S T A T E O F N E W Y O R K
________________________________________________________________________
5632
2019-2020 Regular Sessions
I N A S S E M B L Y
February 14, 2019
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Introduced by M. of A. WEINSTEIN, SIMOTAS, DINOWITZ, GLICK, NOLAN,
CAHILL, TAYLOR -- Multi-Sponsored by -- M. of A. BARRON, CYMBROWITZ,
D'URSO, ENGLEBRIGHT, GALEF, GOTTFRIED, JAFFEE, LUPARDO, MAGNARELLI,
NIOU, SIMON -- read once and referred to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to enact-
ing the "sunshine in litigation act" regarding protective orders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (a) of section 3103 of the civil practice law
and rules, as amended by chapter 205 of the laws of 2013, is amended to
read as follows:
(a) Prevention of abuse. [The] SUBJECT TO THE PROVISIONS OF SECTION
THIRTY-ONE HUNDRED FORTY-THREE OF THIS CHAPTER, THE court may at any
time on its own initiative, or on motion of any party or of any person
from whom or about whom discovery is sought, make a protective order
denying, limiting, conditioning or regulating the use of any disclosure
device. Such order shall be designed to prevent unreasonable annoyance,
expense, embarrassment, disadvantage, or other prejudice to any person
or the courts.
§ 2. The civil practice law and rules is amended by adding a new arti-
cle 31-A to read as follows:
ARTICLE 31-A
SUNSHINE IN LITIGATION ACT
SECTION 3141. SHORT TITLE.
3142. DEFINITIONS.
3143. SUNSHINE IN LITIGATION; CONCEALMENT OF PUBLIC HAZARDS
PROHIBITED.
§ 3141. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "SUNSHINE IN LITIGATION ACT".
§ 3142. DEFINITIONS. WHEN USED IN THIS ARTICLE, UNLESS OTHERWISE SO
STATED, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00877-01-9
A. 5632 2
(A) GOVERNMENTAL ENTITY. "GOVERNMENTAL ENTITY" SHALL MEAN THE STATE
AND ANY COUNTY, CITY, TOWN, VILLAGE OR ANY OTHER POLITICAL SUBDIVISION
OF THE STATE, AND EVERY DEPARTMENT, BOARD, BUREAU, AGENCY, PUBLIC
AUTHORITY OR OTHER GOVERNMENTAL INSTRUMENTALITY OF THE STATE OR A POLI-
TICAL SUBDIVISION OF THE STATE.
(B) PUBLIC HAZARD. "PUBLIC HAZARD" SHALL MEAN ANY CONDITION OF ANY
DEVICE, INSTRUMENT, PERSON, PROCEDURE, PRODUCT OR PROPERTY THAT HAS
CAUSED INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR WHICH, UNLESS
ALTERED, REMOVED, REASSEMBLED OR CHANGED IN SOME MANNER, CREATES A RISK
OF INJURY TO PERSON OR PROPERTY IN THE FUTURE.
(C) TRADE SECRET. "TRADE SECRET" SHALL MEAN INFORMATION, TECHNICAL OR
NON-TECHNICAL, INCLUDING, BUT NOT LIMITED TO, A FORMULA, PATTERN, COMPI-
LATION, PROGRAM, DEVICE, METHOD, TECHNIQUE OR PROCESS THAT:
1. DERIVES INDEPENDENT ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM NOT
BEING GENERALLY KNOWN TO, AND NOT BEING READILY ASCERTAINABLE BY PROPER
MEANS, BY OTHER PERSONS WHO CAN OBTAIN ECONOMIC VALUE FROM ITS DISCLO-
SURE OR USE; AND
2. IS THE SUBJECT OF EFFORTS THAT ARE REASONABLE UNDER THE CIRCUM-
STANCES TO MAINTAIN ITS SECRECY.
§ 3143. SUNSHINE IN LITIGATION; CONCEALMENT OF PUBLIC HAZARDS PROHIB-
ITED. (A) EXCEPT IN STRICT COMPLIANCE WITH THE PROVISIONS OF THIS
SECTION, NO COURT SHALL ENTER, ORDER OR RENDER A JUDGMENT IN ANY ACTION
OR PROCEEDING BROUGHT IN THIS STATE WHICH HAS THE PURPOSE OR EFFECT OF
CONCEALING A PUBLIC HAZARD OR CONCEALING ANY PERTINENT INFORMATION THAT
WOULD IDENTIFY A PUBLIC HAZARD, NOR SHALL THE COURT ENTER AN ORDER OR
RENDER A JUDGMENT WHICH HAS THE PURPOSE OR EFFECT OF CONCEALING ANY
INFORMATION THAT MAY BE USEFUL TO MEMBERS OF THE PUBLIC IN PROTECTING
THEIR PERSON OR PROPERTY FROM DAMAGE OR INJURY THAT MAY RESULT FROM
CONTACT WITH A PUBLIC HAZARD.
(B) TRADE SECRETS WHICH ARE NOT DIRECTLY RELATED TO PUBLIC HAZARDS
SHALL BE PROTECTED AND NOT ORDERED TO BE RELEASED. IN ADDITION, THE
PROVISIONS OF THIS SECTION SHALL NOT APPLY TO OTHER INFORMATION THAT IS
CONFIDENTIAL BECAUSE IT IS PRIVILEGED UNDER ANY PROVISION OF STATE OR
FEDERAL LAW.
