Proportionality, Pretrial Confidentiality, and Discovery Sharing

Washington and Lee Law Review, Aug 2018

Dustin B. Benham

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Proportionality, Pretrial Confidentiality, and Discovery Sharing

Proportionality, Pretrial Confide ntiality, and Discover y Sharing Dustin B. Benham 0 1 2 0 Thi s Article is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 1 Dustin B. Benham, Proportionality, Pretrial Confidentiality, and Discovery Sharing, 71 Wash. & Lee L 2 Texas Tech University School of Law , USA - Proportionality, Pretrial Confidentiality, and Discovery Sharing Dustin B. Benham I. Introduction ...................................................................2182 1. Upfront Sharing Provisions...............................2202 A. History .....................................................................2214 B. Current Proposal .....................................................2219 IV. A Framework for Discovery Sharing.............................2225 A. Upfront Sharing Provisions Versus Later Modification .............................................................2227  Associate Professor of Law, Texas Tech University School of Law. I would like to thank Richard Marcus for his thoughtful comments on an earlier draft of this Article. Thanks also to Meryl Benham, Bryan Camp, Elizabeth Caulfield, Rory Ryan, and Natalie Tarenko for their contributions to this work. I am especially thankful to my research assistant Nicole Sears, J.D. Candidate 2015, Texas Tech University School of Law, for her excellent research and citation work. I. Introduction Courts around the country enter pretrial confidentiality orders every day.1 Commentators and courts have long debated the impact of court confidentiality on public safety.2 This debate often centers on whether public harms flow from court orders that limit the audience for discovery information that those same courts order parties to produce.3 But an underexplored aspect of pretrial confidentiality is the cost it imposes on the litigation system. Confidentiality orders that prevent litigants in similar cases from sharing information make litigation less efficient and less effective.4 Courts are split on if, when, and how 1. See FED. R. CIV. P. 26(c)(1)(g) (allowing protective orders to limit access to trade secrets and other proprietary information); see also, e.g., Laurie Kratky Dore, Secrecy by Consent: The Use of Limits of Confidentiality in Pursuit of Settlement, 74 NOTRE DAME L. REV. 283, 285 (1999) (noting the frequent use of confidentiality in civil litigation). 2. Compare Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L. REV. 1, 6–9 (1983) (chronicling the intrusive nature of civil discovery and observing that parties have legitimate reasons to keep discovery information private), and Richard P. Campbell, The Protective Order in Products Liability Litigation: Safeguard or Misnomer?, 31 B.C. L. REV. 771, 772–75 (1990) (contending that privacy interests should trump public and party interests broader dissemination of pretrial discovery), with Dore, supra note 1, at 296 (noting the view that courts are “publicly funded” and “accountable to and guardians of a broader public interest”), Richard Zitrin, The Judicial Function: Justice Between the Parties, or a Broader Public Interest?, 32 HOFSTRA L. REV. 1565, 1567 (2004) (contending that private dispute resolution is just one function of courts; they also have a significant public function), Joseph F. Anderson, Jr., Secrecy in the Courts: At the Tipping Point?, 53 VILL. L. REV. 811, 813 (2008) (noting that “[t]he debate over ‘court-ordered’ secrecy has festered for several decades” and concluding that more court transparency is needed), and Sunshine in Litigation Act of 2009: Hearing on H.R. 1508 Before the Subcomm. on Commercial & Admin. Law Comm. on the Judiciary, 111th Cong. 1 (2009) (testimony of Leslie A. Bailey, Staff Att’y, Public Justice) (“In short, through protective orders, secret settlements, and sealed court records, the public courts are being used by private parties to hide smoking-gun evidence of wrongdoing.”). 3. See, e.g., Anderson, supra note 2, at 811–12 (recounting a fatal accident stemming from allegedly faulty tires where information about the defect, potentially available from over two hundred related lawsuits, was kept from victims by confidentiality orders). 4. See, e.g., Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982) (determining that to deny sharing between litigants “would be tantamount to holding that each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel”). these orders should allow litigants to share pretrial discovery information.5 This Article examines the systemic harms of confidentiality orders and contends that courts should exercise their discretion to allow information sharing between similar cases absent substantial evidence of countervailing factors. It is the first significant piece of legal scholarship to examine court confidentiality and discovery sharing in light of the recent and contentious proposed amendments to the Federal Rules of Civil Procedure, approved in May 2014 by the Federal Judicial Conference Standing Committee.6 The current General Motors defective-ignition crisis provides a contemporary example of the potential systemic impact of restrictive confidentiality orders. While many rightly focus on the potential impact of court confidentiality on public safety,7 court orders also likely prevented some of the plaintiffs in virtually identical lawsuits from sharing discovery information with each other. By “silo-ing” discovery information in this way, G.M. (like many other litigants engaged in national-scale litigation) forced 5. Compare Long v. TRW Vehicle Safety Sys., Inc., No. CV-09-2209-PHXDGC, 2010 WL 1740831, at *1 (D. Ariz. Apr. 29, 2010) (denying request for sharing provision in protective order out of preference for later intervention and modification), and Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486, 490 (Fla. Dist. Ct. App. 2011) (denying request for discovery-sharing provision based on conflict with state trade-secret statute), with Garcia v. Peeples, 734 S.W.2d 343, 346 (Tex. 1987) (mandating discovery-sharing provision in protective order absent showing of prejudice to producing party), and Raymond Handling Concepts Corp. v. Super. Ct., 45 Cal. Rptr. 2d 885, 888 (Cal. Ct. App. 1995) (allowing trial court discretion to include discovery-sharing provision). 6. See ADVISORY COMM. ON CIVIL RULES, REPORT TO THE STANDING COMMITTEE 91–94 (May 2, 2014), http://www.uscourts.gov/uscourts/RulesAnd Policies/rules/Agenda%20Books/Standing/ST2014-05.pdf [hereinafter COMMITTEE REPORT] (enumerating proposed amendments to the Federal Rules of Civil Procedure); Tera E. Brostoff, Changes to E-Discovery Approved; “It Should Work,” Professor Predicts, 82 U.S.L.W. 1918 (June 2, 2014) (discussing the rationale behind the amendments to Rule 37 and predicting the effectiveness of the new rule). 