A Balancing Act: Discovery Costs, Public Access, and Privacy Introduction Redress in civil litigation has long ceased to be a function of merit. Notice pleading and liberal discovery have created the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments. Armies are expensive. The contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. Lowering the costs of discovery while assuring an adequate level of privacy is a challenging task. Secrecy in Litigation Courts may issue protective orders on all discovery documents and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to the disposition of the case. Settlement agreements can also be sealed. Afterwards, a gag order may remain in effect, preventing the parties from even speaking of the suit. One must make a petition to unseal a document. Rule 26(c)(1) of the FRCP states that “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” What constitutes “annoyance” or “undue burden” is amorphous. Even the definition of traditionally private information like trade secrets has become bloated, including revenue information and profits (such information is publicly filed with the SEC).

The Balancing Public access to information and the resolution of cases on the merits are not mutually exclusive. Protection orders and sealing mean that subsequent litigants retain new lawyers who need time to learn the case and must begin the process of scavenging through the data dump anew. If gag orders are still in effect, plaintiffs are limited in potential witnesses as well. For repeat defendants, each subsequent discovery process can be cheaper because the defendant uses the same lawyer and knows where to find all the needed documents, especially if utilizing electronic discovery. The documents the plaintiff produces are generally not as voluminous as the defendant’s and her facts do not differ substantially from those of previous plaintiffs. Secrecy also means that by covering up defective products or toxic leaks, more unsuspecting victims and future plaintiffs are created. Consider that Bridgestone/Firestone tires killed 103 people by 2000, even though the Van Etten discovery commenced two years earlier. On the other hand, a lack of secrecy could also prevent some plaintiffs from bringing legitimate suits for fear of public exposure. Plaintiffs agree to secrecy because they are paid a premium. Although neither party has the interests of future plaintiffs in mind, a default public rule could mean smaller settlements for current plaintiffs, a greater incentive for defendants to not settle, and a longer, more expensive discovery process if more requests are contested. As the Court argued in Seattle Times, heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” [4] New Arguments for Open Access In Seattle Times the Court stated: “abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the . . . the government's substantial interest in protecting the integrity of the discovery process.” [5] This way, public hazards would not be concealed and fishing expeditions for unrelated suits would be prevented. If parties are aware that all discovery documents are presumptively public, but remain subject to mandatory redaction, they will be less likely to dump items like thousands of invoices for pretzels, which include account numbers, or irrelevant documents they truly do not want exposed. They may also seek judicial discretion to narrow overly broad production requests. This will shift costs to the cheapest cost avoider: the document owner will have to parse through his own records, rather than forcing the other party to do so. Parties may be less likely to turn over relevant documents, but that has always been the case and sanctioning is available. For defendants, keeping discovery public would lower the costs of production: subsequent plaintiffs would be privy to the discovery received by other litigants and future plaintiffs may be eliminated entirely. Overall costs for defendants may not be lowered, but unlike the costs of discovery to potentially innocent parties, the prevention of further meritorious lawsuits is hardly a legitimate judicial concern.