Chicago-Kent Law Review
The debate over discovery confidentiality has raged for over twenty years, since before the Supreme Court's decision in Seattle Times Co. v. Rhinehart, and it shows no sign of fading. If anything, issues of litigation confidentiality appear to have gained increased attention in recent years. The United States District Court for the District of South Carolina attracted nationwide attention in 2002 when it adopted a local rule severely restricting secret settlements and addressing other aspects of court-ordered confidentiality. In 2004 the Federal Judicial Center completed an empirical study of sealed settlements. It seems that each month of 2005 brought new attention to this set of issues. In January, the Civil Procedure Section of the Association of American Law Schools presented a program on "Secrecy in Litigation." In February, the federal judges for the District of New Jersey adopted a local rule imposing restrictions on discovery protective orders as well as sealed settlements. In March, the Supreme Court decided Ballard v. Commissioner of Internal Revenue, involving the secrecy of Tax Court trial judge findings. And in April, The Sedona Conference Working Group on Protective Orders, Confidentiality and Public Access published a draft set of guidelines ("Sedona Guidelines") on protective orders and litigation confidentiality. When parties present a court with a stipulated protective order, it is easy to understand why many judges would be quick to sign it. Such a protective order addressing discovery confidentiality lubricates the wheels of discovery. With a protective order in place, a responding party is more willing to turn over information rather than asserting and litigating every plausible relevance objection and privilege objection. After all, neither party objects to the order. On the other hand, litigation is a public process. Court-ordered confidentiality may prevent the public from gaining access to information that bears on public health and safety. Confidentiality may also decrease the efficiency of litigation by obstructing information-sharing among lawyers. Finally, there is a nagging sense that the imprimatur of the court ought not to be given without at least some showing of good cause. This Article offers support for the argument that protective orders for discovery confidentiality should be granted upon a relatively light showing of good cause. The Article proceeds in two parts. Part I offers reasons why, in the vast majority of cases, courts should readily grant motions for protective orders with respect to discovery confidentiality as long as the movant can articulate some legitimate need for the information to be kept confidential. Looking at modem United States discovery from a comparative and historical perspective, broad and powerful party-controlled discovery can only be justified as a means of finding information for the resolution of the dispute, not as a public information tool. Part II explains why some showing of good cause nonetheless should be required, even if the parties themselves agree to the confidentiality protections.
Howard M. Erichson,
Court-Ordered Confidentiality in Discovery Symposium: Secrecy in Litigation: I: Article, 81 Chi.-Kent L. Rev. 357
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/371