Mont. Bill Would Undermine Judges’ Authority in Issuing Protective Orders

January 23, 2003

A Montana House bill that would restrain judges from issuing protective orders on private information evokes privacy concerns, compromises parties’ abilities to reach freely negotiated settlements, and increases the burden on taxpayers and litigants.

“Discovery materials frequently contain sensitive private information, such as medical or financial records,” said Donald S. Cleasby, assistant vice president and assistant general counsel for the National Association of Independent Insurers (NAII). “H.B. 327 assumes that judges have no expertise or common sense in issuing protective orders to those cases that truly deserve protection. By restraining judges’ discretion to keep secret what they view as non-vital privately disclosed information, this bill undermines decades of accepted judicial practice and privacy law.”

Most protective orders arise from negotiated agreements by opposing parties and approved by judges exercising sound discretion, Cleasby said. By limiting this ability, H.B. 327 will deter pre-trial settlements, which will ultimately result in more lawsuits and protracted litigation.

“Protective orders reduce or eliminate costly discovery disputes, expedite the individual case and frequently promote settlement prior to trial, easing the burden on the civil judicial system,” Cleasby said. “Litigants and taxpayers will pay the price in greater court costs and expenses of administering and adjudicating more lengthy and extended civil suits if pre-trial settlements are discouraged.”

NAII will present testimony opposing H.B. 327 at a hearing Jan. 24, before the House Judiciary Committee.

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