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KateVershov-SecondPaper 6 - 07 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now. | | |
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I'm just sketching out an idea for now. | |
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< | | | | “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.” – Representative John Dingell | |
<
< | After decades of inability to stem the tide of the contract-to-fiduciary movement in law, major corporations have decided to redirect their energy from the substance to the procedure of law. Redress in civil litigation has long ceased to be a function of merit. Justice in our legal system is bought and sold. Notice pleading and liberal discovery have borne the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments. In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, 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.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process.
Armies are expensive and the contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. The lucky few who manage to procure an army are oftentimes unable to share the information they have obtained with others. Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document.
Combined, the weak “good cause” standard for protective orders and the premium paid for secrecy upon settlement, essentially eviscerate all notions of open access. 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). Judge Weinstein’s injunction related the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.”
Protection orders and sealing mean that subsequent litigants retain lawyers who need time to learn the details of the case and must begin the process of discovery and scavenging through the data dump anew. For repeat defendants, each subsequent discovery process can be cheaper because the defendant uses the same lawyer who does not need to be brought up to speed, knows where to find all the documents it needs to send, and if utilizing electronic discovery, may have them on hand quickly. The documents the plaintiff produces are generally not nearly as voluminous as the defendant’s and the plaintiff’s facts do not differ substantially from previous plaintiffs. Public hazards such as defective tires or toxic leaks are hidden, creating future unwarned victims. | >
> | After decades of inability to stem the tide of the contract-to-fiduciary movement in law, major corporations have redirected their energy from the substance to the procedure of law. Redress in civil litigation has long ceased to be a function of merit. Justice in our legal system is largely bought and sold. Notice pleading and liberal discovery have borne the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments. | | | | |
<
< | While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public. | >
> | Armies are expensive and the contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. The few who manage to procure an army are oftentimes unable to share the information they have obtained with others. Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document. | | | | |
>
> | In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, 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.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process. | | | | |
>
> | The weak “good cause” standard for protective orders essentially eviscerates all notions of open access. 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). Judge Weinstein’s injunction related to the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” | | | | |
>
> | In reality, 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 lawyers who need time to learn the details of the case and must begin the process of discovery and 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 who does not need to be brought up to speed, knows where to find all the documents it needs to send, and if utilizing electronic discovery, may have them on hand quickly and avoid almost all production costs. The documents the plaintiff produces are generally not nearly as voluminous as the defendant’s and the plaintiff’s facts do not differ substantially from those of previous plaintiffs. Secrecy drives up the costs for plaintiffs. | | | | |
>
> | Many plaintiffs agree to secrecy because they are paid a premium. Neither the plaintiff nor the defendant has the interests of future plaintiffs in mind. While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public. | | | | |
>
> | Proponents of public access to discovery documents often cite the need for government oversight, public health and safety, and media and research access. However, the elephant in the room remains unnamed: few want to say that the rules of discovery discriminate against the poor. That’s a redish banner few care to carry | | | | |
<
< | Proponents of public access to discovery documents often cite the need for government oversight, public health and safety, and media and research access. | | | |
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KateVershov-SecondPaper 5 - 06 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now. | |
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< | In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, 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.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process. | >
> | “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.” – Representative John Dingell
After decades of inability to stem the tide of the contract-to-fiduciary movement in law, major corporations have decided to redirect their energy from the substance to the procedure of law. Redress in civil litigation has long ceased to be a function of merit. Justice in our legal system is bought and sold. Notice pleading and liberal discovery have borne the war of the data dump; victorious is he whose army resurfaces clutching several damning fragments. In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, 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.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process.
Armies are expensive and the contingency fee system only assures that profitable cases are taken, not necessarily meritorious ones. The lucky few who manage to procure an army are oftentimes unable to share the information they have obtained with others. Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document.
Combined, the weak “good cause” standard for protective orders and the premium paid for secrecy upon settlement, essentially eviscerate all notions of open access. 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). Judge Weinstein’s injunction related the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.”
