ACTION: Request for public comments. in private litigation regarding protective notice, NHTSA has begun assembling
orders and settlement agreements that for guidance and informative purposes
SUMMARY: NHTSA’s ability to identify contain confidentiality provisions an Enforcement Guidance Bulletin
and define safety-related motor vehicle limiting disclosure of safety-related which sets forth guiding principles and
defects relies in large part on information. best practices for private litigants
manufacturers’ self-reporting. However, utilizing protective orders and
although federal regulations may require DATES: All comments should be settlement agreements with
rmajette on DSK7SPTVN1PROD with NOTICES
them to report certain information to submitted early enough to ensure that confidentiality provisions. NHTSA is
NHTSA, manufacturers do not always Docket Management receives them not not establishing a binding set of rules on
do so, or do not do so in a timely later than October 19, 2015. best practices, or even suggesting that a
manner. Additionally, the information a ADDRESSES: You may submit comments single set of best practices would apply
manufacturer is required to report varies to the docket number identified in the in all situations. The Agency fully
greatly depending on the product and heading of this document by any of the realizes that best practices may vary
company size and purpose. Given these following methods: widely depending on circumstance, and
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![Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices 57047
private litigants remain free to choose Given these constraints, safety-related during discovery.’’ Phillips v. Gen.
the practices that best fit their needs in information developed or discovered in Motors Corp., 307 F.3d 1206, 1210 (9th
pursuing litigation. private litigation is an important Cir. 2002). Where there is a presumptive
However, since NHTSA recognizes resource for NHTSA. Yet confidentiality right of public access under the federal
the public interest in this topic, we restrictions imposed as part of a rules, courts have discretion upon a
solicit public comment before issuing a protective order or settlement agreement showing of ‘‘good cause’’ to restrict
final ‘‘Enforcement Guidance Bulletin’’ in private litigation—whether court- access to documents or information ‘‘to
document. Commenters who sanctioned or privately negotiated— protect a party or person from
recommend specific best practices often prevent parties from providing annoyance, embarrassment, oppression,
should be careful to address the information about potentially dangerous or undue burden or expense.’’ Fed. R.
practical impact that those practices products to the Agency. As many Civ. P. 26(c)(1). As the Seventh Circuit
may have on individuals and entities of scholarly articles have noted, as has has stated, Rule 26(c)’s good cause
differing size, and the relative costs and history has borne out, such restrictions requirement means that, ‘‘[a]s a general
benefits of implementing various have kept critical safety information out proposition, pretrial discovery must
practices. After receiving comments, we of the hands of both regulators and the take place in the public unless
will issue a subsequent notice public. As a matter of law and sound compelling reasons exist for denying the
delineating a final Enforcement public policy, NHTSA cannot public access to the proceedings.’’ Am.
Guidance Bulletin for informative countenance this situation. Telephone and Telegraph Co. v. Grady,
purposes. We will also post the There is no doubt that confidentiality 594 F.2d 594, 596 (7th Cir. 1978); see
Enforcement Guidance Bulletin on the provisions, protective orders, and the also, Public Citizen v. Liggett Group,
Agency’s Web site for easy reference. sealing of cases are appropriate Inc., 858 F.2d 775, 790 (1st Cir. 1988).
In light of the foregoing, NHTSA litigation tools in some circumstances. Trial courts enjoy broad discretion in
proposes the following Enforcement In most instances, however, the interests determining when to issue a protective
Guidance for private litigants pertaining of public health and safety trump any order and the degree and scope of
to the use of confidentiality provisions confidentiality interests. In matters that protection required. Seattle Times Co. v.
in protective orders and settlement concern the safety of the American Rhinehart, 467 U.S. 20, 36 (1984).
agreements: driving public and pedestrians, it is General allegations of harm,
important that entities and individuals unsubstantiated by specific examples or
The National Highway Traffic Safety
are not prevented from providing articulated reasoning, however, are
Administration (‘‘NHTSA’’ or ‘‘the
relevant information to the very Agency insufficient to warrant such an order.
