Confidential Informants in Private Litigation: Balancing Interests in Anonymity and Disclosure
Fordham Journal of Corporate & Financial Law
Ethan D. Wohl
Copyright c 2007 by the authors. Fordham Journal of Corporate & Financial Law is produced
by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/jcfl
CONFIDENTIAL INFORMANTS IN PRIVATE
LITIGATION: BALANCING INTERESTS IN
ANONYMITY AND DISCLOSURE
Ethan D. Wohl∗
Heightened pleading standards and limits on discovery in private
securities fraud actions make confidential informants crucial in many
cases. While courts have widely recognized the importance of
confidential informants and the need to protect them from retaliation,
they have not applied consistent standards as to how informants must be
identified in pleadings, and have failed to take into account substantial
bodies of relevant case law when deciding whether to require the
disclosure of informants’ names in discovery.
This article offers a framework for deciding when and how
confidential informants should be identified, taking into account the
competing interests in anonymity and disclosure. It offers a refined
standard for identifying informants at the pleading stage that focuses on
how the employee came to have the information pleaded, rather than on
the employee’s job title or duties. It also proposes use of in camera
review of witness statements.
At the discovery stage, this article criticizes the use of the attorney
work product doctrine as a basis for protecting informant identities. It
argues that courts should perform a balancing analysis that directly
weighs public policy and privacy interests in favor of informant
anonymity against defendants’ legitimate needs for disclosure. This
approach is supported by numerous cases protecting the identities of
informants and other types of witnesses under Fed. R. Civ. P. 26(c), and
also finds support in the many cases construing the formal privilege
applicable to government informants.
Finally, this article encourages plaintiffs to seek protective orders
for informants early in litigation and briefly discusses protection for
witness interview notes.
∗ Mr. Wohl is an attorney with Labaton Sucharow & Rudoff LLP in New York
City, where he focuses on securities class action litigation.
TABLE OF CONTENTS
INTRODUCTION ........................................................................... 553
THE VALUE OF INFORMANTS AND THE NEED FOR PROTECTION... 554
A. The Importance of Confidential Informants in
Prosecuting Violations of Law ........................................... 554
B. Informants’ Need for Protection .......................................... 556
CONCLUSION .............................................................................. 585
Confidential informants are crucial to detecting and prosecuting
corporate wrongdoing.1 Threats of retaliation and harm to reputation
serve, however, as strong disincentives to corporate employees who
consider stepping forward.2 While individuals who report misconduct
to the government can generally rely on the “informant’s privilege” to
preserve their anonymity if they do not testify, no similar privilege
shields the identities of informants who speak to private plaintiffs or
their counsel. As plaintiffs’ law firms—particularly in securities cases
subject to heightened pleading standards—have hired professional
investigators and significantly expanded their pre- and post-filing
investigations, the proper treatment of such private confidential
informants has become increasingly important. Striking the proper
balance between protecting informants’ identities and fair disclosure to
defendants now has significant consequences for plaintiffs, defendants,
private litigation as a means of enforcing the nation’s laws, the legal
system’s commitment to broad discovery, and informants’ ability to
perform their civic duty without professional martyrdom.
The competing interests in shielding and disclosing informants’
identities arise at three distinct stages of civil litigation:
(1) At the pleading stage, when informants’ statements are used to
establish the legal sufficiency of a claim and defend against a motion to
dismiss, particularly in securities cases subject to the heightened
pleading standards imposed by the Private Securities Litigation Reform
Act of 19953 (“PSLRA”) and Rule 9(b) of the Federal Rules of Civil
(2) During discovery, when defendants’ interrogatories often
specifically request disclosure of plaintiffs’ confidential informants.
(3) On a motion for summary judgment or at trial, when an
informant’s testimony is proffered to a judge or jury for use in
determining the merits of the controversy.
This article analyzes courts’ treatment of confidential informants at
1. See infra Part I.A.
2. See infra Part I.B.
3. Pub. L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 and 18
4. FED. R. CIV. P. 9(b). Unless otherwise indicated, references herein to “Rules”
are to the Federal Rules of Civil Procedure.
each of these three stages. Part I evaluates confidential informants’
value in enforcement actions and informants’ need for anonymity. Parts
II-IV address the pleading, summary judgment/trial, and discovery
At the pleading stage, courts shield informants’ names but require
that plaintiffs provide some identifying information. Slight differences
in courts’ formulations of what information must be disclosed, however,
significantly affect the protection that informants receive. In camera
review of witness statements and supporting documentation provides
one mechanism, proposed infra, for insuring that meritorious securities
fraud cases proceed while protecting defendants from unsupported
At the trial stage, the rule is simply stated: testifying informants
must be named.
Finally, the most difficult issues in balancing the competing
interests in anonymity and disclosure present themselves during the
discovery stage. Securities fraud cases on point have reached
inconsistent results, and have generally failed to consider (or even
acknowledge) the extensive case law governing the informant’s
privilege and the balancing analysis that courts have used in other cases
where public policy and privacy interests support protecting the
identities of informants and other types of witnesses. Collectively, these
cases provide a coherent and nuanced framework for balancing the
competing interests in anonymity and disclosure for confidential
informants in securities fraud and other private litigation.
I. THE VALUE OF INFORMANTS AND THE NEED FOR PROTECTION
A. The Importance of Confidential Informants in
Prosecuting Violations of Law
Informants serve a crucial role in detecting and prosecuting
wrongdoing. They have been described by a former FBI Director as
“the single most important tool in law enforcement,”5 and have been
recognized by the Supreme Court as “a vital part of society’s defensive
arsenal.”6 Even commentators who are critical of informant-related
5. ROBERT M. BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE
AMERICAN JUSTICE SYSTEM 158 (Greenwood P
ublishing Group, Inc. 2002
6. McCray v. Illinois, 386 U.S. 300, 307 (1967).
abuses recognize informants as “a necessary evil.”7 Informants can be
divided into two categories: the “vast majority”8 who trade “information
for money or immunity from prosecution,”9 and citizen informants, who
get “nothing but an assurance of anonymity in return for the information
provided.”10 Corporate employee-informants, also known as
whistleblowers, are generally classified as citizen informants, and
perform what is arguably an especially important role by reporting
wrongdoing that has the potential to inflict widespread harm, and may
otherwise be nearly impossible to detect.11
The importance of informants in securities law enforcement is
illustrated by the Sarbanes-Oxley Act of 200212 (“SOX”) and the events
that led to its enactment. The popular press reported extensively on the
efforts of Sherron Watkins, a mid-level manager at Enron, to report
suspected fraud at the company13—efforts so substantial that she was
cited in SOX’s legislative history.14 In turn, SOX has been described as
“us[ing] whistleblower protection as a key component of enforcement of
federal securities laws.”15 SOX mandated a variety of measures to
support and protect employees who report wrongdoing. First, it required
audit committees to “establish procedures for . . . the confidential,
anonymous submission by employees of the issuer of concerns
regarding questionable accounting or auditing matters.”16 Second, SOX
enacted severe criminal penalties—comparable to those for witness
tampering17—for “interference with the lawful employment or
livelihood” of employees who provide information relating to a federal
offense.18 Finally, SOX established a civil remedy for employees of
public companies who are the subject of retaliation. The statute19
prohibits public companies20 and their employees and agents from
“discriminat[ing]”21 against an employee who provides information or
otherwise assists an investigation by federal investigators, Congress, or
the company itself into violations of (i) criminal mail, wire, bank or
securities fraud statutes,22 (ii) “any rule or regulation of the Securities
and Exchange Commission,”23 or (iii) “any provision of Federal law
relating to fraud against shareholders.”24 It is significant that the statute
also affords the same protections to employees who “file, cause to be
filed, testify, participate in, or otherwise assist in a proceeding”25
relating to the same subjects. By its terms, this provision provides
protection for individuals who participate in, or otherwise assist, private
securities fraud actions.
Informants are especially valuable in private securities litigation.
Because such cases are subject to a heightened pleading standard,26 and
are subject to a discovery stay until the plaintiff has overcome a motion
to dismiss,27 informants are virtually the only means of obtaining
nonpublic evidence of wrongdoing at a company, and are often essential for
avoiding early dismissal of an action.
B. Informants’ Need for Protection
The prevalence of retaliation against informants is widely
acknowledged. SOX is only the most recent statute to prohibit
retaliation against employees who report wrongdoing. By current count,
thirty-five other federal statutes also contain explicit provisions
protecting public and/or private employees from retaliation for reporting
violations of laws, including numerous environmental statutes, laws
governing other aspects of public health and safety, laws encouraging
disclosure of public fraud and waste, and laws regulating the
workplace,28 most notably the Fair Labor Standards Act29 (“FLSA”). In
addition, forty-seven states have enacted statutes protecting
publicsector whistleblowers, and seventeen states also provide some statutory
protection for private sector employees who report illegal conduct.30
In addition to statutory provisions, the Supreme Court has held that
the First Amendment protects public sector employees who criticize
their employers,31 while courts in many states have extended common
law protection to employees who allege retaliation in response to their
efforts to prevent or disclose unlawful practices.32
Summing up the policy underlying all of these protections in an
FLSA case, the Supreme Court observed that “it needs no argument to
show that fear of economic retaliation might often operate to induce
aggrieved employees quietly to accept”33 misconduct by their
Courts have also recognized that the chilling effect of possible
retaliation extends to former employees of a company. In Hodgson v.