7. See, e.g., Bill Vlasic, Inquiry by G.M. Is Said to Focus on Its Lawyers, N.Y. TIMES, May 18, 2014, at A1 (“G.M.’s unwillingness to share information it had about defective switches with regulators most likely cost lives in accidents.”). its opponents to wastefully reinvent the wheel when conducting discovery in each case.8 Indeed, plaintiffs with identical discovery requests in two virtually identical cases might be forced to litigate their entitlement to the same information anew in both cases. If courts in similar cases simply allowed parties to share discovery, the twin lawsuits would consume fewer court and party resources.9 Multiplied over many cases and many document requests, court orders that prevent sharing create a significant drag on the system. Based on these efficiency concerns, most commentators that have considered the issue support some form of discovery sharing.10 Surprisingly, however, courts are still split on the propriety of protective-order provisions that allow information sharing between similar cases.11 Some courts have mandated discovery sharing, holding that courts abuse their discretion by issuing orders that prevent the practice.12 At the other end of the spectrum, some courts have recently held that discovery-sharing provisions are forbidden in many cases.13 Indeed, federal and 8. Cf., e.g., Garcia, 734 S.W.2d at 346–48 (finding that nonsharing protective orders, in the products liability context, create inefficiency by forcing parties to conduct discovery without the benefit of information from previous cases). 9. See, e.g., id. at 347 (“In addition to making discovery more truthful, shared discovery makes the system itself more efficient.”). 10. See, e.g., Richard L. Marcus, The Discovery Confidentiality Controversy, 1991 U. ILL. L. REV. 457, 464–66, 466 n.61, 495–96 (cataloguing pro-sharing action by the legislatures and an ABA commission while endorsing discovery sharing); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 498–99 (1991) (favoring discovery sharing when it actually promotes efficiency); Dore, supra note 1, at 363–65 (same). 11. See, e.g., cases cited supra note 5 (listing numerous cases in which courts have come to differing conclusions concerning protective orders). 12. See Garcia v. Peeples, 734 S.W.2d 343, 346–48 (Tex. 1987) (“The facts of this case do not justify the blanket protective order, and in rendering an overbroad order, the trial court abused its discretion.”). 13. See Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486, 490 (Fla. Dist. Ct. App. 2011) (denying a motion for a protective order on the grounds that it would allow dissemination of trade secrets in violation of a state statute); cf. Long v. TRW Vehicle Safety Sys., Inc., No. CV-09-2209-PHX-DGC, 2010 WL 1740831, at *1 (D. Ariz. Apr. 29, 2010) (finding that the presumption of public access “is trumped where the defendant establishes good cause to protect state courts across the country, applying similar protective-order rules, are increasingly fractured on the issue. The dispute about discovery sharing is particularly curious in the face of recent and ongoing procedural reform designed to make pretrial litigation more efficient. In late May 2014, the Federal Judicial Conference Standing Committee on the Rules of Practice and Procedure approved significant revisions to Federal Rule of Civil Procedure 26 to reduce the systemic burdens of pretrial discovery.14 These proposed amendments are almost certain to become law in December 2015. The centerpiece of the changes would highlight the concept of “proportionality” as the scope of discovery.15 Proportionality is the notion that resources expended on discovery in a given case should correlate with the benefits of conducting the discovery.16 Notably, the proposed amendments are silent about discovery sharing.17 But sharing works in tandem with proportionality by allowing parties to more accurately tailor discovery in cases where the parties are informed by shared information. Indeed, the crux of the amendments’ letter and spirit—minimizing the undue burdens of pretrial discovery18— discovery materials”). 14. See COMMITTEE REPORT, supra note 6, at 63–72 (detailing proposed amendments to the Federal Rules of Civil Procedure); Brostoff, supra note 6 (describing the rationale behind adopting certain amendments to the rules: “focusing on the goals of cooperation, proportionality and early case management”). 15. See COMMITTEE REPORT, supra note 6, at 65 (incorporating proportionality as Rule 26(b)(1) scope of discovery). 16. See FED. R. CIV. P. 26(b)(2)(C)(iii) (limiting discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues”); see also 8A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2036 (3d ed. 2010) (discussing the rationale behind Rule 26(b)(2)(C)’s prohibition on “disproportionate discovery demands”); Richard Marcus, Procedural Postcard from America, 1 RUSS. L.J. 9, 19–20 (2013) (comparing American notions of proportional discovery with European norms). 18. See id. at 82 (“The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.”). stands in stark contrast to decisions that require parties to craft discovery requests in the dark and re-litigate the same discovery issues in virtually identical cases. Beyond the extent to which discovery sharing complements recent procedural reform efforts, it also has many collateral benefits, including increased litigation integrity through transparency along with, in at least some cases, increased accountability for wrongdoing.19 Part II of this Article examines the court-confidentiality problem and its relationship to discovery sharing. Part III examines historical and contemporary trends in pretrial discovery and their relationship to court confidentiality and discovery sharing. Then, in Part IV, the Article proposes some baseline discovery-sharing principles and examines the potential interaction between these principles and the current proposed amendments to the civil rules. II. Court Confidentiality Popular wisdom holds that courts are open to the public. As Atticus Finch presented his unforgettable closing argument in To Kill a Mockingbird, spectators watched from packed galleries.20 Though unjustly divided by race between the lower gallery and the balcony, they observed both the presentation of evidence in the trial and the unjust conviction of Atticus’s client.21 19. See, e.g., Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (“Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses.”); Dore, supra note 1, at 363–65 (recognizing implicitly that shared disclosure may increase accountability by noting that “[t]he desire to shield oneself from other potential claims, however, does not alone justify” objection to discovery sharing). 20. See HARPER LEE, TO KILL A MOCKINGBIRD 186–87, 229–35 (Harper 2002) (describing the overflowing public courtroom, indicating that not even standing room remained to watch the case unfold); see also TO KILL A MOCKINGBIRD (Universal Studios 1962) (using the packed courtroom, open to the public, to demonstrate that the case had grasped the attention of the public). 