Protective orders and discovery sharing: beware of plaintiffs bearing sharing agreements.

• Author: Leader, Joshua K.

This article originally appeared in the June 2015 Product Liability Committee newsletter.

IN what has become an all too frequent state of affairs, plaintiffs' attorneys, rather than fighting all aspects of confidentiality agreements and protective orders, put on a mask of cooperation, agree to a certain scope of confidentiality, but then insist upon a discovery sharing agreement, which essentially permits unfettered use of confidential materials obtained in one litigation in any other litigation, in any jurisdiction, by any plaintiff's counsel, without restriction or oversight. Beware! Such agreements pose significant risk to defendants on many fronts.

Sharing agreements generally allow plaintiffs to disseminate confidential discovery materials to other plaintiffs' attorneys outside of a particular case. Typically, there is no requirement in such agreements that the recipient of the discovery have live claims or claims that are in any way related or similar to the litigation from which the discovery was obtained, or any claim at all. (1) This practice is known as "discovery sharing."

While many commentators and courts are proponents of such sharing provisions, espousing the benefits of judicial economy and reduction of litigation costs as well as promoting the public interest and public health and safety, there is still a significant difference of opinion on whether such provisions are appropriate or beneficial. (2) However, there can be no doubt that a certain segment of the Plaintiffs' Bar is not proposing sharing agreements out of a sense of concern for judicial economy, transparency in the judicial process, or anything so altruistic. Rather, they seek to lessen their burden in prosecuting claims, manufacture new litigation from confidential information, and lower the bar to maintaining their claims, even when those claims are weak. An approach which permits one attorney to pass along confidential materials gathered from a defendant in one litigation to another attorney in another jurisdiction with a wholly unrelated case or even no case at all, with no real control over the dissemination of such confidential materials, is highly prejudicial to that defendant, provides unfair leverage to the plaintiffs' counsel, whose clients may never have been entitled to see or obtain such materials in their individual cases, and drastically increases the risk of inadvertent and unauthorized disclosure of such confidential materials, often to the great detriment of defendants.

This should be a call to arms for the Defense Bar and for our clients.

Additionally, discovery sharing has evolved from the mere exchange of materials from one attorney to another to the practice today of selling confidential discovery information for a profit, (3) and the rise of plaintiffs' litigation support groups creating databases of confidential discovery materials for open and ready dissemination to their paying or otherwise supporting members. (4)

Defendants should vigorously oppose plaintiffs' efforts to implement sharing agreements wherever and however possible. While many courts generally seem inclined to favor sharing agreements in the first instance, there are also many courts that share defendants' concerns about the dangers of such agreements. As discussed below, numerous courts have analyzed the legitimate interests set forth by both proponents and opponents of discovery sharing, and there are valid and strong arguments adopted by many courts in opposition to the entry of orders permitting sharing. The defense should continue to assert those arguments to oppose sharing on any level, and at the very least, where courts seem intent on permitting some measure of sharing, defendants should seek to tailor such sharing as narrowly as possible.

1. There is No Constitutional or Common Law Right to Discovery Materials

   Contrary to arguments often set forth by plaintiffs, discovery sharing is not constitutionally protected under the First Amendment. (5) In the seminal case on this issue, upon striking a constitutional challenge to the entry of a protective order, the Supreme Court of Washington stated that "the effective administration of justice does not require dissemination beyond that which is needed for litigation of the case. It was the needs of the litigation and only those needs for which the courts adopted [Rule 26]...." (6) The...