Privacy issues from the judicial perspective: requirements for protective orders; the frequency with which courts employ protective orders should influence counsel to draft the application with detailed statements.

• Author: Fox, Mark D.

IN THE context of litigation, the anticipated threshold issue--should the court require disclosure to an adversary of private or sensitive information--most often becomes how and to whom the court will permit disclosure of that information. Practitioners may need to explain to clients the breach of privacy consequences of raising certain issues in a lawsuit, particularly with respect to damages. They also should be aware of the necessity of raising privacy issues early in the proceedings so as to avoid a waiver.

MANDATORY DISCLOSURE AND PROTECTIVE ORDERS

In the United States, concerns may arise from a consideration of the mandatory disclosure requirements of Rule 16(a)(1)(A) and (B) of the Federal Rules of Civil Procedure, which, within 14 days of the Rule 26(f) scheduling conference require disclosure of the identities of witnesses and documents "that the disclosing party may use to support its claims or defenses." There are exceptions to the disclosure requirement, but absent a stipulation between the parties, the prudent practitioner should act to avoid the potential for preclusion pursuant to Rule 37(c)(1) by bringing any objections to the attention of the court before the Rule 26(f) conference or by stating the objection in the Rule 26(f) discovery plan.

Parties with privacy concerns about the contents of material required to be produced as part of mandatory initial disclosure also should consider the impact of the amendment to Rule 5(d), which now excludes from the requirement of filing with the clerk (and thereby renders unavailable to the public) disclosures made under Rule 26(a)(1) and (2) until they are used in the proceeding or filing is ordered by the court. Once such discovery materials are used in the action, for example, as an exhibit in support of a motion, they may become available to the public. For that reason, protective orders entered under Rule 26(c) are becoming more routine.

An April 1996 study by the Federal Judicial Center, Protective Order Activity in Three Federal Judicial Districts, Report to the Advisory Committee on Civil Rules, by Elizabeth C. Wiggins, Melissa J. Pecherska and George Cort, revealed that in the District of Columbia in 1990 through 1992, protective order activity occurred in between 8 and 10 percent of all the civil cases on the docket. While the numbers were lower (approximately 5 percent) in the other districts studied, the number of cases affected was still significant. The authors' experience in the Southern District of New York confirms the findings in the three districts in the study that of all applications for protective orders between 17 and 26 percent are submitted by stipulation of the parties.

APPLICATIONS FOR PROTECTIVE ORDERS

1. General Provisions

   The frequency with which courts employ protective orders should influence counsel to draft the application with a detailed statement of:

   * the categories of information that would be subject to the order;

   * the procedures proposed for determining which information falls within the protected categories;

   * the procedure for designating material subject to the order;

   * the persons who may have access to the material protected by the order;

   * the extent to which protected materials may be used in related litigation;

   * the procedures for maintaining security;

   * the procedures for challenging particular claims of confidentiality;

   * the exceptions, if any, to the order's general prohibitions against disclosure;

   * the termination of the order after the conclusion of the litigation or at another time;

   * the return or destruction of materials received pursuant to the order; and

   * the court's authority to modify the order, both during and after the conclusion of the litigation. (1)

   The provisions of the Federal Rules of Civil Procedure governing the issuance of protective orders are in Rule 26(c) and were formulated to deter any improper use of the broad range of discovery options authorized by the Federal Rules.

   Rule 402 of the Federal Rules of Evidence provides in substance that all relevant evidence is admissible except as otherwise provided by law, and that evidence which is not relevant is not admissible. Under Evidence Rule 401:

   "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The relevance of evidence, however, is not the yardstick by which a court measures privacy concerns. Rule 26(b)(1) broadens the scope of potential disclosures as follows:

   Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.... Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26(c) potentially narrows the scope of disclosure by authorizing the court, for good cause shown, to enter any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. The options, which are not exclusive, include:

   1. Precluding the discovery.

   2. Specifying the terms and conditions of the discovery. For example, in cases that involve incarcerated plaintiffs, courts, largely as a housekeeping matter, often have directed that a deposition be conducted by telephone conference call or solely on written questions. The same considerations may apply when the witness is located at a distance that does not justify the travel expense of attorneys.

      Courts also may adjourn ongoing discovery proceedings to the courthouse, not merely to maintain control over obstreperous lawyers, the most common reason, but to even the playing field. In one case, a relatively small municipal police department wanted depositions of armed and uniformed defendant-officers conducted at the precinct so that coverage could be maintained. The plaintiff complained that he felt intimidated by the presence of the guns in the deposition room, so the depositions were adjourned to the federal courthouse, where all those who enter are required to check weapons at the door.

   3. Specifying and limiting the means or methods of discovery. For example, unless the court orders otherwise, Local Rule 33.3 of the Southern District of New York restricts the categories of information that may be the subject of interrogatories at the beginning of discovery to the names of witnesses with knowledge of information relevant to the subject matter of the action, the computation of each category of damage alleged, and the existence, custodian, location and general description of relevant documents or information of a similar nature.

   4. Limiting the scope of discovery to specified matters and excluding inquiry into others.

   5. Limiting the persons present during the taking of discovery. Issues in this area abound. In almost every case involving expert evidence, counsel want their expert present at most depositions and especially at the deposition of the opposing expert.

   6. Opening of sealed depositions only on order of the court.

   7. Limiting or specifying how trade secret or other confidential research, development or commercial information will be revealed. When commercially valuable information is in issue, as in cases of alleged theft of trade secrets, courts often appoint an independent expert to examine the formula or process of each side's product and render an opinion. This procedure protects each party's confidential material from the other.

   8. The simultaneous filing of specified documents in sealed envelopes to be opened only as directed by the court.

      In fashioning a protective order, or indeed in determining whether to enter one, the court will balance the movant's legitimate concerns about confidentiality against the needs of the litigation, protecting individual privacy or the commercial value of the information, while making it available for legitimate litigation use. (2)

2. Sensitive Health Information

   Applications for protective orders often are made by parties who seek to avoid requested disclosure. For example, plaintiffs who allege physical injuries caused by a defendant have placed their medical conditions in issue and thereby have waived the privilege and privacy rights concerning medical records and information that otherwise might have shielded the records from disclosure. When a plaintiff seeks recovery for emotional distress and the costs of psychiatric and other mental health treatment alleged to have been necessitated by the action of a defendant, that defendant often demands all records of all treatment the plaintiff may have received. The demand may reach back for many years or even the plaintiff's entire life.

   In support of the demand, the defendant asserts that some prior incident of psychiatric trauma, and not the alleged act or omission, may have caused the injury. Typically, the plaintiff will oppose the demands because the treatment was too remote in time to be relevant. On an in camera review, the court usually lacks the expertise in the field of mental health to determine...