21. LEE, supra note 20, at 240. Popular notions of openness aside, the idea that courts and their processes are open to the public is only partially accurate. While a modern public would no doubt have a constitutional right of access to a criminal or civil trial, much of what takes place in litigation is not open to public view. In particular, civil discovery is often kept confidential through a procedural device known as a protective order.22 And because many cases settle during discovery and before trial, the general public and other litigants involved in virtually identical cases have limited access to pretrial discovery information.23 Confidentiality in litigation, however, comes at a cost. According to pro-transparency advocates, keeping public health and safety hazards confidential costs lives.24 Beyond the public safety issue, litigating individual cases in isolation has a systemic impact. Indeed, some have argued that the court system is made more expensive and less effective when those same pretrial confidentiality orders forbid litigants from sharing discovery in one case with litigants in other virtually identical cases.25 22. See FED. R. CIV. P. 26(c)(1)(g) (permitting a court to issue a protective order to ensure that “a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way”); see also Judith Resnick, The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 PENN. L. REV. 1793, 1814–17 (2014) (describing declining public access to once-public court functions, including pretrial discovery). 23. See, e.g., Andrew D. Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Generated Through Litigation, 81 CHI.-KENT L. REV. 375, 401–02 (2006) (noting that much “litigant-centered” information, like discovery, generated through court processes is often kept from the public); see also Richard A. Zitrin, The Laudable South Carolina Rules Must Be Broadened, 55 S.C. L. REV. 883, 886–87 (2004) (describing the lack of judicial awareness of lawyer-driven secrecy through discovery and settlements occurring outside the view of the court). 24. See Zitrin, supra note 2, at 1565–66 (describing a particular case in which a plaintiff’s attorney, after agreeing to a “secretized” settlement, “[acknowledged] that others may have died later as a consequence” of the confidentiality). 25. Cf. Dore, supra note 1, at 363 (“Discovery sharing, while arguably undermining the efficiency of discovery in the immediate lawsuit, potentially avoids the wasteful duplication of discovery in collateral litigation, thereby ultimately advancing the efficient resolution of disputes.”). As a prefatory matter, I choose the word “confidential” carefully here. Terminology in the confidentiality debate can carry a loaded meaning.26 Proponents of more confidentiality, for instance, often refer to the issue as one of “privacy.”27 Likewise, those who favor more public access to discovery materials typically refer to the issue in terms of “secrecy.”28 In this Article, I refer to those in favor of less public access as “pro-confidentiality” and those in favor of more public access as “pro-transparency,” recognizing that neither term connotes those positions with perfect neutrality.29 The following subparts explore the basic protective-order framework in the American system and narrower, yet significant, problems stemming from the use of pretrial protective orders to stifle discovery sharing. A. Pretrial Protective Orders For more than three decades, courts, scholars, and legislators have debated the impact of court confidentiality. For the most part, the discussion has centered on public access and the tension between the idea that courts are public institutions that express public values and the notion that litigants do not sacrifice all privacy at the courthouse door.30 And while it is difficult to calculate precisely which side has the momentum, it is undeniable that pretrial confidentiality is a feature of modern litigation.31 26. Cf. Nancy S. Marder, Introduction to Secrecy in Litigation, 81 CHI.KENT L. REV. 305, 305 (2006) (suggesting a court-confidentiality vocabulary). 27. See, e.g., Marcus, supra note 2, at 15 (observing the “privacy afforded pretrial proceedings” through protective orders). But cf. Marcus, supra note 10, at 457 (referring to the issue as “The Discovery Confidentiality Controversy”). 28. See, e.g., Zitrin, supra note 2, at 1572 (“In the last five years, secrecy in settlements has become an increasingly common subject of articles in the popular legal press and more scholarly forums.”). 29. See Marder, supra note 26, at 305 (describing the connotations associated with certain “loaded terms” often used when addressing the issue of confidentiality in discovery). 30. See sources cited supra note 2 (listing works of scholarship exemplifying the debate surrounding privacy in discovery). 31. See, e.g., Dore, supra note 1, at 285 (observing that secrecy is a part of The confidentiality problem is typically framed as pitting the public’s interest in knowing against the litigant’s interest in confidentiality. In reality, this false binary oversimplifies the problem and ignores a third category affected by court confidentiality—litigants in separate but similar cases.32 This group occupies a special position, with distinct interests in accessing discovery information but still regularly excluded from access by confidentiality orders.33 The trend of keeping pretrial litigation information confidential from both the public at large and other similar litigants pervades all aspects of the trial process. Before trial, courts and attorneys working on behalf of litigants liberally employ confidentiality orders to closet pretrial discovery from anyone outside of each particular case.34 Many of these cases settle, and settlement agreements often contain court-enforceable gag provisions that extend the original confidentiality orders indefinitely.35 These agreements, like the orders that precede them, often include “return-or-destroy” provisions that require the parties to return or destroy all discovery information in the case within a few months of settlement.36 These mechanisms make it more difficult for the every phase of civil litigation). 32. See, e.g., Marcus, supra note 10, at 493–94 (discussing “access for other litigants”). 33. Cf., e.g., id. (summarizing steps being taken to improve access to confidential material produced during discovery for similarly situated litigants). 34. See, e.g., Dore, supra note 1, at 332 (“To expedite discovery and avoid repeated motions for a protective order regarding every document believed to be confidential, parties will frequently agree to, and courts will regularly issue, umbrella protective orders.”). 35. See, e.g., id. at 290–92 (cataloguing the Civil Rules explicit bent toward settling cases); Anderson, supra note 2, at 813 (describing, from a federal judge’s perspective, the “take it or leave it” approach of some parties in getting courts to ratify secret settlements through court order). 