Protection orders and sealing mean that subsequent litigants retain lawyers who need time to learn the details of the case and must begin the process of discovery and scavenging through the data dump anew. For repeat defendants, each subsequent discovery process can be cheaper because the defendant uses the same lawyer who does not need to be brought up to speed, knows where to find all the documents it needs to send, and if utilizing electronic discovery, may have them on hand quickly. The documents the plaintiff produces are generally not nearly as voluminous as the defendant’s and the plaintiff’s facts do not differ substantially from previous plaintiffs. Public hazards such as defective tires or toxic leaks are hidden, creating future unwarned victims. | | | While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public. | |
<
< | Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document. | | | | |
<
< | Combined, the weak “good cause” standard for protective orders and the premium paid for secrecy upon settlement, essentially eviscerate all notions of open access. 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 fairly amorphous. 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). Judge Weinstein’s injunction related the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” | | | |
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KateVershov-SecondPaper 4 - 06 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now. | |
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< | Court argues at the same time that The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders and that the rule proposed by the newspaper would require too much judicial effort. | | | | |
<
< | Steve Jobs said that the Kindle wouldn’t succeed because we live in a society that doesn’t read. He’s right. Not only do we not read, but we don’t expect people to read. Consider that no one in congress really read the Patriot Act. Nor did the reporters. Congressmen routinely have no idea of what is in the bills he or she votes for. Even the interest groups working on them rarely know the parts they’re not concerned with. Discovery documents? A joke. Neither side actually reads everything, much less the judge. Where there is an inability to parse through every possible document to decide whether or not it should be made public, the presumption should be that it is public in the absence of evidence to the contrary. | >
> | In ruling that protection orders over pre-trial discovery documents do not violate the First Amendment, 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.” However, when the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process. | | | | |
<
< | FOIA recently changed its standard such that if there is a rational basis to reject a request, it shall be requested. | >
> | While it is recognized that “the judge is the primary representative of the public interest in the judicial process,” in Seattle Times, the Court argued that “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals.” Obviating the need for a judge to acknowledge a countervailing public interest or to determine whether there are less restrictive alternatives to complete sealing, Seattle Times stripped the judges of their responsibility to represent the public. | | | | |
<
< | A lawyer should be able to pass on the discovery documents he received to another lawyer working on a similar case. | >
> | Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court (Seattle Times). Courts may issue protective orders on all discovery documents (FRCP 26(c)) and allow documents filed with the court to be filed under seal, sealing everything from the identities of the parties to exhibits and testimony to the disposition of the case (FRCP 5.2). Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. Such orders do not expire or require renewal. One must make a petition to unseal a document. | | | | |
<
< | The Law Should Recognize a Public Interest Beyond Freedom of the Press in Sealing and Unsealing Documents | >
> | Combined, the weak “good cause” standard for protective orders and the premium paid for secrecy upon settlement, essentially eviscerate all notions of open access. 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 fairly amorphous. 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). Judge Weinstein’s injunction related the Zyprexa Litigation is a good example of the way judges view “good cause” determinations: he acknowledges “the general public’s interest in the information” but goes on to quote Arthur R. Miller: “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” | | | | |
<
< | “abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the importance of discovery in civil litigation and the government's substantial interest in protecting the integrity of the discovery process.” Seattle | | | | |
<
< | But at some point it must, right? There has to be a certain point beyond which the status quo will not be tolerated. When the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process. | | | | |
<
< | Intro
• Law is war and law firms are armies | | | | |
<
< | • We live in a society where justice is largely bought and sold | >
> | Proponents of public access to discovery documents often cite the need for government oversight, public health and safety, and media and research access. | | | | |
<
< | • Is the public interest law firm the only way to combat these wars of attrition? Is it about conglomerations of money? Can it be about conglomerations of minds?
• Redress is more of a function of resources than merit
o But no one’s talking about this. We will give you a million reasons why the discovery rules should be changed, but economic disparity cannot be one of them. We dare not raise that banner.
o Why should that be the case? We don’t provide public lawyers for civil litigation and the contingency fee system, rather than benefitting those without sufficient means, leads to the tossing of cases that don’t look profitable at first glance. The potential nightmare of discovery is certainly a factor of the case’s profitability. Even organizations like Public Citizen do not want to discuss this. http://www.citizen.org/documents/Proposed_rules_amendments_PCComments.pdf
• Means that civil litigation is only practiced in very large firms, or when small firms agree to help one another on similar cases
o If you limit the number of people willing or able to work on civil litigation cases, injustices will not be redressed and deterrence will shrink
• How we handle discovery speaks to how we as a society are dealing with knowledge growth and the processing of information. Tales of lawyers who are specialists not in a particular field, but a specific act are not new. But is this how we want to practice law? So far, the large corporations and firms are taking advantage of lawyers’ specializations, confident in the fact that if you silence one such specialist, it will take time for another one to come along.
