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41 Litig. 34 (2014-2015)
Mending the Wall: A Call for Presumption of Privacy in the Federal Civil Rules

handle is hein.journals/laba41 and id is 35 raw text is: Mending the Wall A Call for a Presumption of Privacy in the Federal Civil Rules DAVID S. CLANCY, CHRISTOPHER A. LISY, AND BRENDAN J. BRODEUR The authors are with Skadden, Arps, Slate, Meagher & Flom LLP, Boston. 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 dif- ficult. 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 be- hind the scenes to make substantive court presentations, they are required to exchange otherwise confidential information about themselves. For an individual litigant, this compelled produc- tion 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 reveal- ing 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 pro- ceedings 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 re- quest 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, 34 LITIGATION

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