September 01, 2014

Mending the Wall: A Call for a Presumption of Privacy in the Federal Civil Rules

The authors argue that all documents produced in civil discovery should be presumptively confidential.

“Good fences make good neighbors.”

—Robert Frost, “Mending Wall”

The purpose of this article is to identify a problem and suggest a solution. The problem is this: As things now stand, documents and other information produced by one side to the other in litigation are not accorded any presumption of confidentiality. Absent agreement or a court order to the contrary, the recipient of an adversary’s otherwise private information can give it to anyone—the New York Times or a business competitor, say—or even publish it in a public forum or on a website. Unless both sides agree, obtaining an order barring such disclosure is difficult. In this context, the law gives little weight to “mere” privacy and demands more “compelling” justifications—for example, that the information is a trade secret.

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