Secrecy by Stipulation

Abstract

GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.

But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree to sidestep Rule 26(c)’s “good cause” requirement and that judges, although formally duty-bound to protect the public interest, uncritically acquiesce to their demands. Worried about judicial rubber-stamping, some, in fact, have spent decades pushing to tighten Rule 26(c)’s standards—while others have, just as vigorously, opposed these efforts, insisting that the status quo works well enough.

This debate has raged since the late 1980s. But until now, it’s mostly run aground on the shoals of basic, but unanswered, factual questions: Are stipulated protective orders really de rigueur? Are they becoming more prevalent? And are joint motions for protective orders actually meticulously scrutinized?

Using state-of-the-art machine-learning techniques, this Article analyzes an original dataset of over 2.2 million federal cases to answer these persistent and profoundly important questions. Along the way, we find that stipulated protective orders are surprisingly prevalent. Grant rates for stipulated protective orders are sky high. And even though many insist that judges are scrupulous in the entry of such orders, over our entire study period, a majority of federal judges never ever rejected a joint protective order request.

We offer the first comprehensive accounting of stipulated protective orders in federal litigation. In so doing, we aim not only to revitalize—and discipline—the perennial and consequential debate surrounding Rule 26(c). We also offer a fortified empirical foundation on which to ground inquiry into broader questions, including the role of transparency and privacy in a system ostensibly committed to “open courts,” tort law’s vital information-forcing function, adversarialism as a procedural cornerstone of American litigation, and trial-court discretion and fidelity to higher law.

Keywords: Protective Orders, Rule 26, Rule 26(c), civil procedure, stipulated orders, secrecy, transparency, NDAs