We put more and more private information about our personal and professional lives into public view. We post on social media sites and blog. Yet, paradoxically, we claim a fierce desire to safeguard our privacy. Ask any teenager whether she believes that by incessantly revealing the details of her daily life, thoughts, and emotions, she has thereby forfeited her privacy rights. She will look at you as though you are mad. Should the law be amended to protect against the consequences of such self-disclosure?
In “Mending the Wall: A Call for a Presumption of Privacy in the Federal Civil Rules,” the authors, David Clancy, Christopher Lisy, and Brendan Brodeur, advocate an amendment to the federal and state rules of civil procedure to protect that expectation of privacy by prohibiting public disclosure of information obtained during the course of discovery.
Is the problem identified by the authors a real one?
Is the remedy the authors propose the optimal way to provide protection where needed?
I believe the answer to both questions is “no.”
The authors’ premise that discovery in civil cases can yield private personal and professional information is indisputable. The additional premise that truly private information is worthy of protection outside the litigation in which it is produced is also indisputable. It does not follow, however, that all documents produced in discovery should remain presumptively confidential. Our judicial system is designed to be an open one, and filings under seal are not readily countenanced. Yet, the proposed amendment would effectively place all information produced in discovery under seal.
The overwhelming amount of information produced in most cases—even those that involve sensitive issues—is hardly confidential or newsworthy. If individual litigants are uneasy that their documents will end up on the front pages of the New York Times in the run-of-the-mill case, any such fear is aberrant. The real concern is that the cost of reviewing all the electronically stored documents produced in discovery is not productive or cost effective. Most documents produced in discovery never see the light of day even as an exhibit to a motion, let alone as evidence at trial. Thus, the rule the authors urge—a presumption that all information is confidential unless otherwise agreed by the parties or ordered by the court—is a far broader cure than the malady warrants.
The authors’ proposed new rule is also premised on the belief that litigants and courts are reluctant to enter into confidentiality agreements and orders. That has not been the experience of this judge. I have found that most lawyers and judges view entry of a confidentiality order as a routine matter. Indeed, many courts have local rules or discovery guidelines with approved form confidentiality agreements. Of course, there are disputes regarding the legitimacy of a party’s designation of a particular document as “confidential” under such an agreement. It is rare, however, to have a dispute about whether a confidential agreement is appropriate in the first instance.
The existing rules of civil procedure provide ample recourse to a refusal to enter into a confidentiality agreement by one party. The issue may be raised in a Rule 26(f) discovery conference. If no agreement is reached, the issue should be raised when the judge holds a Rule 16(b) scheduling conference. If the request for a confidentiality order is well reasoned and not overreaching, why would a court refuse to enter an order contemplated by existing rules and practice?
Should a concern for confidentiality arise in conjunction with a particular discovery request and response, a party can avail itself of Rule 26(c). It allows the court to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The authors never explain why this existing rule is inadequate to protect confidential information produced during discovery against unjustifiable disclosure.
Finally, an amendment to the Federal Rules of Civil Procedure and those of all the states—the remedy suggested by the authors—is the least likely means to achieve their goal quickly. Amending the Federal Rules of Civil Procedure is a time-consuming and cumbersome process. An amendment can be proposed by the Civil Rules Advisory Committee only after an extensive public comment period, including public hearings. Then, it must be approved by the Standing Committee for Rules of Practice and Procedure, the Judicial Conference, the Supreme Court, and, finally, Congress. To navigate this process takes a minimum of three years. If national uniformity is the goal the authors seek, the civil procedure rules of every state would require a similar amendment.
The authors have articulated a problem of concern: the creation and preservation of data—both confidential and of little consequence—in ever-increasing quantity. Time alone no longer erases all the data stored on some cloud whose working most of us little comprehend. It makes us all understandably uneasy. But the solution proposed does not mollify that unease, while a sufficient remedy already exists in the rules and common practice.
*The opinions expressed in this article are the author’s own.