Charles Martin Inspectors of Petroleum, Inc.,34 the Fifth Circuit
pointedly rejected the district court’s conclusion that the possibility of
retaliation against former employees in an FLSA enforcement action
was “remote and speculative.”35 The Court noted that (i) employers
“almost invariably require prospective employees to provide the names
of their previous employers as references when applying for a job,”36
(ii) a former employee “may be subjected to retaliation by his new
28. WESTMAN & MODESITT, supra note 15, app. C.
29. 29 U.S.C. §§ 201-219 (2000).
30. WESTMAN & MODESITT, supra note 15, at 67, 77.
31. The leading case is Pickering v. Board of Education, 391 U.S. 563 (1968).
32. WESTMAN & MODESITT, supra note 15, at 131-38.
33. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960).
34. 459 F.2d 303 (5th Cir. 1972).
35. Id. at 306.
36. Id. at 307. Accord Martin v. N.Y.C. Transit Auth., 148 F.R.D. 56, 63
(citing Hodgson, 459 F.2d at 306).
employer if that employer finds out that the employee has in the past”37
cooperated in an enforcement action, and (iii) a former employee “may
find it desirable or necessary to seek reemployment with the
While SOX provides important remedies for informants faced with
retaliation, federal courts have repeatedly recognized that “the most
effective protection from retaliation is the anonymity of the informer.”39
As the Ninth Circuit has observed, informants (or informers40) are far
better served “by concealing their identities than by relying on the
deterrent effect of post hoc remedies under [a statutory] anti-retaliation
provision.”41 Other courts have consistently agreed.42
Simply stated, many employees will step forward only if their
anonymity is assured. Developing appropriate legal standards governing
disclosure of informants’ identities is therefore crucial to obtaining their
assistance in detecting and prosecuting corporate wrongdoing.
39. Wirtz v. Cont’l Fin. & Loan Co. of W. End, 326 F.2d 561, 563-64 (5th Cir.
40. Courts use the terms “informer” and “informant” interchangeably. See 26A
WRIGHT & GRAHAM, supra note 8, § 5702. For consistency, this article uniformly uses
the term “informant.”
41. Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1071 (9th Cir.
2000) (internal citation omitted).
42. See Dole v. Local 1942, Int’l Bd. of Elec. Workers, 870 F.2d 368, 372 (7th Cir.
1989) (“[T]he most effective means of protection, and by derivation the most effective
means of fostering citizen cooperation, is bestowing anonymity on the informant, thus
maintaining the status of the informant’s strategic position and also encouraging others
similarly situated who have not yet offered their assistance.”); Mitchell v. Roma, 265
F.2d 633, 637 (3d Cir. 1959) (“The statutory prohibition against retaliation provides
little comfort to an employee faced with the possibility of subtle pressures by an
employer, which pressures may be so difficult to prove when seeking to enforce the
prohibition.”). Accord NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-40
Respondent’s argument that employers will be deterred from improper intimidation of
employees who provide statements to the NLRB by the possibility of an
[antiretaliatory] charge misses the point of Exemption 7(A); the possibility of deterrence
arising from post hoc disciplinary action is no substitute for a prophylactic rule that
prevents the harm to a pending enforcement proceeding which flows from a witness’
having been intimidated.
II. PROTECTION FOR INFORMANTS AT THE PLEADING STAGE
The issue of how to protect informants first arises at the start of
litigation, when the complaint is drafted. In most types of cases, there is
no basis for requiring a complaint to name confidential informants, or
even to indicate that informants were the source of the complaint’s
allegations. In securities fraud cases, however, the PSLRA requires that
a complaint “state with particularity all facts”43 supporting an allegation
that a statement was misleading. Similarly, Rule 9(b) requires that “the
circumstances constituting fraud or mistake shall be stated with
A. Courts Agree that Informants Need Not Be
Named in a Securities Fraud Complaint
While the phrase “all facts” can be construed to require that all
sources be named, and a few early district court cases so held,45 most
circuit courts have now considered the issue and all have ruled that
informants need not be identified by name. Recognizing that such a
requirement “could deter informants from providing critical information
to investigators in meritorious cases or invite retaliation against them,”
the Second Circuit, in the leading case of Novak v. Kasaks,46 held that
“our reading of the PSLRA rejects any notion that confidential sources
must be named as a general matter.”47 Novak’s approach has been
endorsed by the First,48 Third,49 Fifth,50 Seventh,51 Eighth,52 Ninth53 and
Tenth54 Circuits. In four of these decisions, the circuit courts also
specifically endorsed the Second Circuit’s concern that naming
informants could have a chilling effect.55 The Seventh Circuit, for
example, observed that “[a] bright line rule obliging the plaintiffs to
reveal their sources has the potential to deter informants from exposing
malfeasance. Such a rule might also invite retaliation.”56
B. Courts Disagree About How Informants Should Be Identified
While courts now uniformly agree that a complaint need not
identify confidential informants by name, the circuit courts do not agree
on what type of identifying materials must be supplied. The Second
Circuit has required that confidential sources be “described in the
complaint with sufficient particularity to support the probability that a
person in the position occupied by the source would possess the
information alleged.”57 The Fifth and Seventh Circuits have adopted
this formulation.58 The First Circuit, by contrast, calls for “evaluation,
inter alia, of the level of detail provided by the confidential sources, the
corroborative nature of the other facts alleged (including from other
sources), the coherence and plausibility of the allegations, the number of
sources, the reliability of the sources, and similar indicia.”59 The Third
Circuit has adopted substantially the same criteria as the First Circuit,60
and the Ninth Circuit has also approved use of the First Circuit’s criteria
to “augment” the Second Circuit’s approach in Novak.61 The Tenth
Circuit has adopted the loosest standard, rejecting a “per se rule that a
plaintiff’s complaint must always identify the source.”62 Under the
Tenth Circuit’s approach, source information is more important for
allegations that “are difficult to verify, such as allegations of secret
meetings, the contents of private conversations, or alleged
motivations,”63 than for allegations that “may be objectively
verifiable,”64 such as “specific contract terms, the financial result of a
transaction, or specific prevailing market conditions.”65
How informants are identified is important. Practice teaches that
defendants often devote significant effort to ferreting out informants,
and are frequently successful in their efforts. Executive suites—where
most actionable frauds are perpetrated—are small enough at most public
companies that a job title or description of responsibilities, for the
insiders who matter, will be the equivalent of naming the witness. At
the same time, identifying an informant by job title or responsibilities
poorly serves defendants’ interest in protection against meritless claims.
As one court has noted, job titles may convey little about actual job
duties,66 and formal job duties may say little about whether an employee
would have been privy to senior-level communications evidencing
Of greater relevance is an explanation of how the employee came to
have the information pleaded. Junior employees in unlikely positions
can provide credible (albeit hearsay) evidence of wrongdoing through
friendship with a strategically placed coworker. At the same time, a
court ought to assign less weight to a well-placed senior executive who
has come to particular knowledge through unreliable office gossip.
Thus the better approach is to require specificity as to how the
source came to possess the information pleaded, for example, that the
witness had direct access to relevant communications as a part of her job
responsibilities, or that the witness learned of the relevant facts through
a close relationship with a co-worker who was directed to execute a part
of the scheme.
This analysis is consistent with each of the appeals courts’
formulations cited supra. It fits well with the First, Third, Ninth and
Tenth Circuits’ “totality of the circumstances” approach, and also
conforms to the Second, Fifth and Seventh Circuits’ approach (applying
the light gloss of reading “position” in the sense of “situation” as
opposed to “post of employment”).67
63. Id at 1102.
66. In re Northpoint Commc’ns Group, Inc. Sec. Litig., 221 F. Supp. 2d 1090,
(N.D. Cal. 2002)
67. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1413 (3d
C. In Camera Review of Witness Interview Notes Serves the Interests of
Plaintiffs, Defendants and the Court
Whatever test is applied, a challenge for plaintiffs remains:
determining the appropriate level of detail to use in describing
informants. The degree of particularity required to survive a motion to
dismiss varies from judge to judge, based both on individual
assessments of what “particularity” means and, inevitably, on the
judge’s perception of the merits of the case. A plaintiff who provides
too much detail risks “outing” its informants; a plaintiff who provides
too little risks dismissal of the cause. The same drafting problem applies
to supporting documentation, such as an incriminating email that reflects
which recipient’s copy has been printed.
One solution is for plaintiffs to proffer witness statements and
supporting documentation for in camera review. In camera inspection
of materials is, of course, “well established in the federal courts”68 in
connection with claims of privilege, and has been strongly endorsed in
that context by the Supreme Court.69
Although supplementing a complaint with materials supplied in
camera and ex parte is rare at best,70 this is unsurprising given the norm
of simple notice pleading under Rule 8(a) and the fact that widespread
use of informants in private litigation is a recent development. While
“‘[o]ur adversarial legal system generally does not tolerate ex parte
determinations on the merits of a civil case,’”71 similar concerns are not
implicated at the pleading stage. In addition, criminal law provides a
clear precedent for use of ex parte materials supplied in camera to make
a threshold showing of merit at the commencement of a case: such
68. United States v. Zolin, 491 U.S. 554, 569 (1989).
69. Kerr v. District Court, 426 U.S. 394, 405-06 (1976) (“this Court has long held
the view that in camera review is a highly appropriate and useful means of dealing
with” certain claims of privilege); see also Zolin, 491 U.S. at 568-69 (“this Court has
approved the practice of requiring parties who seek to avoid disclosure of documents to
make the documents available for in camera inspection”).
