Taming Discovery Costs Through Public Access

Eben, your points are well taken. This paper took a long time just to research because I was really interested in this topic and by the time I was done with that, I tried very hard, perhaps too hard to limit its scope and set out only to prove that a particular method would mitigate FINANCIAL obstacles to justice. True, I had a very pro-plaintiff attitude. It's not that I don't care about privacy, I do.

To your first point on the presumption- the presumption of open access to court proceedings and court documents on record is clear and mentioned in many cases - or was at least paid lip service. Van Etten is one such example. My take on it is that the FRCP granted broad rights to seal things and put them under protective orders, but that it expected "good cause" to really mean "good cause." I don't think that it was intended for virtually everything to be sealed all the time. Maybe I'm wrong here. That, you would know better than I, but that is the sense that I get. I probably should have advocated that documents actually submitted to the courts be open to public (not everything accessed through discovery), particularly where the case was, in fact, decided. That, in conjunction with the ability to get specific documents sealed where a true harm looms along with standard redaction procedures, would seem fair. I should have left the pre-trial stuff alone.

-- KateVershov - 09 May 2008