Assault on protective orders.

• Author: Linder, Rex K.
• Position: President's Page

Assault on Protective Orders

THE continued viability of protective orders and confidentiality agreements is in jeopardy. There has been an increasing attack from some politicians, the media and members of the plaintiffs' bar against these long-established tools to protect outside disclosure of sensitive information.

Using the catchy moniker of "sunshine" statutes, bills have been introduced in Congress, as well as various state legislatures, seeking to restrict or eliminate the opportunity for judges and litigants to control the scope of dissemination of materials generated in litigation. Fortunately, these attempts have not met with success, although the issue continues to surface.

It's a right of privacy

Court orders and confidentiality agreements are used to ensure the confidentiality of sensitive, private and proprietary information. The United States recognizes a right to privacy, and the right to exclusive ownership of private property is protected under the Constitution. These rights are lost when private information becomes public or a trade secret is revealed to a competitor. If the authority of courts to issue protective orders is diminished, those fundamental rights of litigants cannot be protected. Large amounts of information are generated in litigation, and that information may become part of the public domain without the continued viability of protective orders. Those who find themselves a party to a lawsuit should not be required to surrender these rights.

The public's ability to access information produced in litigation must be balanced with litigants' rights to privacy. Recognizing the importance of these apparently conflicting interests, the U.S. Supreme Court has never recognized a First Amendment right on the part of the public to access information used in civil litigation, nor has it recognized a right to access information exchanged in discovery.

Disclosure increases costs

If protective orders are curtailed or abolished, it is expected that the cost of litigation will increase. If confidentiality cannot be protected, parties will be inclined to fight production of documents that may be sensitive or confidential rather than risk their indiscriminate disclosure. This could make it more difficult for plaintiffs' attorneys to investigate issues in particular cases, because the consequences of public disclosure would interject much broader potential adverse results.

Under the broad discovery that exists today, much...