70. Our research, in fact, found no reported examples.
71. Vining v. Runyon, 99 F.3d 1056, 1057 (11th Cir. 1996) (summary judgment
motion, quoting Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. Unit B Sept.
1981) (alteration in original)). Apparently the sole exception, as noted in Vining, is
when “the submissions involve compelling national security concerns or the statute
granting the cause of action specifically provides for in camera resolution of the
dispute.” Id. at 1057.
materials are routinely submitted to support the filing of a criminal
complaint and issuance of an arrest warrant pursuant to Rules 3 and 4 of
the Federal Rules of Criminal Procedure.72 Under Rule 4(a), an arrest
warrant will issue upon “probable cause to believe that an offense has
been committed and that the defendant committed it . . . .” The issuing
judge, in turn, determines “probable cause” by considering the
“totalityof-the-circumstances,” that is, “all the circumstances set forth in the
[complaint or] affidavit before him, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information . . . .”73 This
determination is ordinarily made on an ex parte basis, and indeed often
relies heavily on information supplied by anonymous informants.74
The First Circuit noted, in its decision approving the use of
anonymous informants in securities cases, the similarity of ex parte
probable cause determinations in criminal cases to the court’s task in
evaluating the sufficiency of a securities fraud complaint.75 The court
described probable cause determinations as a “helpful analogy” to
evaluating the sufficiency of complaints subject to the PSLRA.76
In camera review also serves judicial efficiency. The challenges of
drafting a legally sufficient securities fraud complaint were fairly
described by the Ninth Circuit in Eminence Capital, LLC v. Aspeon,
But how much detail is enough detail? When is an inference of
deliberate recklessness sufficiently strong? There is no bright-line
rule. Sometimes it is easy to tell, but often it is not . . . . In this
technical and demanding corner of the law, the drafting of a
72. The criminal precedent should a fortiori defeat any due process concerns, since
“the guilt or innocence of a criminal defendant may be viewed as ‘qualitatively more
significant’ than the outcome of civil litigation.” Holman v. Cayce, 873 F.2d 944, 946
(6th Cir. 1989).
73. Illinois v. Gates, 462 U.S. 213, 233, 238 (1983). See also United States v.
Pardue, 385 F.3d 101, 107 (1st Cir. 2004) (evaluating “probable cause” for an arrest).
74. See generally, Gates, 462 U.S. 213 (discussing when use of informants’
testimony is permissible); 26A WRIGHT & GRAHAM, supra note 8, § 5714 (discussing
when a criminal defendant is entitled to obtain disclosure of the identity of confidential
informants whose statements had been used to establish probable cause to search or
75. In re Cabletron Sys., Inc., 311 F.3d 11, 11
(1st Cir. 2002)
76. Id. at 30.
77. 316 F.3d 1048
(9th Cir. 2003)
cognizable complaint can be a matter of trial and error.78
The Ninth Circuit cited these challenges as support for its holding
that plaintiffs should be liberally granted leave to replead in securities
fraud cases. No party, however, benefits from drafting and briefing
seriatim amended complaints and motions to dismiss. By allowing
plaintiffs to present all their supporting materials, in camera review
reduces the need for trial-and-error pleading and lets the court evaluate
the sufficiency of a complaint taking into account all support that the
plaintiff has adduced for its allegations.
Finally, the statutory purposes underlying the PSLRA and Rule 9(b)
support use of the in camera device. The PSLRA required detailed
pleading “to curtail the filing of meritless lawsuits.”79 Rule 9(b)
similarly “gives defendants notice of the claims against them, provides
an increased measure of protection for their reputations, and reduces the
number of frivolous suits brought solely to extract settlements.”80 At the
same time, Congress, in enacting the PSLRA, characterized private
securities litigation as “an indispensable tool” for injured investors,81
and courts have cautioned that they “should be sensitive to the fact that
application of [Rule 9(b)] prior to discovery may permit sophisticated
defrauders to successfully conceal the details of their fraud.”82 As these
statements indicate, the PSLRA seeks a balance that excludes
unmeritorious cases while allowing valid claims to proceed. As the
Supreme Court held in evaluating claims of privilege, “it would seem
that an in camera review . . . is a relatively costless and eminently
worthwhile method to insure that the balance . . . is correctly struck.”83
III. PROTECTION FOR INFORMANTS AT THE TRIAL
AND SUMMARY JUDGMENT STAGE
Due process provides a simple rule for disclosure of informants’
identities at trial and on summary judgment: absent “acute national
security concerns,”84 anonymous testimony is never allowed, and
testifying informants’ identities must therefore always be disclosed.85
Whether a witness’ status as an informant need be revealed is not as
clear. One commentator suggests it does, stating, “the fact that he is an
informer must of course be disclosed as a significant aspect of his
credibility.”86 The Fifth Circuit, when confronted with the issue in an
FLSA case, held that the informants did not need to be identified as such
when lists of trial witnesses were exchanged.87
The proper rule should depend on the type of informant. If an
informant receives a tangible benefit, such as money or immunity from
prosecution, that information clearly goes to the informant’s credibility.
No similar justification, however, supports identification of a citizen
informant who receives nothing but an assurance of anonymity.
IV. PROTECTION FOR INFORMANTS AT THE DISCOVERY STAGE
The hardest issues concerning the balance of competing interests in
84. Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986). The court
[i]t is a hallmark of our adversary system that we safeguard party access to the
evidence tendered in support of a requested court judgment. The openness of judicial
proceedings serves to preserve both the appearance and the reality of fairness in the
adjudications of United States courts. It is therefore the firmly held main rule that a
court may not dispose of the merits of a case on the basis of ex parte, in camera
85. See Reich v. Great Lakes Collection Bureau, Inc., 172 F.R.D. 58,
(“The informer’s privilege does not override the government’s
duty to disclose the identity of witnesses who will testify at trial.”); Hansberry v. Father
Flanagan’s Boys’ Home, No. CV-03-3006 (CPS), 2004 WL 3152393, at *4 n.9
(E.D.N.Y. Nov. 28, 2004)
(declining in camera review of affidavit proffered on a
summary judgment motion); Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939, 943
(5th Cir. 1964) (requiring disclosure of all witnesses, including confidential informants,
shortly before trial). Although few decisions squarely address this issue, commentators,
recognizing the fundamental due process dimension of the issue, describe it as a firm
rule. See 26A WRIGHT & GRAHAM, supra note 8, § 5710, at 404-05 (“the government
cannot assert the privilege to refuse to disclose the witnesses it will call at trial”); 2
MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 510:1 (6th ed. 2006) (“[i]f
the government calls the informer at trial, the witness’s identity . . . must of course be
86. 2 GRAHAM, supra note 85, § 510:1.
87. Wirtz v. Robinson & Stephens, Inc., 368 F.2d 114, 116 (5th Cir. 1966).
preserving informants’ anonymity and compelling their disclosure
appear at the discovery stage. Absent a “lucky guess,” withholding an
informant’s identity necessarily denies the defendant the chance to
depose the informant, a result contrary to both the “broad and liberal”
discovery contemplated by the Federal Rules of Civil Procedure,88 and
the principle that “the public has a right to every man’s evidence.”89
When evaluating whether a confidential witness must be identified
during discovery, it is important to note what is and what is not at stake.
Because “[t]rial by surprise is no longer countenanced,”90 informants
who a party intends to call must be identified in response to a proper
interrogatory during discovery.
Whether the identity of confidential informants can be learned
through discovery therefore concerns a limited class of individuals:
those who provided confidential information to the plaintiff or plaintiff’s
counsel, but who will not later be called as witnesses at trial. While
limited, protection of this group of informants is crucial. As noted
supra,91 non-testifying informants are the principal source of non-public
information that plaintiffs rely on to meet the heightened pleading
standards under Rule 9(b) and the PSLRA. In addition, informants often
become willing to testify at trial only after developing a rapport with
counsel and seeing that their testimony may contribute to successful
prosecution of the lawsuit. Thus, even in the case of witnesses who later
agree to testify, plaintiffs are far more likely to persuade a witness to
have an initial conversation if they can represent that the conversation is
likely to be protected (or, better yet, is the subject of a protective order,
as discussed infra).92
Disclosure of confidential witnesses during discovery has been the
subject of reported decisions in a number of securities cases. Until
Judge Michael Baylson’s decision last year in In re Cigna Corp.
Securities Litigation,93 however, these cases evaluated protection of
informants principally on the basis of the attorney work product
doctrine.94 While the public interest in informant confidentiality was
discussed in some decisions, this interest was evaluated mainly in the
context of determining whether the identity of such witnesses
constituted protected attorney work product.95
Outside of the securities context, however, several courts have
focused directly on the public policy and privacy interests at stake.
Their approach is consistent with substantial bodies of case law that
construe the government informant’s privilege, and evaluate the need for
disclosure of the identities of other types of witnesses, in situations
where public policy or privacy concerns militate against the general
policy of full disclosure.
