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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.

The absence of a presumption of confidentiality makes sense for substantive court proceedings such as motions to dismiss, summary judgment motions, and trial. Those are designed to resolve a lawsuit, and that process is historically, and for good reason, public. So the law makes it difficult (though not impossible) to preserve the confidentiality of information that is presented to a court in connection with case-determining events. There is no need to change that existing law.

But the absence of a presumption of confidentiality does not make sense outside that limited context. As parties prepare behind the scenes to make substantive court presentations, they are required to exchange otherwise confidential information about themselves. For an individual litigant, this compelled production of information might include correspondence revealing his or her day-to-day activities, communications, and associations. For entities, it typically includes vast quantities of email revealing the activities and statements of principals and employees, which—because Americans spend so much time at the office—usually encompass matters both professional and personal. The vast majority of that private information will never appear in, much less play an important role in, the substantive court proceedings that actually resolve the case; it is merely exchanged during discovery. Yet, in that essentially extrajudicial setting, the law gives that information no presumptive protection against public disclosure.

However familiar it may be to lawyers, this arrangement is bizarre. Imagine you’re sued and receive the customary broad request for documents. These are your own confidential materials. Perhaps they are family files or communications between you and your partners in a professional venture. Or imagine you’ve been wronged in some way. You file a lawsuit to seek redress, and the defendant demands your private personal or professional files. Either way, you accept and understand that the law requires you to turn the files over to your adversary. But why should you need to specially ask your adversary and the court, fingers crossed, to preserve their preexisting confidentiality with respect to other people?

The Solution

Our proposed solution is this: The Federal Rules of Civil Procedure and parallel state rules should be amended to protect information exchanged during the discovery process as presumptively confidential—that is, permitting the recipient to disclose documents solely to individuals properly involved in the litigation, such as parties, court reporters, experts, and witnesses. This presumption could be overcome, as to particular information or categories of information, only by a case-specific showing that there is a sound justification for eliminating the preexisting confidentiality.

To avoid impinging on the traditional presumption of public access to court proceedings, a party would be permitted to disclose its adversary’s information in court (not to a newspaper, not on a blog) without seeking any kind of advance approval and—in that particular context—without needing to overcome our proposed presumption of confidentiality. Here, in the discrete setting of in-court presentation, current law would be unchanged, and the proponent of confidentiality would still bear the burden of persuasion. This exception—a “license to file”—would certainly be a gap in privacy protection. But it is one that already exists. Our proposal would merely preserve it, not create it. And it is a gap that cannot be closed without at least seriously impinging on the traditional right of public access to court proceedings. Meanwhile, our proposal would close a much broader hole without impinging at all on the traditional right of public access to court proceedings. It is worth repairing that broader gap, even if the smaller one remains.

Our proposal will likely cause some lawyers instinctive discomfort. Lawyers are accustomed to the current arrangement, and they are accustomed to reassuring clients (and themselves) by extolling the “right of public access to court proceedings,” which sounds like a weighty justification. But if the issue is given fresh consideration, without the biases of instinct and habit, it becomes apparent that the current arrangement is defective and that our proposal is sound.

Put simply, why should otherwise private information disclosed during discovery not be accorded presumptive confidentiality? It is not as if the subject matter of every lawsuit has such significant societal importance that a lawsuit’s mere existence should put the litigants in the position of begging for the privacy that they possessed the instant before it was filed. Hundreds of thousands of civil suits are filed each year, many of them with no public importance—a citizen suing a company about a trip and fall or partners suing each other about a business dispute, for example. Certainly, if a dispute goes to trial, it inherently becomes a matter of some greater weight. The courts are an important public forum whose operations—like those of all public institutions—should be reasonably transparent. But very few lawsuits actually go to trial; the vast majority—in the range of 99 percent—are resolved before that. See the Administrative Office of the U.S. Courts, Federal Judicial Caseload Statistics, available at Ultimately, the fact that some lawsuits matter to society at large or proceed to a public trial is not a good reason to dispense, in all cases, with a rational presumption that the discovery record is only for those involved in the litigation and not everyone else.