36. See, e.g., Anderson, supra note 2, at 814 (describing requests from one or both of the parties to enter orders with “return or destroy” provisions). Even if relevant material is returned to the producing party, that party very well may have a duty to preserve it for future litigation. See, e.g., 8A WRIGHT ET AL., supra note 16, § 2284.1 n.4 (discussing the possible sources of an obligation to preserve information within control of a party). Compliance with that duty, however, is made more difficult to police when protective orders force the return or destruction of the material by opposing parties. general public and litigants in similar cases to obtain the information. Even in cases that make it to trial, some courts have recently, and inexplicably, sealed trial testimony and exhibits from public view.37 Almost all facets of the broader court-confidentiality problem stem from a common root—protective orders. Confidential discovery, via protective orders, takes place in many cases that are ultimately settled.38 If parties were unable to keep information exchanged in discovery secret in the first place, secret settlements would be largely ineffective.39 As a result, it is not surprising that the early confidentiality controversy centered on appropriateness of protective orders. The term “protective order” actually describes several related procedural devices that limit discovery.40 But the type of protective order most relevant to the court-confidentiality debate allows courts to limit the persons to whom discovery information may be disclosed.41 To guarantee the confidentiality of pretrial discovery materials, these orders are necessary because parties may freely disseminate anything they learn in discovery to the public at large, absent a contrary court order. Described in Rule 26(c)(1)(g), these audience-limiting orders mandate that “a trade secret or other confidential research, 37. See, e.g., Idar v. Cooper Tire & Rubber Co., No. C-10-217, 2011 U.S. Dist. LEXIS 77568, at *4 (S.D. Tex. July 18, 2011) (permitting third-party intervenors to obtain documents produced by defendant in the current case, conditioned upon signing the parties’ confidentiality agreement, and denying access to exhibits produced by defendant in previous case under a different protective order). 38. See Dore, supra note 1, at 384–85 (describing the relationship between confidentiality and settlement). 39. See id. at 384 (“Secrecy undoubtedly facilitates the settlement process, and in some cases, compromise could not be reached without some assurance of its confidentiality.”). 40. See FED. R. CIV. P. 26(c)(1)(a)–(g) (enumerating various examples of “good cause” for a court to grant a protective order); see also 8A WRIGHT ET AL., supra note 16, § 2036 (stating that “a court is not limited to the eight specified types of orders” enumerated in Rule 26(c)). 41. See FED. R. CIV. P. 26(c)(1)(g) (allowing court use of a protective order to prevent sensitive commercial information from being disseminated to competitors); see also FED. R. CIV. P. 26(c)(1)(f) (allowing courts to seal depositions). development, or commercial information not be revealed or be revealed only in a specified way.”42 A particular order under this provision might limit disclosure of discovery materials to just those participating in the litigation—the parties, their attorneys, support staff, and experts.43 A more onerous, and rare, version restricts access to only attorneys and consultants—precluding even parties from having access to particularly sensitive information.44 The defining feature of an audience-limiting protective order is that it allows discovery to go forward while simultaneously limiting the audience for the materials. In a way, this type of order might be viewed as a pragmatic middle ground.45 Implicit in the protective-order arrangement is the notion that the primary purpose of discovery is to prepare and resolve litigation.46 Protective orders are often geared to steer discovery information to the appropriate audience for this purpose, even at the expense of other legitimate audiences.47 Nevertheless, under Rule 26, confidentiality is not automatic or an entitlement. Indeed, like other protective orders, Rule 26(c)(1)(g) confidentiality orders may be entered only on a showing of “good cause.”48 Under the best formulations of good 42. FED. R. CIV. P. 26(c)(1)(g). 43. See Dore, supra note 1, at 327 (“Courts, for example, may restrict the disclosure of such discovery to designated persons or forbid its use for purposes unrelated to the preparation and settlement of the case at hand.”). 45. Cf. Marcus, supra note 10, at 484–85 (observing that a broad right of public access to discovery information would disrupt discovery). 46. Cf. Marcus, supra note 2, at 7 (contending that those involved in the litigation system operate under “the assumption that any use of discovery materials except to prepare for trial is inappropriate”). But see Dustin B. Benham, Dirty Secrets: The First Amendment in Protective-Order Litigation, 35 CARDOZO L. REV. 1781, 1808 (2014) (acknowledging that the primary purpose of discovery is to prepare for trial but observing that “[e]ven in private litigation, parties openly use the system to obtain information” among other collateral purposes). 47. See Benham, supra note 46, at 1806–08 (arguing that the dissemination of discovery information is protected expression). 48. See, e.g., Pia v. Supernova Media, Inc., 275 F.R.D. 559, 560 (D. Utah 2011) (“Under the rule, the party seeking protection has the burden to show cause, a party seeking a protective order must make a particularized showing of both the confidential nature of the information and the harm that would flow from publicly disclosing it.49 Conclusory allegations, unsupported by specific evidence, will not justify an order.50 Still, trial courts have inarguably broad discretion in finding good cause and fashioning protective orders, “frequently finding protection justified, and frequently denying protection.”51 Even discretion, however, has its limits. Multiple courts have articulated good cause factors to provide at least a minimal structure.52 But in practice, the good cause standard has proven to be largely friendly to routine confidentiality requests, allowing many good cause for preventing dissemination of discovery materials.”). 49. See, e.g., Gelb v. Am. Tel. & Tel. Co., 813 F. Supp. 1022, 1034 (S.D.N.Y. 1993) (“With respect to [a] claim of confidential business information, [the good cause] standard demands that the company prove that disclosure will result in a clearly defined and very serious injury to its business.”); Parsons v. Gen. Motors Corp., 85 F.R.D. 724, 726 (N.D. Ga. 1980) (finding the “good cause” requirement “to mean that the party seeking the protective order must demonstrate that the material sought to be protected is confidential and that disclosure will create a competitive disadvantage for the party”). 50. See, e.g., Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (“‘Good cause’ is established when it is specifically demonstrated that disclosure will cause a clearly defined and serious injury. Broad allegations of harm, unsubstantiated by specific examples, however, will not suffice.”); cf. 8A WRIGHT ET AL., supra note 16, § 2035 (“The courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements, in order to establish good cause.”); Richard L. Marcus, A Modest Proposal: Recognizing (at Last) that the Federal Rules Do Not Declare that Discovery Is Presumptively Public, 81 CHI.