A. Attorney Work Product as a Basis for Protection
Securities cases addressing the protection of confidential informants
on the basis of attorney work product split on whether informants’
identities must be disclosed.
The justification for protecting informant identities as attorney
work product was best articulated in In re MTI Technologies Corp.
Securities Litigation II.96 The court noted that the work product doctrine
generally protects trial preparation materials, and explained that “if the
identity of interviewed witnesses is disclosed, opposing counsel can
infer which witnesses counsel considers important, revealing mental
impressions and trial strategy.”97
While the MTI decision has persuaded one sister California district
court,98 attorney work product has not carried the day elsewhere. In In
re Aetna Inc. Securities Litigation,99 Judge Padova of the Eastern
District of Pennsylvania rejected a claim of work product protection for
informants’ names, on the grounds that such information either was not
work product at all, or, in the alternative “at most has minimal work
product content [and] the need for the information sought outweighs the
minimal work product content that such information may have.”100
Judge Padova’s analysis has been adopted by a number of other district
courts in published opinions.101
Plaintiffs’ lack of success in invoking the work product doctrine is
unsurprising, in light of the fact that the doctrine is premised on the
principle that “it is essential that a lawyer work with a certain degree of
privacy”102 and, by the express language of Rule 26(b)(3), only protects
“mental impressions, conclusions, opinions, or legal theories.”103 This
framework presents no basis for according weight to the public policy in
favor of detecting corporate wrongdoing or to informants’ privacy
In the cases cited supra, the courts have attempted to distinguish
decisions reaching the opposite result by pointing to the number of
individuals “likely to have discoverable information”104 who were
named by the plaintiffs in initial disclosures or in response to
interrogatories. In Aetna, for example, the court noted that the plaintiffs
had named roughly 750 individuals and observed that “[w]ithout the
Court’s intervention, Defendants would be forced to engage in a
timeconsuming and expensive effort to ferret out the veritable needle in the
haystack.”105 In MTI, the court observed that the plaintiffs had listed
Electronic Data Systems Corp. v. Steingraber, No. 4:02 CV 225, 2003 WL 21653405,
at *2 (E.D. Tex. July 9, 2003), a non-securities case.
99. 1999 WL 354527.
100. Id. at *2.
101. In re Theragenics Corp. Sec. Litig., 205 F.R.D. 631
(N.D. Ga. 2002)
; Miller v.
Ventro Corp., No. C01-01287 SBA (EDL), 2004 WL 868202 (N.D. Cal. Apr. 21,
2004); Plumbers & Pipefitters Local 572 Pension Fund v. Cisco Sys., Inc., No.
C0120418JW, 2005 WL 1459555 (N.D. Cal. June
); In re Priceline.com Inc. Sec.
Litig., No. 3:00 CV 01884 (DJS), 2005 WL 1366450 (D. Conn. June 7, 2005). See also
In re IPO Sec. Litig., 220 F.R.D. 30 (S.D.N.Y. 2003) (rejecting claim of attorney work
product and requiring disclosure of investors who had engaged in arm’s-length
purchases of shares from the defendants in initial public offerings).
102. Hickman v. Taylor, 329 U.S. 495, 510 (1947).
103. FED. R. CIV. P. 26(b)(3).
104. FED. R. CIV. P. 26(a)(1)(A).
105. 1999 WL 354527, at *4.
only seventy-one current and former employees, “not even close to the
unmanageable number present in Aetna.”106 Other courts have held
1,200 and “at least 165” names to be too many,107 but “approximately
100” to be reasonable.108 These attempts to draw a line of demarcation
between a witness list that hides the ball to an acceptable degree, and
one that hides the ball too well, are ill-advised. Requiring plaintiffs to
name confidential informants, but conceal them among a long list of
other persons with knowledge, results in an unhappy compromise that
forces defendants to depose third parties who may be only tangentially
involved. Depending on the stakes of the litigation and the defendant’s
resources, the cost of deposing all witnesses may be prohibitive and
therefore constitute a de facto denial of access to the informants. At the
same time, hiding informants among other witnesses may not provide
adequate protection. Depending on how plaintiffs derive their list of
persons with knowledge, even a list of 1,000 names may not effectively
camouflage a senior informant or one with specialized knowledge or job
The better approach, set forth infra, is to develop principled rules
for when informants must be named, and when their names may be
withheld altogether. Securities plaintiffs’ focus on attorney work
product simply neglects the established framework for recognizing the
public policy interests at stake—concerns that have been specifically
acknowledged, as noted supra,109 by a majority of the circuit courts that
have considered pleading-stage disclosure of informants in PSLRA
cases. Outside of the securities context, courts have readily
acknowledged these interests when asked to shield the identities of
informants and other individuals, as discussed infra.
B. The Informant’s Privilege as Precedent for Protection of Private Informants
Although not addressed by any of the district court decisions
discussed supra, the identities of confidential government informants
have been protected since at least the nineteenth century.110 The
Supreme Court first recognized the “informant’s privilege” in its current
form in 1957, holding in Roviaro v. United States111 that informants’
identities were generally not subject to discovery to further “the public
interest in effective law enforcement.”112 The Court explained that
“[t]he privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to law-enforcement
officials and, by preserving their anonymity, encourages them to
perform that obligation.”113 While described as the “informant’s
privilege,” the Court in Roviaro explained that it “is in reality the
Government’s privilege to withhold from disclosure the identity of
persons who furnish information of violations of law to officers charged
with enforcement of that law.”114 Consistent with its purpose and
function, the informant’s privilege is applicable to government
informants in both civil cases and criminal prosecutions.115
Under Roviaro, the privilege is qualified; when an informant’s
identity “is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause, the privilege must give
way.”116 In a criminal case, this standard
calls for balancing the public interest in protecting the flow of
information against the individual’s right to prepare his defense.
Whether a proper balance renders nondisclosure erroneous must
depend on the particular circumstances of each case, taking into
consideration the crime charged, the possible defenses, the possible
significance of the informer’s testimony, and other relevant
psychotherapist-patient, which broadly protect the contents of
communications, the informant’s privilege protects only the identity of
the informant, and shields documents only to the extent they “tend to
reveal the identity of” an informant.118 Thus, witness statements and
similar materials are discoverable—subject to redaction to remove
identifying information, and any other applicable privileges and
limitations on disclosure.119
A substantial body of criminal and civil case law following Roviaro
has fully developed the parameters of the privilege. First, consistent
with the due process principles noted supra, the identity of an informant
who appears as a witness at trial must virtually always be disclosed.120
When an informant is not called to testify, cases following Roviaro
focus principally on the relationship of the informant to the crime
charged or wrongdoing alleged. Ordinarily, disclosure is required in
criminal cases if the informant is the only participant other than the
accused, or is the only witness able to confirm or refute the testimony of
government witnesses.121 Disclosure is generally not required when the
informant is a “mere tipster,” even if also a witness to the crime.122 In
cases that fall between these extremes, courts resort to balancing, as
prescribed in Roviaro.123
Claims of privilege in civil litigation arise most often in wage and
hour cases under the FLSA.124 As in the criminal context, the requesting
party can override the privilege by showing that its need for disclosure
outweighs the government’s interest in confidentiality. This need is
evaluated both by assessing the relationship between the informant and
the wrong alleged, as in criminal cases,125 and also by directly
evaluating the relevancy of the informant’s identity to the facts at issue
in the case.126
C. Extension of the Informant’s Privilege to Private Informants
The clear and well-defined nature of the government informant’s
privilege invites extension to those who assist private plaintiffs, and at a
minimum to plaintiffs acting as “private attorneys general.” While
opponents of private enforcement actions argue they lead to excessive
litigation, interfere with public enforcement, and lack accountability,127
these opponents do not question the significant deterrent effect of private
litigation. Furthermore, none of the arguments against private
enforcement supports depriving plaintiffs of a tool essential to their
ability to detect and gather proof of serious wrongdoing. The asserted
deficiencies of private actions may in fact be ameliorated by
enhancement of plaintiffs’ information-gathering tools.
In addition, the Supreme Court has repeatedly recognized the
important role of private enforcement actions in the case of private
securities fraud actions,128 and Congress, even while imposing limits on
private actions in the PSLRA, stated in its legislative history that:
125. See Suarez v. United States, 582 F.2d 1007, 1012 (5th Cir. 1978) (refusing
disclosure of an informant in a civil tax enforcement case, noting that he was merely a
“marginal observer of the activities” of the taxpayers); Holman v. Cayce, 873 F.2d 944,
947 (6th Cir. 1989) (refusing disclosure in a § 1983 action alleging a wrongful shooting
by an arresting officer where “[t]here was no indication that the informant was an active
participant in the burglary or a witness to it”).
126. Wirtz v. Cont’l Fin. & Loan Co., 326 F.2d 561, 563 (5th Cir. 1964) (“It is
perfectly plain that the names of informers are utterly irrelevant to the issues to be tried
by the trial court.”). Accord Usery v. Ritter, 547 F.2d 528, 531 (10th Cir. 1977) and
Brock v. On Shore Quality Control Specialists, Inc., 811 F.2d 282, 284
(5th Cir. 1987)
127. See Matthew C. Stephenson, Public Regulation of Private Enforcement: The
Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93, 114-20
128. Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 310 (1985)
(“[W]e repeatedly have emphasized that implied private actions provide ‘a most
effective weapon in the enforcement’ of the securities laws and are ‘a necessary
supplement to Commission action.’”) (citing J.I. Case Co. v. Borak, 377 U.S. 426, 432
[p]rivate securities litigation is an indispensable tool with which
defrauded investors can recover their losses without having to rely
upon government action. Such private lawsuits promote public and
global confidence in our capital markets and help to deter
wrongdoing and to guarantee that corporate officers, auditors,
directors, lawyers and others properly perform their jobs.129
Decisions applying the current version of the privilege in civil cases
further illustrate why extending the informant’s privilege is appropriate.