The Counter-Arguments

Opponents of the proposal might argue that each lawsuit is inherently a matter of public importance because it involves some violation of law and society’s resolution of it. But it is wrong to assume that each civil lawsuit is about actual, or even probable, wrongdoing. In contrast to criminal prosecutions, civil lawsuits can be filed willy-nilly: There is no pre-prosecution “gatekeeper” like the criminal grand jury. Rule 12(b)(6) (reinforced by the seldom-used Rule 11) is a sort of sentry, but it stands behind the gate, not before it. Nor does the rule demand and test the sufficiency of evidence; rather, it is satisfied by allegations. As the Supreme Court held in Ashcroft v. Iqbal, “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 556 U.S. 662, 679 (2009). As a result, the mere existence of a lawsuit—even one that has survived for years—does not tell us that the defendant has committed or even likely committed some transgression, much less of a kind that justifies making the defendant’s private papers presumptively disclosable.

And even if each lawsuit were truly a matter of public significance, why would that justify the current arrangement, which provides no default protection whatsoever for documents and other information involuntarily produced by one side to the other? The 20th century witnessed a dramatic expansion in the scope of permitted discovery—from virtually no document discovery under the civil codes that preceded the Federal Rules of Civil Procedure to discovery of specifically identified documents upon special approval of the court and, finally, to discovery of sweeping categories of documents without the need for advance approval of the court. (This dramatic expansion is well-described in John H. Beisner’s “Discovering a Better Way: The Need for Effective Civil Litigation Reform,” 60 Duke L.J. 547, 554–61 (Dec. 2010).) As a result, many modern lawsuits involve sweeping intrusion into enormous repositories of otherwise private records, with the vast majority of “discovered” documents so immaterial that they are never even submitted to the court, much less admitted into evidence at trial (if one ever occurs).

Citing considerations like these, some federal appellate courts—agreeing with eloquent commentators including Professors Richard Marcus and Arthur Miller—have held that there is no “public right of access” to discovery materials that have not been filed in court. In Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009), for example, the Seventh Circuit held that “there is no constitutional or common-law right of public access to discovery materials exchanged by the parties but not filed with the court.” Such decisions are sound, and they appropriately make it more difficult for a third party—the New York Times, say—to obtain access to a given lawsuit’s discovery record.

But they do not solve the problem. First, the rule they espouse is not uniformly accepted. As recently as 2011, the Ninth Circuit held that, “as a general rule, the general public is permitted access to litigation documents and information produced during discovery.” In re Roman Catholic Archbishop of Portland in Or. v. Various Tort Claimants, 661 F.3d 417, 424 (9th Cir. 2011). And what if your adversary volunteers those records to the local paper? Or an uninvolved lawyer? Or a business competitor? The no-public-right-of-access cases do not prohibit such disclosure; they limit a third party’s ability to extract discovered information, not a party’s right to divulge such information. If you want protection against the latter risk, it still is your burden to obtain it. You must convince a judge to restore the privacy you had before suit was filed. And under the current rules and associated decisions, you will find this a strangely difficult task absent the cooperation of your adversary or an argument that the documents are in some way uniquely deserving of protection. For instance, in Burgess v. Town of Wallingford, the district court refused to restrict public dissemination of deposition transcripts because “case precedent suggests that even when a party admittedly seeks to publicly embarrass his opponent, no protection should issue absent evidence of ‘substantial embarrassment’ or harm.” 2012 U.S. Dist. LEXIS 135781, at *11 (D. Conn. Sept. 21, 2012).

