Information for the Common Good in Mass Torts

43 Pages Posted: 4 Nov 2020 Last revised: 19 Mar 2021

Date Written: October 2, 2020


In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought to prioritize litigation’s information-production role over competing litigant-autonomy values in lawsuits like the Opiate litigation that have a significant bearing on public health and safety. To aid courts in doing so, we propose a nuanced approach to confidentiality that takes into consideration the interests of different actors and stakeholders with different legal claims, recognizing that doing so will undermine the system’s commitment to trans-substantivity in practice.

Keywords: transparency, public health, discovery, Rule 26(c), Rule 5(d), Opiates, tobacco, torts, class action, MDL, attorneys general, opioid

JEL Classification: K13, K41

Suggested Citation

Lahav, Alexandra D. and Burch, Elizabeth Chamblee, Information for the Common Good in Mass Torts (October 2, 2020). DePaul Law Review, Forthcoming, University of Georgia School of Law Legal Studies Research Paper No. 2020-31, Available at SSRN:

Alexandra D. Lahav

Cornell Law School ( email )

Elizabeth Chamblee Burch (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

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