-KENT L. REV. 331, 348 (2006) (noting that the standards for issuing protective orders are “somewhat exacting” but also contending that the substantial burden for obtaining a protective order does not imply public right of access in the absence of one). 52. See, e.g., In re Roman Catholic Archbishop, 661 F.3d 417, 424 (9th Cir. 2011) (balancing the factors enumerated in Glenmede Trust Co. to determine whether a party has shown “good cause”); Glenmede Trust Co., 56 F.3d at 483 (enumerating several factors, “which are neither mandatory nor exhaustive, that may be considered in evaluating whether ‘good cause’ exists”); Mosaid Techs., Inc. v. LSI Corp., 878 F. Supp. 2d 503, 508 (D. Del. 2012) (“Assessing whether good cause exists to seal a judicial transcript generally involves a balancing process, in which courts weigh the harm of disclosing information against the importance of disclosure to the public.”). courts to enter protective orders as a matter of course in complex cases.53 Other courts have recently gone as far as creating a standing protective-order form to which the parties may stipulate, standardizing the rubber-stamp process.54 B. Fault Lines in the Protective-Order Debate In response to a system that makes it easy to conceal discovery information, pro-transparency advocates have waged a multi-decade, multi-faceted campaign against protective orders. In large measure, these efforts have focused on public access questions,55 largely ignoring the impact of court confidentiality on the litigation system. Up to this point, the fight has primarily revolved around three axes: a First Amendment challenge, a rulebased right of access argument, and transparency legislation. One early line of attack against pretrial protective orders was founded in the First Amendment.56 In the late 1970s, protransparency advocates urged a First Amendment basis for resisting protective orders: court orders restricting what litigants do with information that they obtained in discovery allegedly 53. See, e.g., Joseph F. Anderson Jr., Hidden from the Public by Order of the Court: The Case Against Government-Enforced Secrecy, 55 S.C. L. REV. 711, 715 (2004) (contending, that to a federal district judge, “courts too often rubberstamp confidentiality orders presented to them, sometimes altogether ignoring or merely giving lip service to the body of law and existing court rules that are supposed to apply when the parties request that discovery documents be filed under seal”); see also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d Cir. 1994) (observing the trend of some courts to enter protective orders as a matter of course “without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders”). 54. See Model Protective Orders, U.S. DIST. COURT N. DIST. CAL., http://www.cand.uscourts.gov/model-protective-orders (last visited Nov. 19, 2014) (providing “court-approved model forms” for protective orders) (on file with the Washington and Lee Law Review). 55. See, e.g., Zitrin, supra note 2, at 1567 (arguing in favor of transparency on the grounds that “[o]nce the disputants go to court, the public nature of the forum trumps the formerly private nature of the dispute”). 56. For a full analysis of the current relationship between the First Amendment and pretrial protective orders, see generally Benham, supra note 46, at 1785–86. violated the Constitution’s free-speech guarantee.57 Early cases considering the argument suggested that confidentiality orders did not violate the First Amendment.58 But in 1979, the D.C. Circuit entered the fray and set off a firestorm by applying strict scrutiny to invalidate a protective order.59 If this view prevailed, many protective orders would be doomed. The Supreme Court, in Seattle Times v. Rhinehart,60 responded. Justice Lewis Powell, writing for a unanimous court, rejected the D.C. Circuit’s strict-scrutiny approach and instead held that, although the First Amendment did protect those who disclose discovery information, the special context of civil litigation implicated free-speech concerns to a lesser extent than in other contexts.61 While courts and commentators continue to debate the meaning of the case,62 multiple courts have held that Seattle Times effectively removed the First Amendment from the protective-order analysis.63 57. Cf., e.g., Michael Dore, Confidentiality Orders—The Proper Role of the Courts in Providing Confidential Treatment for Information Disclosed Through the Pre-Trial Discovery Process, 14 N. ENG. L. REV. 1, 10–14 (1978) (examining the role of the First Amendment regarding protective orders). 58. See Int’l Prods. Corp. v. Koons, 325 F.2d 403, 407 (2d Cir. 1963) (“[W]e entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s process.”). 59. See In re Halkin, 598 F.2d 176, 183 (D.C. Cir. 1979) (“Even if the order is relatively narrow, however, it restrains the petitioner from communicating matters of public importance for an indefinite period of time. As such it constitutes direct governmental action limiting speech and must be carefully scrutinized in light of the first amendment.”). 60. 476 U.S. 20 (1984). 61. See id. at 37 (“[W]here . . . a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.”). 62. See, e.g., Benham, supra note 46, at 1804–14 (arguing that protective orders implicate significant First Amendment concerns). 63. See Marcus, supra note 10, at 462–63 (“[A]ll are agreed that the broad [First Amendment] prior restraint argument that captured attention in the early 1980s no longer has force.”). Compare Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1114 (3d Cir. 1986) (noting that “[d]espite the Supreme Court’s apparent endorsement in the above passage of a least restrictive means analysis, its holding requires only a good cause analysis”), with Anderson v. Cryovac, Inc., 805 F.2d 1, 7 n.2 (1st Cir. 1986) (interpreting Seattle Times to Soon after the Court decided Seattle Times, a few commentators and courts cited the case to preclude discovery sharing between similar litigants.64 That approach has been roundly rejected because the case simply did not address the propriety of sharing.65 Indeed, if anything, courts allowing discovery sharing would impose a lesser speech restriction on litigants than that approved by the Seattle Times court.66 On another front in the court-confidentiality fight, transparency proponents have also contended that the Federal Rules of Civil Procedure create a right of third-party access to discovery materials.67 Under a previous version of Rule 5(d), all discovery materials had to be filed with the court.68 The reasoning went that the public had a common-law right to access the unsealed contents of a court file.69 Because discovery was on apply “heightened” scrutiny to the practice of issuing protective orders and allowing some role for the First Amendment in the granting of particular protective orders). But see Benham, supra note 46, at 1804–14 (“The Supreme Court’s opinion in Seattle Times, recent Court statements, and an assessment of the nature of both protective orders and the speech that they restrict make clear that so-called intermediate scrutiny applies”). 