• The internet has been the great equalizer. Consumers have gotten more bargaining power. Patients are more informed about their illnesses. Businesses with very little venture capital have flourished. The expense of travelling to communicate with others or to acquire information has been curbed. Consider the phenomenon of day traders.
Types of Sealing & Redaction
• Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court. 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 exhibits and testimony to the disposition of the case. Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit.
• Why do we need these things?
o Trade secrets
Trade secrets have been loosely defined as including confidential research and development information, marketing plans, revenue information, pricing information, profits, costs, overhead, manufacturing specifications, and customer lists (Zyprexa 51-52)
• Much of this is information that must be publicly filed with the SEC anyway
Trade secrets can be dealt with through specific document citation and court review
o Rule 26(c)(1) of the FRCP “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”
“To determine whether good cause exists, courts balance “the need for information against the injury that might result if uncontrolled disclosure is compelled.”
“Balancing requires taking into account litigants’ privacy rights as well as the general public’s interest in the information.”
But goes on to say that “discovery involves the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public”
o Hide private information like SS numbers and bank accounts
o prevents fishing
Fishing expeditions can be sanctioned with rules already on the books
Despite the Supreme Court’s orders, many lower courts still require somewhat heightened pleading
Who is really going to read these documents?
• Another litigant or potential litigant, in which case the law generally says you have the right to these documents anyway
• A journalist – you can intervene or go to court to get something unsealed, or mastermind a conspiracy to circumvent the rules (see New York Times)
o So you won’t chill lawsuits from people afraid of exposure
Same as the other side, really private stuff of no legitimate public interest can be sealed upon a sufficient showing
o They want to expedite the process
Is anything really expedited in the process? You deal with one plaintiff, but what about the rest? When you put them all together, is this really faster?
• “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” (Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 447 (1991) cited in http://psychrights.org/States/Alaska/CaseXX/EilLilly/MemorandumFinaJudgmentOrderInjunction.pdf )
• Really? In fact, without public access to information, winning a case on the merits may no long be possible.
Lawsuits take years as it is.
The amount of time spent going over these documents is going to be the same, the only difference will be who goes over them
• What about the idea of the cheapest cost avoider and forcing the other side to parse out its own information?
• Perhaps knowing that the presumption is that documents will be made public, you will limit the amount of material you send. Double-edged sword. Also, if sealing something entirely is difficult to do, and you are forced to redact the documents you send, that may also limit the amount of material you send.
• Can declassify a document by a showing that the need for disclosure outweighs the need for further protection. Need a motion of a party or non-party who can demonstrate a need to know.
• Seattle Times, Goodyear
Problems With Sealing
• Lawyers reinvent the wheel
o Prevents further lawsuits, but not based on any notions of justice, but simply because of resources
o Why do the courts not talk about this as a reason for preventing sealing?
• Things are submitted under seal that don’t need to be to avoid the requirement of redaction
• Researchers can’t get access
• Journalist access
• Medical information – Eli Lilly example
o FDA is not errorless
• Essentially means that you can only get access by being rich and having time on your hands
• Citizen participation, oversight of government. quotes that it’s the judge’s role to protect the public interest
o Neither party has an interest in not sealing documents or fighting protective orders because one party is paying for the silence and the other is accepting the payment
o “the judge is the primary representative of the public interest in the judicial process” Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999)
o What do we do when judges can no longer perform their roles?
o “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals” (Seattle)
o since when is administrative efficiency a compelling government interest?
