Protective orders and confidentiality agreements: they need protecting from legislators.

• Author: Morrison, Stephen G.

Willingness of parties to produce information leading to dispute resolution would be compromised if privacy is not protected

HISTORICALLY, protective orders have worked well to balance the competing interests of open discovery and legitimate privacy. But in recent years, the U.S. Congress, many state legislatures, and court rules committees have considered proposals to restrict or eliminate the use of protective orders and confidentiality agreements. Since court orders and confidentiality agreements are used to ensure the confidentiality of sensitive, private information, such as trade secrets and medical records, litigants could gain an unfair advantage if they became armed with this extremely private information.

Confidentiality is of paramount importance during discovery because the willingness of the parties to produce information voluntarily often depends on the assurance that the privacy of information exchanged in the discovery process will be preserved. Any changes regarding confidentiality or the expectation of confidentiality are certain to produce fundamental changes and a chain reaction affecting the entire litigation process. Many negative consequences can be expected.

NEGATIVE CONSEQUENCES

1. Loss of Fundamental Litigant Rights

   The fight to privacy and the fight to exclusive ownership of private property are fundamental rights protected by the federal and state constitutions. These rights are lost when private information becomes public or a trade secret is revealed to a competitor. If the courts' authority to issue protective orders is diminished, they can not protect these fundamental fights of the litigants. Since the massive amount of information generated in litigation often forces litigants to place their privacy and proprietary information at risk to vindicate legal fights, protective orders insulate those fights while allowing the legal disputes to be resolved.

   The public's limited fight of access to information produced in litigation must be weighed by the courts in today's society as they carefully balance between the fight to privacy and the public's fight to know. A legal system that does not give proper weight to keeping private matters private could lead to an Orwellean society with all of its underlying evils.

   As a result of the careful balancing that must take place in preserving privacy and recognizing public access to information, the U.S. Supreme Court has never recognized a First Amendment right to access to information used in a civil trial and certainly not a fight to access to information exchanged in discovery.(1) However, our legal system does recognize a limited public access to information used in the courts, primarily in criminal cases.(2) According to the Supreme Court, in certain contexts, the right of access enables the public to monitor the functioning of the judicial system better, and this promotes participation in government activities.

2. Increased Litigation Burdens and Costs

   If confidentiality cannot be protected, litigants will be more inclined to fight every document request for information that may be sensitive or confidential. This will cause increased hearings before judges, added legal costs to both parties, as well as the public costs for additional court time. The assurance of confidentiality promotes settlement and the prompt resolution of disputes.

   Confidentiality at settlement is...