64. See, e.g., Rich Arthurs, Defendants Fight Back on Data Sharing, LEGAL TIMES, July 16, 1984, at 1 (describing Ford Motor Company’s attempt to use trade secret protection to prevent plaintiffs’ attorneys from sharing crash test data); Gary L. Wilson, Note, Seattle Times: What Effect on Discovery Sharing?, 1985 WIS. L. REV. 1055, 1056–57 (noting that the first court to apply Seattle Times “relied on the rationales enunciated by the Supreme Court and granted a protective order prohibiting the dissemination of discovered information to parties involved in similar litigation”). 65. See, e.g., Marcus, supra note 10, at 495 (“[I]t is difficult to see how the [Seattle Times] Court’s reasoning should prompt other courts to curtail access for use in other litigation.”). 66. See Benham, supra note 46, at 1823 (explaining that courts utilize sharing protective orders to allow litigants to share discovery with litigants in similar cases). 67. See Seymour Moskowitz, Discovering Discovery: Non-Party Access to Pretrial Information in the Federal Courts 1938–2006, 78 U. COLO. L. REV. 817, 865–75 (2007) (arguing that a presumption of access to discovery material was “created by the combination of the Rule 5(d) filing requirement and the Rule 26 good cause provision”). 68. For a thorough history of changes to Rule 5(d) and the implications for access arguments, see id. at 833–53. 69. See id. at 861–64 (observing that a general right to inspect and copy both judicial and public records and documents existed). file, or supposed to be, the public had a putative right to access depositions, interrogatory responses, and other discovery responses.70 A series of rules amendments, culminating in a 2000 amendment that forbids parties from filing discovery unless in connection with a proceeding or pursuant to a court order,71 effectively ended the Rule 5-based argument for a right of access to unfiled discovery.72 Transparency, or “Sunshine,” legislation is yet another front in the fight against protective orders. For more than a decade, the Sunshine in Litigation Act has been filed, and re-filed, in both branches of Congress but has never become law.73 Indeed, in May 2014, Senators Blumenthal and Graham reintroduced the legislation as the Sunshine in Litigation Act of 2014 (SILA 2014).74 The current act would require district courts to consider the health and safety implications of both protective orders (even agreed protective orders) and settlement agreements before approving them.75 In particular, courts could not approve 70. See, e.g., Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1978) (“As a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.”). 71. FED. R. CIV. P. 5(d) (2000). 72. See, e.g., Marcus, supra note 50, at 333 (“[A]mendments to the Rules that forbid the filing of most discovery in court . . . further support the proposal that the notion of the Rules themselves commanding public access should be laid to rest.”). But see generally Moskowitz, supra note 67 (indicating a presumption of access to discovery materials). 73. See Mary Elizabeth Keaney, Note, Don’t Steal My Sunshine: Deconstructing the Flawed Presumption of Privacy for Unfiled Documents Exchanged During Discovery, 62 HASTINGS L.J. 795, 798 (2011) (noting that the bill was originally introduced in 1993 by Senator Herbert Kohl, and it has been reintroduced annually ever since). 74. 75. S. 2364, 113th Cong. (2014). See id. § 2 (as introduced by Senate, May 20, 2014) Amends the federal judicial code to prohibit a court, in any civil action in which the pleadings state facts relevant to protecting public health or safety, from entering an order restricting the disclosure of information obtained through discovery, approving a settlement agreement that would restrict such disclosure, or restricting access to court records, subject to exceptions, unless the court has first made protective orders unless a “specific and substantial interest in maintaining the confidentiality of the records” outweighed the public interest in disclosure of “potential health or safety hazards.”76 Though primarily focused on giving the public access, SILA 2014 would also have implications for litigants seeking to share information between related cases. If the public has access to discovery materials so, presumably, would litigants in other similar cases as members of the public. And the Act’s nexus to public health and safety would often preclude protective orders in the very class of cases that benefit most from discovery sharing— products liability and tort actions involving products and injuries of national proportions.77 As Congress considers SILA 2014, it should consider the negative impact on court efficiency stemming from protective orders along with the impact on public safety. Additionally, some state legislatures have considered and passed transparency and sunshine legislation, including at least one statute that specifically addresses discovery sharing.78 Still, the momentum for sunshine legislation in many states tapered off in the mid-1990s.79 With the constitutional front in the fight against protective orders largely dormant, the rule-based front effectively dead, and independent findings of fact that: (1) the order would not restrict the disclosure of information relevant to the protection of public health or safety or (2) the public interest in the disclosure of past, present, or potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information and the requested protective order is no broader than necessary to protect the confidentiality interest asserted. 76. Id. 77. See id. (prohibiting protective orders in cases “in which the pleadings state facts that are relevant to the protection of public health or safety”). 78. See TEX. R. CIV. P. 76a (mandating a strict balancing test before courts may enter protective orders restricting access to unfiled discovery that implicates public health and safety); FLA. STAT. ANN. § 69.081 (West 2014) (forbidding court orders restricting disclosure of information concerning public hazards); VA. CODE ANN. § 8.01-420.01 (2014) (forbidding protective orders that stifle discovery sharing). 