o In its recommendations concerning amending the Federal Rules of Civil Procedure, Public Citizen suggests that Rule 5.2e be changed to read “if necessary to protect private information that is not otherwise protected under Rule 5.2(a), and only where the interest in privacy outweighs the public interest in openness, a court may by order in a case…”
o 26(c) and 5.2 protective orders based on “good cause”
Potential changes
• “a protective order is inappropriate anytime the effect is to conceal evidence of a hazard to the surrounding community.” http://findarticles.com/p/articles/mi_qa3843/is_200604/ai_n17185630/pg_7
• Sunshine in Litigation Act
• “Florida is widely considered to be the trend-setter for legislation prohibiting the granting of protective orders when doing so would conceal public hazards.216 Referred to as the "Sunshine in Litigation Act,"217 Florida's statute defines "public hazard" broadly to include defective products or any other instruments, persons, procedures, or devices that have caused or is likely to cause injury.218 While providing for an in camera hearing to determine the interests at stake,219 the Act flatly prohibits a judge from sealing a court record or proceeding if the effect of the closure will be to diminish the public's ability to access information relating to a public hazard.220 Furthermore, the Act prohibits the enforcement of any confidential settlement agreement that conceals information about a public hazard; these are considered void as contrary to public policy.221”
• “the states of Washington222 and Arizona223 have very similar provisions prohibiting the issuance of protective orders and other sealing mechanisms when the public interest is implicated. To some extent, Louisiana,224 Arkansas,225 and Texas226 each prohibit confidential settlement agreements which have the effect of concealing a public hazard, treating the settlements as void and against public policy.227 Notably, Virginia prohibits confidential settlements and gag rules in wrongful death and personal injury cases, effectively freeing attorneys to discuss relevant matters with future litigants.228” http://findarticles.com/p/articles/mi_qa3843/is_200604/ai_n17185630/pg_16
What is the “Press” ?
• Blogger contributions – floating up effect
o Already have issues of blogger immunity
• Crowdsourcing
o DOJ case
o Necessary where other rules of discovery allow for data dumping | | | |
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KateVershov-SecondPaper 3 - 06 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now. | |
>
> | Court argues at the same time that The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders and that the rule proposed by the newspaper would require too much judicial effort. | | | Steve Jobs said that the Kindle wouldn’t succeed because we live in a society that doesn’t read. He’s right. Not only do we not read, but we don’t expect people to read. Consider that no one in congress really read the Patriot Act. Nor did the reporters. Congressmen routinely have no idea of what is in the bills he or she votes for. Even the interest groups working on them rarely know the parts they’re not concerned with. Discovery documents? A joke. Neither side actually reads everything, much less the judge. Where there is an inability to parse through every possible document to decide whether or not it should be made public, the presumption should be that it is public in the absence of evidence to the contrary.
FOIA recently changed its standard such that if there is a rational basis to reject a request, it shall be requested. | | | The Law Should Recognize a Public Interest Beyond Freedom of the Press in Sealing and Unsealing Documents | |
>
> | “abuses of the Rules by litigants, and sometimes the inadequate oversight of discovery by trial courts, do not in any respect lessen the importance of discovery in civil litigation and the government's substantial interest in protecting the integrity of the discovery process.” Seattle
But at some point it must, right? There has to be a certain point beyond which the status quo will not be tolerated. When the exception becomes the rule, perhaps it is time to reconsider if there is any “integrity” left in the process. | | | Intro
• Law is war and law firms are armies | |
>
> | • We live in a society where justice is largely bought and sold | | | • Is the public interest law firm the only way to combat these wars of attrition? Is it about conglomerations of money? Can it be about conglomerations of minds? | |
>
> | | | | • Redress is more of a function of resources than merit | |
>
> | o But no one’s talking about this. We will give you a million reasons why the discovery rules should be changed, but economic disparity cannot be one of them. We dare not raise that banner.
o Why should that be the case? We don’t provide public lawyers for civil litigation and the contingency fee system, rather than benefitting those without sufficient means, leads to the tossing of cases that don’t look profitable at first glance. The potential nightmare of discovery is certainly a factor of the case’s profitability. Even organizations like Public Citizen do not want to discuss this. http://www.citizen.org/documents/Proposed_rules_amendments_PCComments.pdf | | | • Means that civil litigation is only practiced in very large firms, or when small firms agree to help one another on similar cases | |
>
> | | | | o If you limit the number of people willing or able to work on civil litigation cases, injustices will not be redressed and deterrence will shrink | |
>
> | • How we handle discovery speaks to how we as a society are dealing with knowledge growth and the processing of information. Tales of lawyers who are specialists not in a particular field, but a specific act are not new. But is this how we want to practice law? So far, the large corporations and firms are taking advantage of lawyers’ specializations, confident in the fact that if you silence one such specialist, it will take time for another one to come along.