Several courts have reasoned that “[s]ince the guilt or innocence of a
criminal defendant may be viewed as ‘qualitatively more significant’
than the outcome of civil litigation,” the privilege should actually be
stronger and yield less frequently in the civil context.130
While informants in civil litigation are less likely to face threats to
life and limb, courts have recognized that the informant’s privilege
“[a]lso recognizes the subtler forms of retaliation such as blacklisting,
economic duress and social ostracism.”131
The fact that corporate misconduct—particularly, fraud and
antitrust offenses—regularly gives rise to parallel criminal prosecutions
and (private) civil cases further supports extension of the privilege and
demonstrates the lack of any good justification for applying different
rules to governmental and non-governmental informants. It would be
perverse indeed to hold that an indicted corporate officer facing years in
prison and loss of reputation was barred by the privilege from obtaining
the identities of informants located by prosecutors, while her former
129. Joint Explanatory Statement of the Committee of Conference, Conference
Report on Securities Litigation Reform, H.R. REP. NO. 104-369, at 31 (1995) (Conf.
Rep.), reprinted in 1995 U.S.C.C.A.N. 730.
130. Holman v. Cayce, 873 F.2d 944, 946 (6th Cir. 1989). See also Dole v. Local
1942, Int’l Bd. of Elec. Workers, 870 F.2d 368, 372 (7th Cir. 1989) (“In civil cases the
privilege, which limits the right of disclosure usually called for by the Federal Rules of
Civil Procedure, is arguably greater since not all constitutional guarantees which inure
to criminal defendants are similarly available to civil defendants.”) (citations omitted);
Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 478, 483 n.2
(“It would seem rather incongruous for courts to decline to turn over
such information in proceedings where a defendant’s liberty is at stake while providing
such materials in a civil setting where monetary damages alone are involved.”); Matter
of Search of 1638 E. 2nd Street, Tulsa, Okl., 993 F.2d 773, 775
(10th Cir. 1993)
civil cases, “the informer’s privilege is arguably stronger, because the constitutional
guarantees assured to criminal defendants are inapplicable”).
131. Dole, 870 F.2d at 372.
employer, facing the loss of a few basis points of quarterly earnings in a
class action, was entitled to broader discovery of the names of
informants located by plaintiffs’ counsel.
While these considerations underscore the appropriateness of
protecting non-governmental informants in private litigation, the
Supreme Court’s privileges jurisprudence has effectively foreclosed
formal expansion of the informant’s privilege as the means to do so.
Rule 501 of the Federal Rules of Evidence provides that the federal law
of privileges “shall be governed by the principles of the common law as
they may be interpreted by the courts of the United States in the light of
reason and experience.” The Supreme Court has recognized that this
provision “authorizes federal courts to define new privileges.”132 But
the Court has repeatedly confirmed that “the public has a right to every
man’s evidence”133 and that “there is a general duty to give what
testimony one is capable of giving, and that any exceptions which may
exist are distinctly exceptional, being so many derogations from a
positive general rule.”134 Accordingly, the Court has held that
evidentiary privileges “are not lightly created nor expansively
construed,”135 and has declined most invitations to create or expand
Under the leading Supreme Court case addressing the creation of
new privileges, the common law analysis begins with an evaluation of
the interests supporting the privilege.137 While the interests in insuring
the free flow of information from informants are manifest, they are
mitigated by another factor—the need for certainty and predictability in
application of the evidentiary privilege. For many privileges, such as
the psychotherapist-patient privilege at issue in Jaffee, or the spousal
132. Jaffee v. Redmond, 518 U.S. 1, 8 (1996).
133. Id. at 9 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting 8
WIGMORE, supra note 89, § 2192, at 64) (internal quotation marks and ellipsis
134. Id. (quoting Bryan, 339 U.S. at 331) (quoting 8 WIGMORE, supra note 89,
§ 2192, at 64) (internal quotation marks and ellipsis omitted)).
135. United States v. Nixon, 418 U.S. 683, 710 (1974).
136. See Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) (rejecting academic peer
review privilege); United States v. Gillock, 445 U.S. 360 (1980) (rejecting privilege for
“legislative acts”); United States v. Zolin, 491 U.S. 554 (1989) (rejecting claim that in
camera review of materials to determine applicability of crime-fraud exception would
impair attorney-client privilege); Trammel v. United States, 445 U.S. 40 (1980)
(holding that voluntary testimony by spouse was not barred by spousal privilege).
137. Jaffee, 518 U.S. at 11.
privilege recognized in Hawkins v. United States,138 the protected
communications typically occur before litigation has commenced, and
potentially before it is even anticipated. Accordingly, the interests at
stake call for a clear rule to guide members of the public in their
conduct. By contrast, contacts with informants occur in conjunction
with litigation. As a result, the relevant facts can be presented to the
presiding judge for a case-by-case determination with little harm to the
The other principal factor discussed in Jaffee was the treatment of
this privilege amongst the states.139 Because no state had recognized an
informant’s privilege for non-governmental informants, this factor
weighs significantly against the recognition of an expanded privilege.
The same is true of a third factor discussed in Jaffee—whether the
privilege was included among those proposed by the Advisory
Committee on Rules of Evidence in 1969.140 The Advisory Committee
made no provision for protection of non-governmental informants.141
While Supreme Court precedents do not therefore support
expanding the informant’s privilege, other decisions by circuit and
district courts around the country reflect consistent use of a
case-bycase, balancing approach to achieve a similar result.
D. Balancing the Interests in Anonymity and Disclosure
All of the factors mentioned supra, including the value of
confidential informants in enforcement actions, informants’ need for
protection, the important role of private litigation, and the lack of
justification for different standards of protection in government and
private actions, argue in favor of protecting the identities of private
confidential informants. In the absence of a formal privilege, the few
courts outside of the securities arena that have faced demands for the
disclosure of confidential witnesses have provided this protection
through a balancing analysis. Many other courts have adopted the same
138. 358 U.S. 74 (1958).
139. Jaffee, 518 U.S. at 12-13.
140. Id. at 14-15 (citing inclusion of a psychotherapist-patient privilege among the
Advisory Committee’s proposed rules).
141. Proposed Rule 510, rejected by Congress, would have codified the common
law informant’s privilege, but was limited to governmental informants. See Proposed
Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 255 (1972).
approach in other situations where public policy and privacy interests
support the protection of witnesses’ identities. As a number of these
cases illustrate, courts often adopt a balancing analysis in lieu of creating
a new privilege.142
The First Circuit’s decision in Gill v. Gulfstream Park Racing
Ass’n, Inc.143 reflects the proper approach. In Gill, a racehorse owner
sued a racetrack operator for defamation in connection with a private
investigation into wrongdoing by the owner. The plaintiff subpoenaed
documents from a (non-party) trade association that had initiated the
investigation. The trade association opposed the subpoena on the
grounds that the documents contained the names of confidential
informants. The district court held the informant’s privilege
inapplicable, and declined to protect the identities of the informants.144
The First Circuit vacated and remanded. It agreed that the applicable
state-law informant’s privilege did not apply, but held that the “‘[t]he
“good cause” standard in [Fed. R. Civ. P. 26(c)] is a flexible one that
requires an individualized balancing of the many interests that may be
142. E.g., Gill v. Gulfstream Park Racing Ass’n, Inc., 399 F.3d 391
(1st Cir. 2005)
(rejecting privilege for private informant but remanding so that the trial court could
perform a balancing analysis); Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 926-27
(7th Cir. 2004) (rejecting privilege for abortion records but quashing subpoena under
balancing analysis); In re Sealed Case (Med. Records), 381 F.3d 1205, 1211
(noting that “even where an evidentiary privilege is not available, a party may
petition the court for a protective order” and remanding for a determination of whether
such an order was proper); Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163 (E.D.N.Y.
1988) (rejecting scholarly journal peer review privilege but protecting identity of peer
reviewer under balancing analysis), aff’d, 870 F.2d 642 (Fed. Cir. 1989); Virmani v.
Novant Health Inc., 259 F.3d 284, 288 n.4
(4th Cir. 2001)
(rejecting medical peer
review privilege but noting that an order protecting the identities of third parties would
be proper); Seales v. Macomb Co., 226 F.R.D. 572, 578-79 (E.D. Mich. 2005)
(rejecting juvenile records privilege but redacting identifying information based on
balancing analysis); Ross v. Bolton, 106 F.R.D. 22, 23
(finding that no
private investigatory privilege existed but protecting investigatory records based on
balancing analysis). Such balancing differs significantly from the recognition of a new
privilege because, under Rule 26(c), the party seeking protection bears the burden of
persuasion. See infra note 171 and accompanying text. By contrast, in the case of the
informant’s privilege, as with others, “the government is granted the privilege as of
right.” Dole v. Local 1942, Int’l Bd. of Elec. Workers, 870 F.2d 368, 372 (7th Cir.