79. But see MONT. CODE ANN. § 2-6-112 (2014) (forbidding, by statute passed in 2005, certain court orders that have “the purpose or effect of concealing a public hazard”). the legislative front pending, the discovery-sharing discussion often takes place in the context of trial court discretion.80 The next subpart focuses on the relationship between protective-order discretion and discovery sharing. C. Sharing Discovery in Similar Cases Litigants often seek to use discovery information obtained in one case to prepare and develop another related case.81 The concept known as “discovery sharing” flows from a basic, uncontested proposition: Litigants may freely distribute discovery information unless a valid court order forbids them from doing so.82 And even if a court order limits how parties use discovery information, judges have broad discretion to refuse dissemination 80. See, e.g., Ashley A. Kutz, Note, Rethinking The “Good Cause” Requirement: A New Federal Approach to Granting Protective Orders Under F.R.C.P. 26(c), 42 VAL. U. L. REV. 291, 293 (2007) (describing approaches to determining good cause that range from “rubber-stamping” proposed protective orders to “hostility toward confidentiality,” analyzing various circuits’ approaches to “good cause,” and proposing an improved protective-order process under 26(c)). 81. See, e.g., Idar v. Cooper Tire & Rubber Co., No. C-10-217, 2011 WL 688871, at *3 (S.D. Tex. Feb. 17, 2011) (denying a protective order modification while acknowledging that the order allows for “sharing of discovered information with attorneys and other necessary persons representing parties with present or future cases pending against Defendant that arise out of the same or similar set of facts, transactions, or occurrences”); Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486, 490 (Fla. Dist. Ct. App. 2011) (noting respondents’ request for a sharing provision to include collateral litigants); Pincheira v. Allstate Ins. Co., 190 P.3d 322, 337 (N.M. 2008) (“The parties and amici recognize that this case is really about discovery sharing, both with other litigants and with the public at large.”); Cowan v. Gen. Motors Corp., No. 061330-MLB, 2007 WL 1796198, at *5 (D. Kan. June 19, 2007) (“The Court recognizes the public policy benefit of potentially sharing documents with attorneys involved in litigation of a similar product with similar issues.”). 82. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (holding that where “a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment”); see also Moskowitz, supra note 67, at 825 (“Absent a protective order, a plaintiff or defendant has the right to disseminate information obtained during discovery so long as the purpose for sharing is lawful.”). to one group (e.g., the media) and allow dissemination to another (e.g., litigants in similar, but separate, litigation).83 Plaintiffs’ attorneys typically contend that sharing information between similar cases allows them to avoid wastefully reinventing the wheel by repeatedly conducting virtually identical discovery.84 Beyond these efficiency gains, sharing proponents contend that exchanging information allows isolated plaintiffs to prepare cases collaboratively, leveling the playing field with large law firms and national collaboration on the other side of the docket. Sharing also increases discovery accountability by allowing parties to compare discovery responses against responses in a similar case.85 Despite the apparent benefits, disputes about the propriety of sharing have persisted for decades.86 Indeed, in the early 1990s, one leading pro-confidentiality commentator had already noted that the debate over so-called discovery sharing was “retrograde.”87 Some courts’ continued reticence to allow it is curious, particularly considering the overwhelming consensus 83. See, e.g., Raymond Handling Concepts Corp. v. Super. Ct., 45 Cal. Rptr. 2d 885, 890 (Cal. Ct. App. 1995) (noting that it is within trial courts’ discretion to allow sharing with similar litigants while denying access to the general public). 84. See FRANCIS H. HARE, JR. ET AL., CONFIDENTIALITY ORDERS 69–70 (John Wiley & Sons, Inc. 1988) (contending that discovery, as a result of nonsharing protective orders, “must be repeated anew in every case,” with the trial courts being forced to intervene in a repetition of the same discovery disputes); Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982) (asserting that denying sharing between litigants “would be tantamount to holding that each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel”). 85. See, e.g., FRANCIS H. HARE, JR. ET AL., FULL DISCLOSURE: COMBATING STONEWALLING AND OTHER DISCOVERY ABUSES 166 (ATLA Press 1995) (arguing that “information sharing also provides plaintiffs the opportunity to verify the completeness and accuracy of a defendant manufacturer’s response to discovery request”); cf. Marcus, supra note 10, at 495–96 (“In addition, in some cases access may prevent efforts to mislead the court in the second case.”). 86. Compare Campbell, supra note 2, at 824 (opposing information sharing on the ground that it creates waste and threatens proprietary interests of parties), with Marcus, supra note 10, at 495–96 (observing that discovery sharing benefits the litigation system), and Rhiana Sharp, Comment, Let in a Little Sunshine: Limiting Confidential Settlements in Missouri, 69 MO. L. REV. 215, 229 (2004) (“Discovery sharing should be encouraged.”). Marcus, supra note 10, at 495. is discoverable in their own case.246 The approach is rooted in comity concerns and concerns about forum shopping.247 Indeed, several courts have resisted sharing orders on the ground that sharing provisions have the potential to thwart the discovery limitations of the jurisdictions in which litigants receive shared information.248 According to this line of reasoning, crafty litigants stuck in a jurisdiction with limited discovery could find a similar case with a sharing order in a jurisdiction with more liberal discovery standards. By doing so, the litigant might obtain information to which he or she would not otherwise be entitled. Accordingly, some courts deny sharing requests in favor of litigant-by-litigant modification.249 This process and the reasoning underlying it are flawed for several reasons. Even if an upfront sharing provision ignores discovery limitations in a collateral case, it does not harm the 246. See, e.g., Marcus, supra note 2, at 43 (arguing that third-party litigant seeking to modify protective order should establish that “he would have the right to obtain” discovery in collateral action); 8A WRIGHT ET AL., supra note 16, § 2044.1 (“If the limitation on discovery in the collateral litigation would be substantially subverted by allowing access to discovery material under a protective order, the court should be inclined to deny modification.”); cf. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1132 (9th Cir. 2003) (“[T]he collateral litigant must demonstrate the relevance of the protected discovery to the collateral proceedings and its general discoverability therein. Requiring a showing of relevance prevents collateral litigants from gaining access to discovery materials merely to subvert limitations on discovery in another proceeding.”). 247. See, e.g., Foltz, 331 F.3d at 1133 (“Allowing the parties to the collateral litigation to raise specific relevance and privilege objections to the production of any otherwise properly protected materials in the collateral courts further serves to prevent the subversion of limitations on discovery in the collateral proceedings.”). 