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