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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?