The privacy presumption proposed here is based, of course, on a so-far-unstated premise: namely, that it is important for American society to ensure that its members have a meaningful measure of privacy. It is based on a corollary of that premise as well: that the records in which we record our thoughts and communications—however routine—are entitled to protection. The privacy interest is not absolute, of course; but when policy or judicial decisions are made, it is an interest that should weigh meaningfully against countervailing considerations such as judicial openness. This premise is sound both as a prescriptive matter (i.e., what should be) and as a descriptive matter (i.e., what already is).

As to the former (what should be), it is beyond reasonable dispute that a meaningful degree of privacy is worth fostering and defending in any society, especially one like ours that is animated by a spirit of individual freedom. Samuel Warren and Louis Brandeis’s famous 1890 Harvard Law Review article, “The Right to Privacy,” made that very point and, with it, an early and eloquent case for the importance and legal protection of individual privacy—what the authors called “the right to be let alone.” 4 Harv. L. Rev. 193, 201. The article foreshadowed the Supreme Court’s later privacy decisions—from Griswold v. Connecticut (1965) (addressing prescription and use of birth control) to United States v. Jones (2012) (addressing use of a GPS tracking device by police).

As to the latter (what already is), it is clear that Americans already believe that privacy is an important value, even if they disagree about whether and when it is outweighed by competing values. This belief is deep-rooted. The Oxford Dictionary of Quotations attributes this article’s epigraph—“good fences make good neighbors”—to Robert Frost, who used it in his 1914 poem “Mending Wall.” But in fact it is an old American proverb, which first appeared in print in 1850 if not earlier. And variations of it appeared in print long before 1850, including the humorous “Love thy neighbor, but don’t pull down the hedge,” published in Benjamin Franklin’s Poor Richard’s Almanac. Today, the sentiment that the “good fences” aphorism expresses—that barriers are important in a healthy society—remains vibrant.

Indeed, in various ways however imperfect, the law already reflects that societal consensus. Federal law prohibits opening and reading another person’s mail without authorization, and violations can result in criminal penalties. See 18 U.S.C. § 1702. (This proscription is venerable, having its origin in the pre-independence Post Office Act of 1710, which was implemented by Postmaster General Benjamin Franklin through a variety of privacy-protective directives, including one requiring that mailbags be physically sealed until arrival at the town of destination.) The Electronic Communications Privacy Act prohibits “tapping” or otherwise electronically eavesdropping on an oral, telephone, or electronic communication. See id. § 2511. Intentionally accessing another person’s computer without authorization is subject to a broad and ever-evolving array of prohibitions, some with criminal penalties. See id. § 1030 et seq.

The Supreme Court has also assumed the existence of a constitutional right to “informational privacy.” See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 458 (1976); Whalen v. Roe, 429 U.S. 589, 593–94, 600–01 (1977); Nat’l Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 762 (2011). In each of these cases, the Court addressed the government’s collection of information and found that it satisfied the assumed right to informational privacy in part because it was accompanied by meaningful safeguards against public disclosure—precisely what is missing in civil discovery.

In view of such strong evidence of a societal consensus that privacy is deeply important, how can it be that third parties can gain broad access to your personal files simply because someone brought a potentially baseless civil lawsuit against you? How can it be that your right to seek redress in court for a wrong is conditioned on your willingness to accept that same impairment of your privacy? Given the basic view that Americans should have a meaningful measure of privacy in their day-to-day affairs, this aspect of civil discovery is a strange and disturbing blind spot.

How did this blind spot develop? According to Professor Miller, those involved in the expansion of federal civil discovery during the 20th century were mindful of the importance of protecting privacy, but they believed that provisions in the rules, such as giving litigants the right to seek appropriate protective orders, suffice to protect that interest. Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 447, 466 (Dec. 1991). Yet, giving litigants the right to ask for confidentiality is hardly generous, and the rules actually prejudice such requests. They provide broad access to otherwise confidential documents without specifying their presumptive confidentiality, and courts frequently hold that discovered records are therefore presumptively public unless their owner proves disclosure would cause some concrete and substantial harm. In other words, “mere” invasion of privacy is not enough.

