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From Products Liability Law Daily, September 21, 2015

NHTSA seeks comments on disclosure of safety-related information discovered in private litigation

By John Dumoulin

The National Highway Traffic Safety Administration (NHTSA) is requesting comments on a proposed enforcement guidance bulletin entitled “Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation.” This guidance concerns safety-related information developed or discovered in private litigation in which litigants utilize protective orders and settlement agreements with confidentiality provisions. NHTSA 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. NHTSA is soliciting comments from the public, counsel, and other interested parties concerning this proposed enforcement guidance, as well as 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. Comments must be received by October 19, 2015 (NHTSA Notice, 80 FR 57046, September 21, 2015).

Background. NHTSA largely relies on timely and accurate reporting by manufacturers, suppliers, and various parties throughout the industry to identify and define safety-related motor vehicle defects. 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. 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. In most instances, according to NHTSA, the interests of public health and safety trump any confidentiality interests. NHTSA said that, 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.

Proposed enforcement guidance bulletin. NHTSA is issuing for guidance and informative purposes a proposed enforcement guidance bulletin that 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 since it realizes that they may vary widely depending on circumstance, and private litigants remain free to choose the practices that best fit their needs in pursuing litigation. NHTSA said that after receiving comments, it will issue a subsequent notice delineating a final enforcement guidance bulletin for informative purposes and will post the enforcement guidance bulletin on its web site for easy reference.

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