Agency’’) is tasked with, among other
tasked with ensuring that safety. Beckman Indus., Inc. v. Int’l Ins. Co.,
things, setting Federal Motor Vehicle To the extent protective orders, 966 F.2d 470, 476 (9th Cir. 1992);
Safety Standards (‘‘FMVSS’’), settlement agreements, or other Cipollone v. Liggett Group, Inc., 785
identifying and ensuring the remedy of confidentiality provisions prohibit F.2d 1108, 1121 (3d Cir. 1986). Rather,
safety-related defects, and monitoring vehicle safety-related information from the burden is on the party seeking
and enforcing compliance with these being transmitted to NHTSA, such protection from disclosure to ‘‘allege
standards to safeguard the well-being of limitations are contrary to established specific prejudice or harm’’ that will
the American public. The only way the principles of public policy and law, result if the protective order is not
Agency can fully achieve these including Rule 26 of the Federal Rules granted. In re Roman Catholic
objectives is if it has the necessary of Civil Procedure and its state Archbishop of Portland in Oregon, 661
information within its grasp, including corollaries which require a showing of F.3d 417, 424 (9th Cir. 2011), cert.
information discovered or identified in good cause to impose confidentiality. denied, 132 S. Ct. 1867 (2012); In re
private litigation. The recent General Motors ignition Terra Intern., Inc., 134 F.3d 302 (5th Cir.
NHTSA’s ability to identify and switch and Takata airbag recalls are but 1998) (good cause requirement
define safety-related motor vehicle two examples of how vital early contemplates a particular and specific
defects relies in large part on timely and identification of motor vehicle risks or demonstration of fact as distinguished
accurate reporting by manufacturers, defects is for the safety and welfare of from conclusory statements);
suppliers, and various parties the American public. Glenmeade Trust Co. v. Thompson, 56
throughout the industry, whether by To further this important public F.3d 476 (3d Cir. 1995) (generalized
statutory or regulatory requirement or policy, the Agency encourages and allegations of injury insufficient to
pursuant to compulsory process. recommends that parties include a satisfy the good cause requirement for
Although federal law may require provision in any protective order or issuance of protective order); Iowa Beef
industry participants to report certain settlement agreement that—despite Processors, Inc. v. Bagley, 601 F.2d 949,
information to NHTSA, they do not whatever other restrictions on 954 n. 5 (8th Cir. 1979) (party seeking
always do so, or do not do so in a timely confidentiality are imposed— protective order bears burden of making
manner. Additionally, the type of specifically allows for disclosure of ‘‘good cause’’ showing that the
information an industry participant is relevant motor vehicle safety information being sought falls within
required to report varies greatly information to NHTSA and other scope of Rule 26(c) and that moving
depending on the product and company applicable government authorities. party will be harmed by its disclosure).
size and purpose. While certain entities Even if a court concludes that such
are required to report both deaths and I. Legal and Policy Background harm will result from disclosure, it still
injuries resulting from the use of their ‘‘Once a matter is brought before a must proceed to balance ‘‘the public and
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products, others only must report court for resolution, it is no longer private interests to decide whether a
deaths. In those cases, in the absence of solely the parties’ case, but also the protective order is necessary.’’ Phillips,
a fatal incident a potentially defective public’s case.’’ Brown v. Advantage 307 F.3d at 1211. See Shingara v. Skiles,
product may not come across NHTSA’s Eng’g, Inc., 960 F.2d 1013, 1016 (11th 420 F.3d 301, 308 (3d Cir. 2005) (‘‘[A]
radar until dozens, if not hundreds, of Cir. 1992). As a general rule, the public court always must consider the public
people have sustained serious injury— is permitted ‘‘access to litigation interest when deciding whether to
if it ever reaches NHTSA at all. documents and information produced impose a protective order.’’); Glenmede
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![57048 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices
Trust Co. v. Thompson, 56 F.3d 476, A number of states have enacted consistent with privacy interests.’’ Idaho
483 (3d Cir. 1995) (‘‘[T]he analysis [of ‘‘Sunshine in Litigation’’ acts, which R. Admin. 32(f). See also Mich. Ct. R.