When all is said and done, for the scant reason that a civil suit has been filed, the current procedural regime vitiates privacy as to the vast majority of otherwise private personal and professional information. Is this what the drafters of the rules originally intended? And if so, why did they deem it appropriate? Regardless of the answers to those interesting historical questions, it is now clear that the present situation is defective and ought to be fixed.

Addressing Skeptics

At this point, skeptics will likely be thinking something like this: The courts are public institutions, and, as a matter of sound public policy, it is crucial that their operations not be shielded from public view. This sentiment is certainly sound. But as with most general principles, there are limits. Even now, lawsuits are not like wide-open public parks; they are more like museums, with some areas open to the public and others roped off. Judges need not disclose drafts of their decisions or inter-chambers correspondence underlying those decisions; parties to a lawsuit need not disclose communications with their attorneys; and attorneys need not disclose their own thoughts about the lawsuit. What’s more, the judge has the discretion to impose case-specific confidentiality restrictions on the documentary record and can even bar the public from trials in certain circumstances. In reality, then, legal proceedings are “public” in the limited sense that core aspects of those proceedings are open to all. But there is no inconsistency between that principle and the rule proposed here, which interferes not at all with public access to trials and other substantive judicial proceedings.

The critic may also think: Doesn’t this proposal conflict with the law, which protects freedom of speech and public access to the government? For many decades, however, the civil rules did not permit broad discovery at all, and no one suggested that this long-standing arrangement violated the Constitution or some other federal law or principle. Consequently, after the legislative broadening of civil discovery, it stands to reason that Congress is free to determine the particular contours of that expansion. The Supreme Court confirmed as much in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984), a defamation suit by a religious organization against the Seattle Times. The Court resoundingly rejected a spirited First Amendment challenge and affirmed a confidentiality order barring the newspaper from publicly disclosing information—the identities of donors—it had received from the religious organization during discovery. The Court noted that the discovery rules are a matter of “legislative grace”; that “pretrial depositions and interrogatories are not public components of a civil trial”; that “[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action”; and that protective orders serve a “substantial governmental interest unrelated to the suppression of expression,” namely “the prevention of the abuse that can attend the coerced production of information.” Id. at 32, 33, 35. The Court concluded:

We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of information if gained from other sources, it does not offend the First Amendment.

Id. at 37.

Arguably, under Seattle Times, a confidentiality restriction on discovered information is still subject to some degree of First Amendment scrutiny. After all, the Court did not declare the First Amendment inapplicable; it stated that “judicial limitation on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context” Id. at 34. And the Court upheld the confidentiality restriction in Seattle Times only after approving the case-specific “good cause” analysis that the trial court applied with respect to the particular documents and interests at issue. Id. at 36–37.

So would Seattle Times bar the proposal here, which would give presumptive confidentiality to all discovered documents in a case without a case-specific “good cause” finding by the presiding judge? We think not. The purely private information that the proposal would protect is a far cry from, say, a political petition generated with publicly available resources. To the contrary, it is information transferred to the recipient’s litigation adversary to facilitate trial preparation, not to promote speech more generally. Moreover, with our proposal, the recipient will have elected to receive the information fully aware of the associated restrictions. If this does not eliminate a First Amendment argument in favor of public disclosure of the transferred information under Seattle Times, it certainly greatly weakens the force of that argument. In addition, our proposal by no means precludes evaluation of the First Amendment. That can be argued as soon as a party or nonparty chooses to raise the issue. Until then, the information simply retains its preexisting private character. This makes far more sense than first stripping information of privacy and only later determining whether the deprivation was compelled by the First Amendment.

Skeptics may also argue that the proposal is unwise because discovery materials sometimes contain information that relates to public safety. Without question, public safety is a crucially important interest, but society correctly recognizes instances where privacy outweighs it. For example, health care professionals can’t publish a list of patients infected with HIV even if they believe it would reduce the number of future infections. Under our proposal, such matters still would be balanced by the courts sua sponte or upon request. The only difference would be that the information produced by one party to its adversary would be treated as confidential until the court resolved the issue. Courts can be trusted to recognize the rare circumstances where disclosure is necessary for public safety.