143. 399 F.3d 391
(1st Cir. 2005)
144. Id. at 393-94.
present in a particular case.’”145 Under Rule 26(c), “[i]n particular,
considerations of the public interest, the need for confidentiality, and
privacy interests are relevant factors to be balanced.”146 By failing to
recognize and evaluate these interests, the First Circuit held that the
district court had abused its discretion.147
A similar approach was adopted by Judge Sporkin in Management
Information Technologies, Inc. v. Alyeska Pipeline Service Co.148 There,
the defendant sought discovery of sources who had allegedly provided
the plaintiff with confidential company documents. Judge Sporkin
discussed at length the risk of retaliation to which whistleblowers are
exposed, and declined to order disclosure of the sources.149 He
described his ruling as “based on the Court’s balancing of the interest of
third parties with the needs of the defendants to defend themselves in the
present proceeding” and noted that the “identities of the confidential
informants . . . are at best marginally relevant to the issues at stake in
In In re Cigna Corp. Securities Litigation,151 Judge Baylson
focused directly on the value of, and need to protect, confidential
informants, and held that while defendants were entitled to a list of all
“persons with relevant knowledge,” including all informants, plaintiffs
were not required to specifically identify their informants from among
the universe of all persons with knowledge.152
Numerous other courts faced with discovery requests for witness
identities have performed a similar balancing of public policy and
privacy interests against defendants’ need for disclosure. Recognizing
the chilling effect of disclosure of witnesses’ identities on
sociallyvaluable speech, courts have protected (i) the identities of doctors who
reported wrongdoing by a pharmaceutical company sales representative
to his employer, based on a concern that the representative might “seek
reprisal against them if he learned their identities;”153 (ii) the identity of
a referee who evaluated a manuscript for a peer reviewed scholarly
journal, based on the societal value of the peer review process;154
(iii) the identities of judges and attorneys who provided adverse
comments to a screening committee evaluating the performance of an
attorney retained to provide services to indigent criminal defendants,
based on the “important societal interest” of an effective evaluation
process and chilling effect of disclosures;155 (iv) the identity of a person
who reported suspected child abuse, based on the societal value of such
disclosures and the chilling effect of revealing the identity of
reporters;156 (v) the identities of doctors and hospitals who reported
adverse reactions to drugs under a voluntary reporting system operated
by the Food and Drug Administration;157 (vi) the identities of doctors
and patients involved in medical peer reviews arising from incidents of
possible medical error;158 and (vii) the identities of academic tenure
committee members and evaluators.159
Courts have also recognized the privacy interests affected by
disclosure—interests possessed by confidential informants, as
recognized in Gill160—and protected these individuals’ identities in a
and advocated in this article.
153. Ramirez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 74
(1st Cir. 2005)
154. Solarex Corp. v. Arco Solar, Inc., 870 F.2d 642, 644 (Fed. Cir. 1989), aff’g 121
F.R.D. 163 (E.D.N.Y. 1988).
155. Mitchell v. Fishbein, 227 F.R.D. 239, 245-47
156. DeLeon v. Putnam Valley Bd. of Educ., 228 F.R.D. 213, 217-21 (S.D.N.Y.
157. In re Eli Lilly & Co., Prozac Prod. Liab. Litig., 142 F.R.D. 454, 457 (S.D. Ind.
158. Virmani v. Novant Health Inc., 259 F.3d 284, 288 n.4
(4th Cir. 2001)
159. Schneider v. Nw. Univ., 151 F.R.D. 319, 324
(N.D. Ill. 1993)
; Black v. N.Y.U.
Med. Ctr., No. 94 CIV. 9074 (SS) (NRB), 1996 WL 294310, at *4 n.9
160. Gill v. Gulfstream Park Racing Ass’n, Inc., 399 F.3d 391, 402-03
range of situations. Based on privacy concerns, courts have protected
(i) abortion records identifying patients in a litigation with the
Department of Justice over the constitutionality of anti-abortion
legislation;161 (ii) the identity of residents of a group home for juveniles
in a civil rights action arising out of improper conduct by employees at
the home;162 and (iii) the names of patients in a nursing home in a suit
alleging overcharging for medications.163
Citing both public interests and privacy rights, courts have also
protected the identities of participants in a study sponsored by the Center
for Disease Control in a products liability action,164 and the names of
members of a private medical society in an action alleging
anticompetitive conduct by the society.165
Protection of private confidential informants also finds support in
cases shielding the investigatory materials of private industry trade
groups that perform regulatory functions. In Ross v. Bolton,166 the court
recognized that the public interest in effective industry regulation by the
National Association of Securities Dealers warranted protection for its
investigative files.167 Similar interests have been recognized, and
similar protections afforded, for investigative files of the New York
Mercantile Exchange168 and the New York City Board of Trade.169
One obvious precedent for protecting the identities of private
informants—the reporter’s privilege—in fact provides little guidance
because the current status of this privilege is unsettled.170
E. Balancing as Applied to Confidential Informants
To obtain a protective order pursuant to Rule 26(c), the moving
party “has the burden of showing that good cause exists for issuance of
that order.”171 A plaintiff seeking protection for its confidential
informants is therefore obligated to establish a threshold need for
protection. Where informants have already supplied information, a
plaintiff should meet its burden by submitting affidavits from the
informants in camera (with suitably redacted copies provided to
opposing counsel), stating their reasons for fearing retaliation. Where a
protective order is sought in anticipation of obtaining information, the
plaintiff should be required to submit an affidavit from an investigator
averring that one or more persons (i) have informed the investigator that
they have information concerning suspected wrongdoing by the
defendant, (ii) are unwilling to provide such information due to a fear of
retaliation, or other injury, if their identity is disclosed, and (iii) would
be willing to provide such information if assured that their identity
would be shielded from disclosure.
As discussed supra,172 Rule 26(c) requires the trial court to
“undertake ‘an individualized balancing of the many interests that may
be present in a particular case.’”173 In performing this balancing,
“[b]road allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c) test.”174
reporters’ confidential sources, the panel held that such a privilege would not apply on
the facts there. Id. at 1150. In separate concurring opinions, two members of the panel
then proceeded to address whether such privilege existed—and in carefully reasoned
opinions reached opposite conclusions. Compare id. at 1153-59 (holding no such
privilege exists); with id. at 1163-78 (holding that such privilege does exist).
171. Gambale v. Deutsche Bank AG, 377 F.3d 133, 142
(2d Cir. 2004)
re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.), cert. denied, 484
U.S. 953 (1987)). Accord Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d
(3d Cir. 1993)
. See also 6 MOORE, supra note 82, § 26.104, at 26-251.
172. See supra, Part IV.D.
173. Diamond Ventures, LLC v. Barreto, 452 F.3d 892, 898
(D.C. Cir. 2006)
(quoting In re Sealed Case (Medical Records), 381 F.3d 1205, 1211
(D.C. Cir. 2004)
(remanding because the district court failed to perform an appropriate balancing
analysis)). Accord Gill v. Gulfstream Park Racing Ass’n, 399 F.3d 391, 400
; Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313
(“Federal courts have superimposed a balancing of interests approach for
Rule 26’s good cause requirement.”).
174. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). Accord
Rivera v. NIBCO, Inc., 384 F.3d 822, 827 (9th Cir. 2004). See also 6 MOORE, supra
In the case of confidential informants, the public’s interest in
disclosure of wrongdoing, together with the witness’ privacy interests,
must be balanced against the defendant’s need to defend the action.
When balancing these interests, it is important to recognize that the harm
to be avoided is the possibility that potential witnesses will refuse to
come forward—i.e., the chilling effect of the fear of possible retaliation
or harm to reputation, and not the likelihood of actual retaliation or other
injury. Even if a witness’ fear of adverse consequences is unfounded,
such fear can nonetheless silence the witness and prevent disclosure of
the wrongdoing. Accordingly, the absence of credible evidence of a
threat should not impede issuance of a protective order based on a
potential witness’ bona fide concerns, as presented to the court by
affidavit. Focusing on the chilling effect, rather than the actual risk of
harm, is consistent with the balancing cases cited supra, none of which
attempted to evaluate whether the fear of harm was well founded.175
The “difficulty of such proof”176 further supports this view.
After the plaintiff has carried the initial burden of demonstrating a
need for protection, the analysis performed in Roviaro provides
welldeveloped guidance for balancing this need against both the defendant’s
interest in effectively opposing the claim and the judicial system’s
policy in favor of liberal discovery.177 Under Roviaro, as discussed
supra,178 courts look to the role of the informant, with an informant who
has played an active role in the wrongdoing far more likely to be
exposed than one who was a “mere tipster.”179 In civil cases involving
corporate wrongdoing, courts also directly evaluate the relevancy of the
information possessed by the informant to the facts at issue in the
Applying these principles, the Fifth Circuit refused to disclose the
identity of an informant in a case brought under the FLSA, Brock v. On
Shore Quality Control Specialists, Inc.181 The court observed that:
note 82, § 26.102, at 26-246.