(C) ANY PROVISION OF ANY AGREEMENT OR CONTRACT ENTERED INTO WITHIN
THIS STATE OR PERTAINING TO PERSONS OR PROPERTY WITHIN THIS STATE, WHICH
HAS THE PURPOSE OR EFFECT OF CONCEALING A PUBLIC HAZARD OR CONCEALING
ANY INFORMATION THAT WOULD IDENTIFY A PUBLIC HAZARD, WHICH INFORMATION
MAY BE USEFUL TO MEMBERS OF THE PUBLIC IN PROTECTING THEIR PERSON OR
PROPERTY FROM DAMAGE OR INJURY RESULTING FROM CONTACT WITH A PUBLIC
HAZARD, IS HEREBY DECLARED TO BE VOID AND CONTRARY TO PUBLIC POLICY, AND
SHALL NOT BE ENFORCED BY THE COURTS OF THIS STATE, OR OTHERWISE.
(D) ANY SUBSTANTIALLY AFFECTED PERSON OR REPRESENTATIVE OF THE ESTATE
OF SUCH PERSON, INCLUDING BUT NOT LIMITED TO A REPRESENTATIVE OF THE
NEWS MEDIA, SHALL BE DEEMED TO HAVE STANDING TO BRING AN ACTION OR
PROCEEDING IN A COURT OF COMPETENT JURISDICTION TO CONTEST AN ORDER,
JUDGMENT, AGREEMENT OR CONTRACT ON THE GROUNDS THAT IT VIOLATES THE
PROVISIONS OF THIS SECTION REQUIRING DISCLOSURE OF THE EXISTENCE OF A
PUBLIC HAZARD. SUCH PERSON MAY CONTEST SUCH AN ORDER, JUDGMENT, AGREE-
MENT OR CONTRACT BY MOTION BROUGHT BEFORE THE COURT THAT ENTERED THE
ORDER OR JUDGMENT.
(E) UPON MOTION AND GOOD CAUSE SHOWN BY A PARTY ATTEMPTING TO PREVENT
RELEASE OF INFORMATION OR MATERIALS ALLEGEDLY CONCEALING THE EXISTENCE
OF A PUBLIC HAZARD, INCLUDING BUT NOT LIMITED TO DISPUTES WHEREIN SUCH
INFORMATION IS ALLEGED TO BE A TRADE SECRET PROTECTED BY LAW, THE COURT
SHALL EXAMINE THE DISPUTED INFORMATION OR MATERIALS IN CAMERA. IF THE
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COURT DETERMINES THAT THE INFORMATION OR MATERIALS OR PORTIONS THEREOF
CONSIST OF INFORMATION CONCERNING A PUBLIC HAZARD OR INFORMATION THAT
MAY BE USEFUL TO MEMBERS OF THE PUBLIC IN PROTECTING THEMSELVES FROM
INJURY TO PERSON OR PROPERTY THAT MAY RESULT FROM CONTACT WITH SUCH A
PUBLIC HAZARD, THE COURT SHALL ORDER RELEASE OF THE INFORMATION OR MATE-
RIALS. IF SUCH RELEASE IS ORDERED, THE COURT SHALL ALLOW RELEASE OF ONLY
THAT PORTION OF THE INFORMATION OR MATERIALS NECESSARY OR USEFUL TO THE
PUBLIC IN IDENTIFYING THE PUBLIC HAZARD, AND IN PROTECTING THEIR PERSON
OR PROPERTY FROM DAMAGE OR INJURY THAT MAY RESULT FROM CONTACT WITH THE
PUBLIC HAZARD.
(F) ANY PROVISION OF ANY AGREEMENT OR CONTRACT ENTERED INTO WITHIN
THIS STATE, OR PERTAINING TO PERSONS OR PROPERTY WITHIN THIS STATE, THAT
HAS THE PURPOSE OR EFFECT OF CONCEALING INFORMATION RELATING TO THE
SETTLEMENT OR RESOLUTION OF ANY CLAIM OR ACTION AGAINST ANY GOVERNMENTAL
ENTITY AND THAT MAY BE USEFUL TO MEMBERS OF THE PUBLIC IN PROTECTING
THEIR PERSON OR PROPERTY FROM DAMAGE OR INJURY THAT MAY RESULT FROM
CONTACT WITH A PUBLIC HAZARD IS HEREBY DECLARED TO BE VOID AND CONTRARY
TO PUBLIC POLICY, AND SHALL NOT BE ENFORCED BY THE COURTS OF THIS STATE,
OR OTHERWISE. ANY DOCUMENT, RECORD, CONTRACT OR AGREEMENT RELATING TO
ANY SETTLEMENT, AS SET FORTH IN THIS SUBDIVISION, SHALL BE DEEMED A
PUBLIC RECORD SUBJECT TO DISCLOSURE PURSUANT TO ARTICLE SIX OF THE
PUBLIC OFFICERS LAW. THE FAILURE OR REFUSAL OF ANY PARTY TO AN ACTION OR
PROCEEDING, OR OTHER PERSON IN CUSTODY OF SUCH A RECORD, TO DISCLOSE AND
PROVIDE ANY DOCUMENT, RECORD, CONTRACT OR AGREEMENT AS SET FORTH IN THIS
SUBDIVISION SHALL BE SUBJECT TO THE SANCTIONS AS SET FORTH IN ARTICLE
SIX OF THE PUBLIC OFFICERS LAW, PURSUANT TO THE APPLICABLE LAW OR RULE.
§ 3. This act shall take effect on the thirtieth day after it shall
have become a law.