Contracting for Confidential Discovery
53 U.C. Davis L. Rev. 1249 (2020)
64 Pages Posted: 9 Jun 2020 Last revised: 24 Jun 2020
Date Written: 2020
One way that courts have adapted to the age of the internet is to provide nearly instant online access to their dockets. But many important filings remain shielded from public view as courts regularly issue stipulated protective orders at the request of the parties. And, while the costs and benefits of confidential discovery have been extensively discussed in the academic literature, several important contextual developments — including the continuing growth of electronically stored information — prompt a reexamination. Additionally, easily searchable federal dockets now provide a window into what is happening in actual practice.
Taking up this task, Contracting for Confidential Discovery examines how federal trial courts dealt with 100 proposed stipulated protective orders in January 2018. A key finding is that courts are regularly entering orders overly favoring secrecy in a manner that is inconsistent with the governing jurisprudence and consensus theory. The Article proposes several doctrinal and policy interventions to rectify the most problematic common mistakes: (1) an overreliance on boilerplate language and (2) the conflation of the relatively low standard for keeping unfiled discovery confidential with the much higher bar for filing materials under seal.
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