175. See supra notes 153-59 and 164-65.
176. Dole v. Local 1942, Int’l Bd. of Elec. Workers, 870 F.2d 368, 372 (7th Cir.
177. See supra note 88.
178. See supra notes 121-26 and accompanying text.
179. See supra note 122.
180. See supra note 126.
181. 811 F.2d 282, 284
(5th Cir. 1987)
[t]he issue to be tried in this case concerns the nature of the duties
performed by these individuals, and whether the duties are, as
claimed, administrative. The list of “all persons who have given
information to the Department of Labor” is “utterly irrelevant to the
issues to be tried by the trial court.”182
Similarly, in Usery v. Ritter,183 the Tenth Circuit refused disclosure in
another FLSA case, noting that:
[t]he record contains no showing by defendants of their need, or the
reasons for their need, of the disclosure of the identity of the
informants. The defendants know the job classifications, the pay
rolls, and the type of work done by each employee. The government
has specified individuals, classifications, and types of machines
which it deems pertinent to its case.184
In many cases, private informants are similarly situated to the
government informants in Ritter and On Shore Quality Control. They
have learned of wrongdoing either because they were personally
directed to undertake improper actions, or because fellow employees
informed them of improprieties. As in the FLSA cases cited, the truth is
within the knowledge of the defendants, and there is little legitimate
need to obtain discovery from the informant. There may be situations
where an informant played an active role in wrongdoing or had
conversations with senior managers who are no longer available. In
these situations, disclosure of the informant’s identity may well be
required, but these instances will be the exception.
Thus, in most cases, a balancing analysis under Rule 26(c) will
support shielding the identities of confidential informants from
F. Practice Issues in Protecting Informants’ Identities
While protection of informants has often been litigated in the
context of a Rule 37(a) motion to compel,185 seeking a protective order
under Rule 26(c) or moving to quash or modify a subpoena pursuant to
182. Id. at 284 (citing Wirtz v. Cont’l Fin. & Loan Co., 326 F.2d 561, 563 (5th Cir.
183. 547 F.2d 528 (10th Cir. 1977).
184. Id. at 531.
185. Each of the decisions in the securities cases discussed in Part IV.A supra
involved motions to compel responses to interrogatories.
Rule 45(c)(3)186 provides benefits to plaintiffs beyond the usual postural
advantages. First, a Rule 26(c) motion offers the opportunity to bring
the importance of informants to the court’s attention early in a case and
provides the occasion to allow witness statements to be tendered for in
camera review in advance of a ruling on a motion to dismiss. Second, a
protective order significantly enhances the ability of plaintiffs’
investigators to give comfort to potential informants regarding their risk
of exposure. It also sets the “ground rules” for initial disclosures under
Rule 26(a) and for later discovery proceedings.
A protective order should provide that the plaintiff may withhold
the identity of a witness in discovery if the witness requests anonymity,
provided that the plaintiff discloses the existence of the witness to the
defendant and reasonably identifies (i) the subject matter of the
information provided, and (ii) how the source came to possess the
Because a defendant may choose to depose a non-party who has
served as a confidential informant, even if the informant has not been
identified as such by the plaintiff, the order should also bar defendant’s
counsel from inquiring in depositions as to whether a witness had
voluntarily initiated contact with the plaintiff, or provided information to
the plaintiff or its investigators.
Insuring the flow of information from informants may also require
an order stating that confidentiality agreements between the defendant
and former employees do not bar those employees from providing
information concerning the misconduct at issue, or are void as against
public policy to the extent they purport to bar communications
concerning alleged wrongdoing.187 A detailed discussion of when such
186. The Rule 45 motion to quash “is similar to a motion for a protective order that
discovery not be had under Rule 26(c), and is therefore judged under similar standards.”
9 MOORE, supra note 82, § 45.50, at 45-73 to -74.
187. See In re JDS Uniphase Corp. Sec. Litig., 238 F. Supp. 2d 1127,
. The court held that the defendant’s confidentiality agreements were:
so broad that they cover information that cannot possibly be considered confidential.
To the extent that those agreements preclude former employees from assisting in
investigations of wrongdoing that have nothing to do with trade secrets or other
confidential business information, they conflict with the public policy in favor of
allowing even current employees to assist in securities fraud investigations.
Id. at 1137. See also United States v. Cancer Treatment Ctrs. of Am., 350 F. Supp. 2d
(N.D. Ill. 2004)
(False Claims Act’s “strong policy of protecting
whistleblowers who report fraud against the government” barred counterclaim against
orders are appropriate is beyond the scope of this article.
G. Protection for Witness Interview Notes
As discussed supra, the informant’s privilege extends only to the
identity of the informant, and shields documents only to the extent they
tend to reveal the identity of an informant.188 Given the similarity of the
policies underlying the balancing analysis discussed supra, the
protection afforded under this analysis should not extend further.
While interests in confidentiality cannot justify withholding
suitably redacted witness interview notes, such notes are entitled to
protection as attorney work product, whether recorded by an attorney189
or an investigator.190 Rule 26(b)(3), which codifies the work product
doctrine, ordinarily allows disclosure “upon a showing that the party
seeking discovery has substantial need of the materials in the preparation
of the party’s case and that the party is unable without undue hardship to
obtain the substantial equivalent of the materials by other means.”
While withholding the identity of an informant effectively prevents the
defendant from obtaining the “substantial equivalent” of the statement
by way of deposition,191 notes of witness interviews are “opinion work
product” entitled to heightened protection. In Upjohn Co. v. United
States,192 the Supreme Court held that “[f]orcing an attorney to disclose
notes and memoranda of witnesses’ oral statements is particularly
disfavored because it tends to reveal the attorney’s mental processes.”193
Accordingly, “[n]otes and memoranda of an attorney, or an attorney’s
agent, from a witness interview are opinion work product entitled to
employee for breach of confidentiality agreement).
188. See supra note 118 and accompanying text.
189. FED. R. CIV. P. 26(b)(3).
190. United States v. Nobles, 422 U.S. 225, 238-39 (1975) (“[A]ttorneys often must
rely on the assistance of investigators and other agents in the compilation of materials in
preparation for trial. It is therefore necessary that the [work-product] doctrine protect
material prepared by agents for the attorney as well as those prepared by the attorney
191. See generally 8 WRIGHT, MILLER & MARCUS, supra note 124, § 2026, at 375.
As a general rule, “discovery of work product will be denied if a party can obtain the
information he seeks by deposition.” In re Int’l Sys. and Controls Corp. Sec. Litig., 693
F.2d 1235, 1240 (5th Cir. 1982).
192. 449 U.S. 383 (1981).
193. Id. at 399-400.
PROTECTION FOR INFORMANTS AT THE PLEADING STAGE ........... 559
Securities Fraud Complaint ................................................ 559
Interests of Plaintiffs, Defendants and the Court................ 562
IV. PROTECTION FOR INFORMANTS AT THE DISCOVERY STAGE......... 565
A. Attorney Work Product as a Basis for Protection................ 567
Private Informants .............................................................. 569
D. Balancing the Interests in Anonymity and Disclosure......... 575
E. Balancing as Applied to Confidential Informants................ 580
F. Practice Issues in Protecting Informants' Identities ............. 582
G. Protection for Witness Interview Notes............................... 584 7 . BLOOM, supra note 5, at 158. 8. 26A CHARLES ALAN WRIGHT & KENNETH W. GRAHAM , JR., FEDERAL PRACTICE
AND PROCEDURE § 5702 , at 354 ( 1992 ). 9. Id. at 338 . 10. Id. at 339 . 11. See MARLENE WINFIELD , Whistleblowers as Corporate Safety Net , in
WHISTLEBLOWING-SUBVERSION OR CORPORATE CITIZENSHIP ? 21 - 31 (Gerald Vinten
ed., 1994 ). 12 . Pub . L. No. 107 - 204 , 116 Stat. 745 (codified in scattered sections of 11 , 15, 18 ,
28 and 29 U.S.C.). 13 . See , e.g., Don Van Natta Jr. & Alex Berenson , Enron's Collapse: The
15, 2002 , at A6. 14. S. REP. NO. 107 - 146 ( 2002 ). 15. DANIEL P. WESTMAN & NANCY M. MODESITT , WHISTLEBLOWING: THE LAW OF
RETALIATORY DISCHARGE, at vii (BNA Books 2004 ). 16. SOX § 301 (amending Section 10A of the Securities Exchange Act of 1934 , 15
U.S.C. § 78f(m)(4) ( 2002 )). 43 . 15 U.S.C. § 78u-4(b)(1) ( 2002 ). 44. FED. R. CIV . P. 9 ( b ). 45 . See In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp . 746 , 764 (N.D. Cal .
1997 ); In re Nice Sys., Ltd . Sec. Litig., 135 F. Supp . 2d 551 (D.N .J. 2001 ). 46 . 216 F.3d 300 , 314 (2d Cir.), cert. denied, 531 U.S. 1012 ( 2000 ). 47 . Id. at 313 . 48. In re Cabletron Sys., Inc., 311 F.3d 11 , 28 - 30 ( 1st Cir . 2002 ). 49 . Cal . Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126 , 146 - 47 ( 3d Cir .
2004 ). 50. ABC Arbitrage Plaintiffs Group v. Tchuruk , 291 F.3d 336 , 351 - 52 ( 5th Cir .
