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.

Taming Discovery Costs Through Public Access

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. Strict scrutiny of protection orders and seals may be a way to mitigate financial obstacles to justice.

Secrecy in Litigation

Supposedly, there is a presumption of access to documents related to litigation proceedings in the US [1]. However, the presumption does not extend to discovery documents not filed with the court [2]. 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.

Open Access is an Illusion

The “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.”

• I don't think I understand this paragraph's role in the essay. If Judge Weinstein and Professor Miller are correct, then it's not that open access is an illusion, but that it isn't, as you say at the beginning, a presumption of the civil justice system. So either they are wrong, or your essay's premise is wrong. But you don't seem to acknowledge that, or do anything about it.

Secrecy is Costly for Plaintiffs

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.

Who Represents the Public Interest?

Plaintiffs agree to secrecy because they are paid a premium. Neither party 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,” [3] in Seattle Times, the Court argued that &#82

• I don't think I understand this paragraph's role in the essay. If Judge Weinstein and Professor Miller are correct, then it's not that open access is an illusion, but that it isn't, as you say at the beginning, a presumption of the civil justice system. So either they are wrong, or your essay's premise is wrong. But you don't seem to acknowledge that, or do anything about it.

20;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] 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 as well.

• And that concerns only one specific part of the problem. How could the system possibly impose on any party, particularly defendant parties who do not choose to be in the forum, compulsory publication of their private materials solely on the showing by someone else that it might lead to relevant evidence concerning disputes that might exist and might be justiciable? That would be fundamentally unfair, surely. You're not engaging in analysis here, just rhetoric that ignores what could and should be said on the other side.

New Arguments for Open Access

Where all abdicate any responsibility to the public, the public should at least be given the chance to fend for itself. When the courts don’t want to get their hands dirty in discovery and sweep the results under the rug, the justice system ceases to be about truth finding. It becomes just a war of attrition. It can be argued that unnecessary secrecy in litigation is as much a violation of equal protection as the 1st Amendment. Not exercising due discretion, judges are essentially shifting costs onto the public and poor plaintiffs.

• But civil litigation is not a public concern unless public entities are involved. You haven't dealt with that point; you just keep on ignoring it.

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] However, when the exception becomes the rule, perhaps it’s time to reconsider if there is any “integrity” left in the process worth protecting.

• But the rule you are talking about doesn't exist. You knew that in your second section, and you just keep dodging its obvious implications.

Rampant discovery abuse has not improved since 1984 despite revisions to the FRCP. A new standard for pre-trial protection orders may help reverse this trend. Prior to the FRCP, parties could only discover documents that would be admissible at trial. Documents should be presumptively public subject to demonstration that the disclosure of particular documents would cause specific harms or that the documents would be inadmissible at trial. This way, public hazards would not be concealed and fishing expeditions for unrelated suits would be prevented.

• But what has evidentiary admissibility got to do with whether a party has a continuing right of privacy? And how could one judge admissibility without the surrounding evidentiary context?

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.

[2] Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)

[3] First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999)

[4] Seattle Times, 467 U.S. at 36

[5] Seattle Times, 476 U.S. at 35

-- KateVershov - 05 Apr 2008

• Kate, the most puzzling thing here is your absolute refusal to acknowledge the existence of any entitlement to privacy about anything. You seem determined to treat civil discovery as though it were in isolation from everything else in the legal system. But every trade secret, private financial data, medical record, transactional identification, and every other piece of information that any privacy law applies to would be forcibly published once someone files a complaint, no matter how specious, and commences discovery. The problem with your analysis isn't in details: it's fundamental. Maybe you have an answer to why it is that no one's right to privacy should ever be entitled to any protection, or maybe you are going to modify this "default public" discovery rule to be a "default private, but" rule. Whatever you're going to do, you can't simply leave the other side of the argument unarticulated, unanalyzed, and unacknowledged.

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