A final anticipated objection: Aren’t counsel and courts already reasonable on this topic? Aren’t confidentiality stipulations routinely negotiated by counsel and accepted by the courts? Yes, most experienced litigators would agree that courts and counsel are usually reasonable. But, for two reasons, this weighs in favor of the proposal, not against it. First, it serves as further confirmation that there already is a societal consensus in favor of privacy, which supports the proposal’s premise. Second, even if the current arrangement usually reaches the right outcome eventually, the process of getting there is time-consuming and expensive. Parties have to negotiate a confidentiality stipulation and then, by filing a motion, persuade the judge to endorse it. There is no guarantee all parties will agree on the basic concept at all; and even when they do, the devil is in the details. Thus, in addition to the burdensome process of securing negotiated confidentiality, there will always be some uncertainty about whether that outcome will actually be reached. However modest that uncertainty, it is unfair. A rule should streamline the process and remove the uncertainty.

The Proposed Rule

What would our rule look like?

First, it would include what is currently the essence of most negotiated confidentiality stipulations—namely, that documents and other information produced during the discovery process are presumptively confidential; may be used only for the litigation; and may be shared with only enumerated categories of need-to-know individuals, including the parties themselves, court reporters, experts, and deposition witnesses.

Second, the new rule would provide that on motion by any party or nonparty (e.g., a media organization), this basic arrangement could be altered by the court for good cause. That would simply flip the current presumption: Whoever seeks to publicly disseminate unfiled discovery materials would have to persuade the judge that, in the particular circumstances, there is a sound reason to abridge the privacy interest. Perhaps certain documents should be made public to advance public safety, because the case is otherwise of substantial public consequence ,or because certain documents are already public. Courts will encounter and give effect to other justifications as well. But absent this sort of rationale, previously private documents will be treated, and respected, as confidential.

Third, the new rule would explicitly clarify that this preemptive restriction on disclosure does not affect or limit disclosure to the court itself. It would state that parties may file documents with the court without seeking advance approval and may use them in open court on a nonconfidential basis. As a consequence, the new rule would not impede the parties’ ability to litigate the case as they see fit, nor would it restrict the public’s access to documents germane to the adjudication of the case.

What would prevent a party from abusing this “license to file” and indiscriminately filing irrelevant private documents? Without question, this could happen in any case, just as any number of inappropriate things can happen in any case. But lawyers are officers of the court bound by ethical and professional obligations. Indiscriminately filing private documents for no reason would risk sanctions. In addition, as to particular documents or categories of documents, the owner could take measures ahead of time—identifying them as particularly sensitive, for instance, and seeking a stipulation or order to avoid a surprise public filing of those documents.


The title of this article—“Mending the Wall”—is, of course, an allusion to Robert Frost’s famous poem “Mending Wall,” which portrays the poet and his neighbor conducting their annual review and repair of the stone wall that separates their properties. The poet questions the need for this work: “Something there is that doesn’t love a wall,” he reflects. But the neighbor is certain that it must be done and remarks, twice, that “good fences make good neighbors.”

The poet and the neighbor are both right. Although the details should always be open to question—is a particular stretch of wall necessary? how high should it be?—walls still are needed to ensure a meaningful zone of privacy for each citizen. Over the last century, the rules of civil procedure have abridged that important principle. With no required showing that the predicate lawsuit has any factual basis, the rules permit broad access to citizens’ confidential records and public dissemination of those records unless their owner persuades the court—with no meaningful help from the law—to restore their confidentiality. This strange and perhaps accidental regime is inconsistent with our traditions.

It does not have to be this way. Our proposal is workable and rationally reconciles the competing values of privacy and public access to court proceedings. In sum, our civil rules have opened a wide gap in an old and important wall, and that gap can and should be mended.