2002 ). 51 . Makor Issues & Rights, Ltd. v. Tellabs, Inc., 437 F.3d 588 , 596 ( 7th Cir . 2006 ). 52 . Fla . State Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645 , 667 - 68 (8th
Cir . 2001 ). 53 . In re Daou Sys., Inc . Sec. Litig., 411 F.3d 1006 , 1015 ( 9th Cir . 2005 ). 54 . Adams v. Kinder-Morgan, Inc., 340 F.3d 1083 , 1101 ( 10th Cir . 2003 ). 55 . In re Cabletron Sys., Inc., 311 F.3d 11 , 30 ( 1st Cir . 2002 ); Cal. Pub.
Employees' Ret. Sys. v. Chubb Corp ., 394 F.3d 126 , 147 ( 3d Cir . 2004 ); Tchuruk, 291
F.3d at 352-53; Makor, 437 F.3d at 596. 56. Makor, 437 F.3d at 596 . 57. Novak v. Kasaks , 216 F.3d 300 , 314 ( 2000 ). 58 . Makor , 437 F.3d at 596 (quoting Novak); Tchuruk, 291 F. 3d at 353 (adopting a
substantially identical formulation) . 59. Cabletron, 311 F.3d at 29-30. 60. Chubb, 394 F.3d at 147 . 61. In re Daou Sys., Inc . Sec. Litig., 411 F.3d 1006 , 1015 ( 9th Cir . 2005 ). 62 . Adams v. Kinder-Morgan, Inc., 340 F.3d 1083 , 1101 ( 10th Cir . 2003 ). 78 . Id. at 1052 . 79. H.R. Rep . No. 104 - 369 , at 41 ( 1995 ) (Conf. Rep.), as reprinted in 1995
U.S.C.C. A .N. 730 , 740 . 80. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 , 1418 ( 3d Cir . 1997 ). 81 . Private Securities Litigation Reform Act of 1995 , H.R. Rep . No. 104 - 369 , at 31
( 1995 ) (Conf . Rep.), as reprinted in 1995 U.S. C.C. A .N. 730 . 82. Burlington Coat Factory, 114 F. 3d at 1418 (internal quotations omitted) . See
also 2 JAMES W . MOORE, MOORE'S FEDERAL PRACTICE § 9 . 03 [b] (3d ed. 1997 ). 83 . Kerr v. District Court , 426 U.S. 394 , 405 ( 1976 ). 88 . Pacitti v. Macy's, 193 F.3d 766 , 777 ( 3d Cir . 1999 ). 89 . Jaffee v. Redmond , 518 U.S. 1 , 9 ( 1996 ) (quoting United States v . Bryan , 339
U.S. 323 , 331 ( 1950 ) (quoting 8 JOHN H . WIGMORE, EVIDENCE § 2192 , at 64 (3d ed.
1940 )) (internal quotation marks and ellipsis omitted)) . 90 . Reno Air Racing Ass'n , Inc. v. McCord , 452 F.3d 1126 , 1140 ( 9th Cir . 2006 ).
See also Brown Badgett , Inc. v. Jennings, 842 F.2d 899 , 902 ( 6th Cir . 1988 ) (purpose of
(quoting United States v. Proctor and Gamble & Co., 356 U.S. 677 , 682 ( 1958 ))). 91 . See Part I.A. 92 . See Part IV.F. 93 . No. Civ . A. 02 - 8088 , 2006 WL 263631 (E.D. Pa. Jan. 31 , 2006 ). 94 . See infra cases discussed in Part IV.A. 95 . In re MTI Technologies Corp. Sec. Litig. II, SACV 00-0745 DOC , 2002 WL
32344347, at *5 ( C.D. Cal . June 13, 2002 ); In re Ashworth, Inc. Sec. Litig., 213 F .R.D.
385 , 389 (S.D. Cal . 2002 ); In re Aetna Inc. Sec. Litig., No. CIV. A. MDL 1219 , 1999
WL 354527, at *5 ( E.D. Pa . May 26 , 1999 ); Plumbers & Pipefitters Local 572 Pension
Fund v. Cisco Sys ., Inc., No. C01 -20418JW, 2005 WL 1459555, at *7 ( N.D. Cal . June
21, 2005 ); Miller v . Ventro Corp., No. C01 -01287 SBA (EDL) , 2004 WL 868202, at * 3
(N.D. Cal . Apr. 21 , 2004 ). 96 . 2002 WL 32344347. 97. Id. at *3 . 98 . Ashworth , 213 F.R.D. 385 . MTI 's analysis was also adopted by the court in
106. In re MTI Technologies Corp. Sec. Litig. II, No. SACV 00-0745 DOC , 2002
WL 32344347, at *4 ( C.D. Cal . June 13, 2002 ). 107 . Plumbers & Pipefitters Local 572 Pension Fund v . Cisco Sys., Inc., No. C01 -
20418JW, 2005 WL 1459555 at *5 ( N.D. Cal . June 21, 2005 ); Miller v . Ventro Corp.,
No. C01 -01287 SBA (EDL) , 2004 WL 868202 at *1- 2 ( N.D. Cal . Apr. 21 , 2004 ). 108 . In re Ashworth, Inc. Sec. Litig., 213 F .R.D. 385 , 390 (S.D. Cal . 2002 ). 109 . See supra , Part II.A. 110. See 26A WRIGHT & GRAHAM, supra note 8 , § 5702, at 340- 41 . 111 . 353 U.S. 53 ( 1957 ). 112 . Id. at 59 . 113. Id . 114 . Id . 115 . See Brock v. On Shore Quality Control Specialists , Inc., 811 F.2d 282 , 283 (5th
Cir . 1987 ) (“Although Roviaro was a criminal case, the privilege uniformly has been
Nondisclosure of Identity of Informer , 8 A.L.R. FED . 6 ( 1971 ). 116 . Roviaro , 353 U.S. at 60- 61 . 117 . Id. at 62 . 118. Id. at 60 (“ The scope of the privilege is limited by its underlying purpose .
Sanchez , 988 F.2d 1384 , 1391 ( 5th Cir . 1993 ) (citing Roviaro for this proposition ). 119. See disclosure of witness interview notes, infra notes 188-194 and
accompanying text. 120. See supra notes 84-85 and accompanying text. 121 . See United States v. Martinez , 922 F.2d 914 , 920 - 21 ( 1st Cir . 1991 ) ; see
generally 2 GRAHAM , supra note 85, § 510 :1; 26A WRIGHT & GRAHAM, supra note 8,
§ 5713, at 434-37. 122. Martinez, 922 F.2d at 921 . 123. United States v. Gill , 58 F.3d 1414 , 1421 ( 9th Cir . 1995 ) (Roviaro balancing is
based on “(1) the degree to which the informant was involved in the criminal activity;
(2) how helpful the informant's testimony would be to the defendant; [and] (3) the
government's interest in non-disclosure.”); 26A WRIGHT & GRAHAM, supra note 8,
§ 5713, at 438- 39 . 124 . See 8 CHARLES ALAN WRIGHT , ARTHUR R. MILLER & RICHARD L. MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 2019 , at 301 n. 11 (2d ed. 1994 ) (collecting
cases), and the numerous FLSA cases cited in this article . 145. Id. at 402 (quoting United States v . Microsoft Corp., 165 F.3d 952 , 959 - 60
(D.C. Cir . 1999 )). 146 . Id . 147 . Id. at 403 . 148. 151 F.R.D. 478 ( D.D .C. 1993 ). 149 . Id. at 481- 82 . 150 . Id. at 482- 83 . 151 . 2006 WL 263631 (E.D. Pa. Jan. 31 , 2006 ). 152 . Id. at *3. Notably , Judge Baylson had previous experience with confidential
Aetna Inc. Securities Litigation , No. CIV. A. MDL 1219 , 1999 WL 354527 (E.D. Pa.
May 26 , 1999 ). While Judge Baylson recognized the relevant public interest and
privacy concerns, he did not invoke Rule 26(c) and did not acknowledge the existence
name and address of persons with relevant knowledge . . . .” 2006 WL 263631 , at *3.
161. Nw . Mem. Hosp. v. Ashcroft, 362 F.3d 923 , 926 - 27 ( 7th Cir . 2004 ). 162 . Seales v. Macomb County., 226 F .R.D. 572 , 578 - 79 ( E.D. Mich . 2005 ). 163 . Arenson v. Whitehall Convalescent and Nursing Home , Inc., 161 F .R.D. 355 ,
358 (N.D. Ill . 1995 ). 164 . Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 , 1546 - 47 ( 11th Cir . 1985 ). 165 . Marrese v. Am. Acad. of Orthopedic Surgeons , 726 F.2d 1150 , 1159 - 60 (7th
Cir . 1984 ) (en banc) , rev'd on other grounds , 470 U.S. 373 ( 1985 ). 166 . 106 F.R.D. 22 (S.D.N .Y. 1985 ). 167 . Id. at 24 . 168. Apex Oil Co. v. DiMauro , 110 F.R.D. 490 , 496 -97 (S.D.N .Y. 1985 ). 169. DGM Inv., Inc. v. NY Futures Exch., Inc., 224 F .R.D. 133 , 140 -42 (S.D.N .Y.
2004 ). 170 . See Wendy N. Davis , The Squeeze on the Press, 91 A.B.A. J . 22 , 22 ( 2005 )
recent decision in In re Grand Jury Subpoena , Judith Miller , 438 F. 3d 1141 (D.C. Cir .
2005 ) (as reissued Feb. 3, 2006), illustrates the current uncertainty surrounding the