• The internet has been the great equalizer. Consumers have gotten more bargaining power. Patients are more informed about their illnesses. Businesses with very little venture capital have flourished. The expense of travelling to communicate with others or to acquire information has been curbed. Consider the phenomenon of day traders. | | | Types of Sealing & Redaction
• Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court. 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 exhibits and testimony to the disposition of the case. Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit. | |
<
< | • Redaction, protective orders, sealing, gag orders | >
> | | | | • Why do we need these things? | |
>
> | | | | o Trade secrets | |
>
> | Trade secrets have been loosely defined as including confidential research and development information, marketing plans, revenue information, pricing information, profits, costs, overhead, manufacturing specifications, and customer lists (Zyprexa 51-52)
• Much of this is information that must be publicly filed with the SEC anyway | | | Trade secrets can be dealt with through specific document citation and court review | |
>
> | | | | o Rule 26(c)(1) of the FRCP “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” | |
>
> | “To determine whether good cause exists, courts balance “the need for information against the injury that might result if uncontrolled disclosure is compelled.”
“Balancing requires taking into account litigants’ privacy rights as well as the general public’s interest in the information.”
But goes on to say that “discovery involves the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public” | | | o Hide private information like SS numbers and bank accounts | |
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> | | | | o prevents fishing | |
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> | | | | Fishing expeditions can be sanctioned with rules already on the books | |
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> | | | | Despite the Supreme Court’s orders, many lower courts still require somewhat heightened pleading | |
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> | | | | Who is really going to read these documents? | |
>
> | | | | • Another litigant or potential litigant, in which case the law generally says you have the right to these documents anyway | |
>
> | | | | • A journalist – you can intervene or go to court to get something unsealed, or mastermind a conspiracy to circumvent the rules (see New York Times) | |
>
> | | | | o So you won’t chill lawsuits from people afraid of exposure | |
>
> | | | | Same as the other side, really private stuff of no legitimate public interest can be sealed upon a sufficient showing | |
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> | | | | o They want to expedite the process | |
>
> | | | | Is anything really expedited in the process? You deal with one plaintiff, but what about the rest? When you put them all together, is this really faster? | |
>
> | | | | • “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” (Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 447 (1991) cited in http://psychrights.org/States/Alaska/CaseXX/EilLilly/MemorandumFinaJudgmentOrderInjunction.pdf ) | |
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> | | | | • Really? In fact, without public access to information, winning a case on the merits may no long be possible. | |
>
> | | | | Lawsuits take years as it is. | |
>
> | | | | The amount of time spent going over these documents is going to be the same, the only difference will be who goes over them | |
>
> | | | | • What about the idea of the cheapest cost avoider and forcing the other side to parse out its own information? | |
>
> | | | | • Perhaps knowing that the presumption is that documents will be made public, you will limit the amount of material you send. Double-edged sword. Also, if sealing something entirely is difficult to do, and you are forced to redact the documents you send, that may also limit the amount of material you send. | |
>
> | | | | • Can declassify a document by a showing that the need for disclosure outweighs the need for further protection. Need a motion of a party or non-party who can demonstrate a need to know. | |
>
> | | | | • Seattle Times, Goodyear
Problems With Sealing | | | o In its recommendations concerning amending the Federal Rules of Civil Procedure, Public Citizen suggests that Rule 5.2e be changed to read “if necessary to protect private information that is not otherwise protected under Rule 5.2(a), and only where the interest in privacy outweighs the public interest in openness, a court may by order in a case…”
o 26(c) and 5.2 protective orders based on “good cause” | |
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> | Potential changes
• “a protective order is inappropriate anytime the effect is to conceal evidence of a hazard to the surrounding community.” http://findarticles.com/p/articles/mi_qa3843/is_200604/ai_n17185630/pg_7
• Sunshine in Litigation Act
• “Florida is widely considered to be the trend-setter for legislation prohibiting the granting of protective orders when doing so would conceal public hazards.216 Referred to as the "Sunshine in Litigation Act,"217 Florida's statute defines "public hazard" broadly to include defective products or any other instruments, persons, procedures, or devices that have caused or is likely to cause injury.218 While providing for an in camera hearing to determine the interests at stake,219 the Act flatly prohibits a judge from sealing a court record or proceeding if the effect of the closure will be to diminish the public's ability to access information relating to a public hazard.220 Furthermore, the Act prohibits the enforcement of any confidential settlement agreement that conceals information about a public hazard; these are considered void as contrary to public policy.221”
• “the states of Washington222 and Arizona223 have very similar provisions prohibiting the issuance of protective orders and other sealing mechanisms when the public interest is implicated. To some extent, Louisiana,224 Arkansas,225 and Texas226 each prohibit confidential settlement agreements which have the effect of concealing a public hazard, treating the settlements as void and against public policy.227 Notably, Virginia prohibits confidential settlements and gag rules in wrongful death and personal injury cases, effectively freeing attorneys to discuss relevant matters with future litigants.228” http://findarticles.com/p/articles/mi_qa3843/is_200604/ai_n17185630/pg_16 | | | What is the “Press” ?