good cause] should always reflect a thrust the interests of public health and 8.119(F) (records may be sealed upon
balancing of private versus public safety into the forefront by preventing showing of good cause and that no less
interests.’’). In doing so, courts consider parties from concealing safety hazards restrictive means are available to protect
a number of factors, including: through settlement agreements or the interest asserted); D.S.C. LCivR 5.03
(1) Whether disclosure will violate any protective orders. Some, such as (party must state why sealing is
privacy interests; (2) whether the information Florida, broadly forbid courts from necessary and explain why less
is being sought for a legitimate purpose or for entering protective orders that may have restrictive alternatives will not afford
an improper purpose; (3) whether disclosure the ‘‘purpose or effect of concealing a adequate protection). Indiana’s
of the information will cause a party public hazard or any information legislature went a step further, requiring
embarrassment; (4) whether confidentiality is concerning a public hazard’’ or that an affirmative showing that a public
being sought over information important to ‘‘may be useful to members of the public interest will be protected by sealing a
public health and safety; (5) whether the in protecting themselves from injury.’’ record, and mandating that records shall
sharing of information among litigants will Fla. Stat. Ann. § 69.081 (West 2015). be unsealed as soon as possible after the
promote fairness and efficiency; (6) whether Others, such as Texas, establish a reason for sealing them no longer exists.
a party benefitting from the order of
presumption that court records— Ind. Code § 5–14–3–5.5 (2011). See also,
confidentiality is a public entity or official;
and (7) whether the case involves issues
including all documents filed with the Richard Rosen, Settlement Agreements
important to the public. court, unfiled settlement agreements, in Com. Disputes, n. 103 § 10.04 (2015)
and unfiled discovery documents (citing to statutory provisions in
Glenmede Trust Co., 56 F.3d at 483. See ‘‘concerning matters that have a California, Colorado, Michigan,
also In re Roman Catholic Archbishop probable adverse effect upon the general Montana, New Hampshire, New York,
of Portland in Oregon, 661 F.3d at 424. public health or safety’’—are open to the Ohio, Oregon, South Carolina, and
The public’s interest in access to court general public; records may be sealed Utah). Although the specifics of each
records is strongest when the records only upon a showing that there is a provision vary, all are consistent with
specific, serious, and substantial interest the notion that the safety of public
concern public health or safety. See,
in nondisclosure which clearly should be given considerable weight in
e.g., Brown & Williamson Tobacco Corp.
outweighs the presumption of public determining whether to restrict access to
v. F.T.C, 710 F.2d 1165, 1180–81 (6th
access and any probable effect on public information.
Cir. 1983) (vacating district court’s Basic contract principles also dictate
health or safety. Tex. R. Civ. P. 76a.
sealing of court records involving the A federal corollary introduced on May that the public health and safety
content of tar and nicotine in cigarettes 14, 2015, currently pending before the concern should be of paramount
and emphasizing that the public had House of Representatives, H.R. 2336 significance in drafting and approving
particularly strong interest in the court (114th Congress, 2015–2017), would protective orders and settlement
records at issue because the ‘‘litigation create a presumption against protective agreements. While parties are generally
potentially involves the health of orders and the sealing of settlements free to contract as they see fit, ‘‘courts
citizens who have an interest in and cases ‘‘in which the pleadings state will not hesitate to declare void as
knowing the accurate ‘tar’ and nicotine facts that are relevant to the protection against public policy contractual
content of the various brands of of public health or safety.’’ The provisions which clearly tend to the
cigarettes on the market’’); see also presumption would control unless a injury of the public in some way.’’ 17A
United States v. General Motors, 99 party asks a judge to find that a specific C.J.S. Contracts § 281 (2015) (internal
FRD. 610, 612 (D.D.C. 1983) (the and substantial interest in maintaining citations omitted); see Thomas James
‘‘greater the public’s interest in the case secrecy outweighs the public health and Associates, Inc. v. Jameson, 102 F.3d 60,
the less acceptable are restraints on the safety interest and that the order is no 66 (2d Cir. 1996) (‘‘[C]ourts must not be
public’s access to the proceedings’’); In broader than necessary to protect the timid in voiding agreements which tend
re Air Crash at Lexington, Ky., August privacy interest asserted. Id. It would to injure the public good or contravene
27, 2006, No. 5:06–CV–316–KSF, 2009 also prohibit a court from approving or some established interest of society.’’)
