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Court-Ordered Confidentiality in Discovery

18 Pages Posted: 21 Feb 2006 Last revised: 1 Jul 2008

Howard M. Erichson

Fordham University School of Law

Abstract

This Article offers support for the argument that protective orders for discovery confidentiality should be granted upon a relatively light showing of good cause. Part I offers reasons why, in the vast majority of cases, courts should readily grant motions for protective orders with respect to discovery confidentiality as long as the movant can articulate some legitimate need for the information to be kept confidential. Looking at modern United States discovery from a comparative and historical perspective, broad and powerful party-controlled discovery can only be justified as a means of finding information for the resolution of the dispute, not as a public information tool. Part II explains why some showing of good cause nonetheless should be required, even if the parties themselves agree to the confidentiality protections.

Keywords: protective order, confidentiality, discovery, secrecy

JEL Classification: K41

Suggested Citation

Erichson, Howard M., Court-Ordered Confidentiality in Discovery. Chicago-Kent Law Review, Vol. 81, p. 357, 2006; Seton Hall Public Law Research Paper No. 44. Available at SSRN: https://ssrn.com/abstract=883715

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8233 (Phone)

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