• Blogger contributions – floating up effect
o Already have issues of blogger immunity |
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KateVershov-SecondPaper 2 - 06 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now. | | | A lawyer should be able to pass on the discovery documents he received to another lawyer working on a similar case. | |
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< | Do we really want liberal pleading and discovery requirements? What about the idea of the cheapest cost avoider and forcing the other side to parse out its own information? | | | The Law Should Recognize a Public Interest Beyond Freedom of the Press in Sealing and Unsealing Documents
Intro
• Law is war and law firms are armies
• Is the public interest law firm the only way to combat these wars of attrition? Is it about conglomerations of money? Can it be about conglomerations of minds? | |
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> | • Redress is more of a function of resources than merit
• Means that civil litigation is only practiced in very large firms, or when small firms agree to help one another on similar cases
o If you limit the number of people willing or able to work on civil litigation cases, injustices will not be redressed and deterrence will shrink | | | Types of Sealing & Redaction | |
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< | • Done so that private information is protected like SS numbers and bank accounts, trade secrets, prevent “embarrassment, oppression,” prevents fishing, won’t chill lawsuits from people afraid of exposure | >
> | • Supposedly, there is a presumption of access to documents related to litigation proceedings in the US. However, the presumption does not extend to discovery documents not filed with the court. 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 exhibits and testimony to the disposition of the case. Settlement agreements can also be sealed. After all is said and done, a gag order may remain in effect, preventing the parties from even speaking of the suit.
• Redaction, protective orders, sealing, gag orders
• Why do we need these things?
o Trade secrets | | | Trade secrets can be dealt with through specific document citation and court review | |
<
< | Redaction is an option for key pieces of data | >
> | o Rule 26(c)(1) of the FRCP “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”
o Hide private information like SS numbers and bank accounts
o prevents fishing | | | Fishing expeditions can be sanctioned with rules already on the books | |
<
< | • Protective orders during discovery, gag orders, sealing of documents after settlement
• Pre-trial discovery v. documents filed with the court
Seattle Times, Goodyear | >
> | Despite the Supreme Court’s orders, many lower courts still require somewhat heightened pleading
Who is really going to read these documents?
• Another litigant or potential litigant, in which case the law generally says you have the right to these documents anyway
• A journalist – you can intervene or go to court to get something unsealed, or mastermind a conspiracy to circumvent the rules (see New York Times)
o So you won’t chill lawsuits from people afraid of exposure
Same as the other side, really private stuff of no legitimate public interest can be sealed upon a sufficient showing
o They want to expedite the process
Is anything really expedited in the process? You deal with one plaintiff, but what about the rest? When you put them all together, is this really faster?
• “The goals underlying the expansion of the discovery process were to facilitate preparation, to avoid surprise at trial, and to promote the resolution of cases on the merits – not to enlarge the public’s access to information.” (Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 447 (1991) cited in http://psychrights.org/States/Alaska/CaseXX/EilLilly/MemorandumFinaJudgmentOrderInjunction.pdf )
• Really? In fact, without public access to information, winning a case on the merits may no long be possible.
Lawsuits take years as it is.
The amount of time spent going over these documents is going to be the same, the only difference will be who goes over them
• What about the idea of the cheapest cost avoider and forcing the other side to parse out its own information?
• Perhaps knowing that the presumption is that documents will be made public, you will limit the amount of material you send. Double-edged sword. Also, if sealing something entirely is difficult to do, and you are forced to redact the documents you send, that may also limit the amount of material you send.
• Can declassify a document by a showing that the need for disclosure outweighs the need for further protection. Need a motion of a party or non-party who can demonstrate a need to know.
• Seattle Times, Goodyear | | | Problems With Sealing
• Lawyers reinvent the wheel
o Prevents further lawsuits, but not based on any notions of justice, but simply because of resources | |
>
> | o Why do the courts not talk about this as a reason for preventing sealing?