WL 16836289, at *8 (E.D. Ky. June 16, enforcing a provision that restricts a (internal quotations and citations
2009) (noting the ‘‘public has an interest party from disclosing public health or omitted); see also Vasquez v. Glassboro
in ascertaining what evidence and safety information to any federal or state Service Ass’n, Inc., 83 N.J. 86, 415 A.2d
records the . . . Court [has] relied upon agency with authority to enforce laws 1156 (1980) (citing text for general
in reaching [its] decisions,’’ and that regulating an activity related to such proposition that courts have broad
‘‘the public interest in a plane crash that information. Id. power to declare agreements violative of
resulted in the deaths of forty-nine Several states have taken a broader public policy).
people is quite strong, as is the public approach, enacting statutes and court ‘‘While the term ‘public policy’ lacks
interest in air safety’’). In balancing the rules to address the question of whether precise definition, . . . it may be stated
privacy interests of the party seeking or not courts should enforce generally as a legal principle which
protection, a court ‘‘must consider the confidentiality agreements, regardless of holds that no one may lawfully do that
need for public dissemination, in order the subject matter. The common theme which has a tendency to injure the
to alert other consumers to potential of these statutes is a balancing of public welfare. . . .’’ O’Hara v. Ahlgren,
dangers posed by the product.’’ Koval v. interests. For example, drawing upon Blumenfeld and Kempster, 537 NE.2d
Gen. Motors Corp., 62 Ohio Misc. 2d federal precedent requiring 730 (Ill. 1989). ‘‘An agreement is against
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694, 699, 610 NE.2d 1199, 1202 (Com. consideration of the public interest at public policy if it is injurious to the
Pl. 1990) (citing Hendricks v. Jeep Corp. stake, Idaho Court Administrative Rule interests of the public, contravenes
(D. Mont. June 3, 1986), case No. CV– 32 directs courts considering shielding some established interest of society,
82–092–M–PGH (unreported) and requests to first determine whether the violates some public statute, is against
United States v. Hooker Chemicals & interest in privacy or public disclosure good morals, tends to interfere with the
Plastics Corp., 90 FRD. 421 (W.D.N.Y. predominates and to ‘‘fashion the least public welfare or safety, or is at war
1981)). restrictive exception from disclosure with the interests of society or is in
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![Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices 57049
conflict with the morals of the time.’’ further conceal that information and hazards involving [description of
E & B Mktg. Enterprises, Inc. v. Ryan, whether a court should be a party to that product/vehicle].’’ Or, it could
568 NE.2d 339, 209 Ill. App. 3d 626 (1st concealment.’’); Toe v. Cooper Tire & specifically address NHTSA’s interest,
Dist. 1991). See also Johnson v. Peterbilt Rubber Co. (Iowa District Court, Polk as contemplated by the recent NHTSA
of Fargo, Inc., 438 NW.2d 162 (N.D. County, No. CL 106914) (Order on Consent Order requiring Chrysler to
1989) (‘‘Public policy, with respect to Defendant’s Motion to Continue ‘‘develop and implement a plan
contract provisions, is a principle of law Protective Order, Jan. 18, 2012) ensuring that, in safety-related
whereby a contract provision will not be (unsealing transcript where confidential litigation, FCA US uses its best efforts
enforced if it has a tendency to be documents related to tire defect were to include in any protective order,
injurious to the public or against the discussed). See also, Ohio Valley Envtl.
settlement agreement, or equivalent, a
public good.’’). An agreement is Coal. v. Elk Run Coal Co., Inc., 291 FRD.
provision that explicitly allows FCA US
unenforceable if the interest in its 114 (S.D. W.Va. 2013) (good cause did
enforcement is outweighed by the not exist for issuance of protective order to provide information and documents
public policy harmed by enforcement of in environmental group’s suit against to NHTSA.’’ See In re: FCA US LLC,
the agreement. 17A C.J.S. Contracts company because there was no specific AQ14–003, July 24, 2015 Consent Order,
§ 281 (citation omitted). showing of identifiable harm company Attachment A, p. 27 at ¶ (B)(12),
In fact, the Florida Sunshine in would suffer and case involved issues of available at www.safercar.gov/rs/
Litigation Act specifically codifies this importance to public health and safety); chrysler/pddfs/FCA_Consent_Order.pdf.