• Things are submitted under seal that don’t need to be to avoid the requirement of redaction | | | • Researchers can’t get access
• Journalist access
• Medical information – Eli Lilly example | | | o since when is administrative efficiency a compelling government interest?
o In its recommendations concerning amending the Federal Rules of Civil Procedure, Public Citizen suggests that Rule 5.2e be changed to read “if necessary to protect private information that is not otherwise protected under Rule 5.2(a), and only where the interest in privacy outweighs the public interest in openness, a court may by order in a case…”
o 26(c) and 5.2 protective orders based on “good cause” | |
<
< | • Perhaps knowing that the presumption is that documents will be made public, you will limit the amount of material you send. Double-edged sword. Also, if sealing something entirely is difficult to do, and you are forced to redact the documents you send, that may also limit the amount of material you send. | | | What is the “Press” ?
• Blogger contributions – floating up effect |
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KateVershov-SecondPaper 1 - 05 Apr 2008 - Main.KateVershov
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I'm just sketching out an idea for now.
Steve Jobs said that the Kindle wouldn’t succeed because we live in a society that doesn’t read. He’s right. Not only do we not read, but we don’t expect people to read. Consider that no one in congress really read the Patriot Act. Nor did the reporters. Congressmen routinely have no idea of what is in the bills he or she votes for. Even the interest groups working on them rarely know the parts they’re not concerned with. Discovery documents? A joke. Neither side actually reads everything, much less the judge. Where there is an inability to parse through every possible document to decide whether or not it should be made public, the presumption should be that it is public in the absence of evidence to the contrary.
FOIA recently changed its standard such that if there is a rational basis to reject a request, it shall be requested.
A lawyer should be able to pass on the discovery documents he received to another lawyer working on a similar case.
Do we really want liberal pleading and discovery requirements? What about the idea of the cheapest cost avoider and forcing the other side to parse out its own information?
The Law Should Recognize a Public Interest Beyond Freedom of the Press in Sealing and Unsealing Documents
Intro
• Law is war and law firms are armies
• Is the public interest law firm the only way to combat these wars of attrition? Is it about conglomerations of money? Can it be about conglomerations of minds?
Types of Sealing & Redaction
• Done so that private information is protected like SS numbers and bank accounts, trade secrets, prevent “embarrassment, oppression,” prevents fishing, won’t chill lawsuits from people afraid of exposure
Trade secrets can be dealt with through specific document citation and court review
Redaction is an option for key pieces of data
Fishing expeditions can be sanctioned with rules already on the books
• Protective orders during discovery, gag orders, sealing of documents after settlement
• Pre-trial discovery v. documents filed with the court
Seattle Times, Goodyear
Problems With Sealing
• Lawyers reinvent the wheel
o Prevents further lawsuits, but not based on any notions of justice, but simply because of resources
• Researchers can’t get access
• Journalist access
• Medical information – Eli Lilly example
o FDA is not errorless
• Essentially means that you can only get access by being rich and having time on your hands
• Citizen participation, oversight of government. quotes that it’s the judge’s role to protect the public interest
o Neither party has an interest in not sealing documents or fighting protective orders because one party is paying for the silence and the other is accepting the payment
o “the judge is the primary representative of the public interest in the judicial process” Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999)
o What do we do when judges can no longer perform their roles?
o “heightened First Amendment scrutiny of each request for a protective order would necessitate burdensome evidentiary findings and could lead to time-consuming interlocutory appeals” (Seattle)
o since when is administrative efficiency a compelling government interest?
o In its recommendations concerning amending the Federal Rules of Civil Procedure, Public Citizen suggests that Rule 5.2e be changed to read “if necessary to protect private information that is not otherwise protected under Rule 5.2(a), and only where the interest in privacy outweighs the public interest in openness, a court may by order in a case…”
o 26(c) and 5.2 protective orders based on “good cause”
• Perhaps knowing that the presumption is that documents will be made public, you will limit the amount of material you send. Double-edged sword. Also, if sealing something entirely is difficult to do, and you are forced to redact the documents you send, that may also limit the amount of material you send.
What is the “Press” ?
• Blogger contributions – floating up effect
o Already have issues of blogger immunity
• Crowdsourcing
o DOJ case
o Necessary where other rules of discovery allow for data dumping
-- KateVershov - 05 Apr 2008
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