concept: ‘‘Any portion of an agreement In re Roman Catholic Archbishop of Whatever the language,
or contract which has the purpose or Portland in Oregon, 661 F.3d 417 (9th confidentiality agreements and
effect of concealing a public hazard, any Cir.), cert. denied, 132 S. Ct. 1867 (2011) protective orders should not be utilized
information concerning a public hazard, (private interest in nondisclosure was to prevent the parties from producing
or any information which may be useful not outweighed by public interests in information that implicates public
to members of the public in protecting protecting public safety). safety to the very entity charged with
themselves from injury which may
II. Recommended Best Practices ensuring and protecting that safety.
result from the public hazard, is void,
contrary to public policy, and may not Consistent with the foregoing legal Instead, such orders and agreements
be enforced.’’ Fla. Stat. Ann. § 69.081(4). and policy background, it is NHTSA’s should clearly authorize and facilitate
See also Ark. Code Ann. § 16–55–122 position that protective orders and the disclosure of safety-related
(2011) (rendering void any settlement settlement agreements should not be information to NHTSA. Such a
provision purporting to restrict used to shield critical safety information provision is consistent with, and in
disclosure of an environmental hazard). from the Agency, either intentionally or some cases mandated by, federal and
Although the Florida provision broadly unintentionally. This is not to say that state statutory schemes and regulations
addresses any contract, this notion is parties should not enter into these and applicable case law, and is wholly
particularly applicable in the context of agreements. To the contrary, these tools in line with principles of sound public
protective orders or settlement are often necessary to promote full and policy.
agreement terms that prevent litigants complete disclosure, to prevent abuses
Applicability/Legal Statement: This
from disclosing information to NHTSA. of the discovery process, and to protect
Enforcement Guidance Bulletin sets
The good cause requirements found in legitimate privacy and proprietary
interests. However, as explained above, forth NHTSA’s current interpretation
Rule 26 and related state provisions,
and the doctrines underlying NHTSA’s they cannot be used to preclude and thinking on this topic and guiding
own regulations all advance the disclosure of safety-related information principles and best practices to be
unassailable public policy of from regulatory agencies and other utilized in the context of private
maintaining and preserving the health government authorities. To do so is litigation. This Bulletin is not a final
and welfare of the public. This strong contrary to law and the underlying agency action and is intended as
policy has been realized and enforced policies inherent in Rule 26 and state guidance only. This Bulletin is not
by the refusal of many courts and corollaries, and against sound public intended, nor can it be relied upon, to
litigants to engage in protective orders policy. create any rights enforceable by any
or settlement agreements that keep NHTSA recommends that all parties party against NHTSA, the Department of
regulators and the public in the dark include a provision in any protective Transportation, or the United States.
about potential safety hazards. See order or settlement agreement that— Moreover, these recommended practices
Culinary Foods, Inc. v. Raychem Corp., despite whatever other restrictions on to not establish any defense to any
151 FRD. 297 (N.D. Ill.), clarified 153 confidentiality are imposed, and violations of the statutes and regulations
FRD. 614 (1993) (any information as to whether entered into by consent or that NHTSA administers. This Bulletin
whether products liability defendant’s judicial fiat—specifically allows for may be revised in writing without
products were dangerous, and whether disclosure of relevant motor vehicle notice to reflect changes in NHTSA’s
defendant knew of dangers and either safety information to NHTSA and other
evaluation and analysis, or to clarify
failed to take action or attempted to applicable authorities. Such a provision
and update text.
conceal information, would not be could be stated generically, providing
encompassed by protective order under that nothing in the order or agreement Authority: 49 U.S.C. 30101, et seq.;
discovery rule); Cipollone v. Liggett shall be construed to prohibit either delegations of authority at 49 CFR 1.95(a),
Group, Inc., 113 FRD. 86, 87 (D.N.J. party from disclosing information to a 501.2(a)(1), 501.5.
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1986) (‘‘Discovery may well reveal that regulatory agency or governmental Issued: September 14, 2015.
a product is defective and its continued entity who has an interest in the subject Timothy H. Goodman,
use dangerous to the consuming public. matter of the underlying suit. For
example, the provision could state that Assistant Chief Counsel for Litigation and
. . . It is inconceivable to this court that
Enforcement.
under such circumstances the public ‘‘discovery material may only be
[FR Doc. 2015–23638 Filed 9–18–15; 8:45 am]
interest is not a vital factor to be disclosed to . . . governmental entities
considered in determining whether to with an interest in the public safety BILLING CODE 4910–59–P
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Document Created: 2015-12-15 09:38:20
Document Modified: 2015-12-15 09:38:20
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Request for public comments. | |
| Dates | All comments should be submitted early enough to ensure that Docket Management receives them not later than October 19, 2015. | |
| Contact | Kara Fischer, Office of the Chief Counsel, NCC-111, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-366-8726). | |
| FR Citation | 80 FR 57046 |
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