248. See, e.g., Bertetto v. Eon Labs, Inc., No. 06-1136 JCH/ACT, 2008 WL 2522571 (D.N.M. May 29, 2008) (stating that sharing provisions would “potentially usurp . . . a collateral court’s role in managing discovery in a collateral case”); see also Cordis Corp. v. O’Shea, 988 So. 2d 1163, 1167 (Fla. Dist. Ct. App. 2008) (“Allowing this degree of sharing of confidential information may provide a mechanism for attorneys in states with narrower discovery laws to evade their state law discovery limitations . . . .”). 249. See, e.g., Cordis Corp., 988 So. 2d at 1167 (noting that “not every federal court decision has approved sharing confidential information even with collateral litigants or counsel”). producing party in a way recognized by Rule 26(c). When previously produced information is shared, the producing party has presumably already expended resources to complete the discovery in the sharing jurisdiction. The collateral party receiving the shared information is responsible to pay to copy the documents.250 Moreover, the party benefiting from sharing will almost always be required to agree to be bound by the terms of the protective order (e.g., use the documents only to prepare and try the collateral case).251 If anything, the producing party has saved expense and time in the collateral case.252 The system has undoubtedly benefited, particularly if the party receiving the shared information is able to exercise her discretion better in framing discovery requests in the collateral case or avoid some requests altogether. Perhaps the producing party could complain that the collateral party received undue access to information that helped prove her case. But discovery limitations are meant only to balance the search for truth against the cost of that search, not to serve as a shield against liability.253 Moreover, the scope of discovery is necessarily broader than the standard for admissibility.254 If shared discovery yields relevant, admissible 250. See FED. R. CIV. P. 26 advisory committee’s note (“The conditions may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”). 251. See Raymond Handling Concepts Corp. v. Super. Ct., 45 Cal. Rptr. 2d 885, 886 (Cal. Ct. App. 1995) (describing a protective order with a typical sharing provision, tailored to ensure compliance by counsel receiving the shared documents). 252. See Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982) (observing that sharing protective orders save defendant expense in time that would otherwise be spent on duplicative discovery in similar cases). 253. Cf. Hickman v. Taylor, 329 U.S. 495, 507–08 (1947) (delineating circumstances in discovery which could cause “the rights of individual litigants [to be] drained of vitality and the lawsuit [to become] more of a battle of deception than a search for truth”). 254. See FED. R. CIV. P. 26(b)(1) (allowing “[p]arties [to] obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense” even inadmissible information). evidence, the receiving jurisdiction’s trial process has been enhanced, not thwarted.255 Indeed, it is difficult to imagine what complaint the court in the receiving jurisdiction might have. If anything, the court in the receiving jurisdiction has had its interests furthered by the sharing protective order, particularly if the sharing jurisdiction has allowed broad discovery.256 With more proof available, attorneys may be less likely to engage in discovery disputes in the receiving jurisdiction, saving resources for that court. And more information, rather than less, is almost always beneficial in seeking truth.257 When that information comes to the collateral court essentially free of cost via a previously litigated case, it is hard to imagine the downside. One legitimate concern, albeit unlikely to occur often, is that attorneys engaged in national-scale claims might seek out a jurisdiction with unusually liberal discovery standards and create a discovery mill for other claims around the country.258 Presumably, the attorneys could file an action, obtain favorable discovery rulings, obtain a sharing protective order, and then use the jurisdiction to feed cases around the country, notwithstanding the merits of the collateral sharing case. At the outset, there are almost no identified instances of this hypothetical occurring. In the event that a court had evidence of such a scheme, it would have ample discretion to deny a sharing 255. See Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (“Shared discovery is an effective means to insure full and fair disclosure. Parties subject to a number of suits concerning the same subject matter are forced to be consistent in their responses by the knowledge that their opponents can compare those responses.”). 256. Cf. Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980) (“The availability of the discovery information may reduce time and money which must be expended in similar proceedings, and may allow for effective, speedy, and efficient representation.”). 257. See Garcia, 734 S.W.2d at 347 (“[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.”). 258. See Cordis Corp. v. O’Shea, 988 So. 2d 1163, 1167 (Fla. Dist. Ct. App. 2008) (warning that permitting parties to share confidential information “may provide a mechanism for attorneys in states with narrower discovery laws to evade their state law discovery limitations by obtaining confidential information” from a more liberal jurisdiction). provision in the first place or modify an existing protective order to shut the discovery mill down.259 Utilizing a case primarily as a vehicle for obtaining information to overrun other jurisdiction’s discovery limitations—rather than to work toward a resolution on the merits—would be inappropriate.260 But the mere specter of such abuse does not constitute reason to abandon discovery sharing in favor of ad hoc modification, particularly when courts have ample tools to deal with any instances that do arise.261 Nevertheless, the discoverability requirement is a predicate to sharing in many jurisdictions.262 As a result, parties forced to seek modification of protective orders may, in essence, litigate disputes about discoverability substantially similar to those they would face in their own cases. Upfront sharing provisions could avoid the problem altogether. Beyond the direct efficiencies generated by sharing provisions, the provisions also provide some indirect, systemic benefits. Indeed, up-front sharing provisions encourage party cooperation and efficiency in the long run by avoiding reliance problems and properly setting party expectations at the inception of protective orders.263 Later protective-order modifications often fall short in this regard.264 259. See, e.g., Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980) (“Unless it can be shown that the discovering party is exploiting the instant litigation solely to assist litigation in a foreign forum, federal courts allow full use of the information in other forums.”). 260. See id. (highlighting the primary aim of the Federal Rules of Civil Procedure: to “secure the just, speedy, and inexpensive determination of every action”). 261. See FED. R. CIV. P. 37 (permitting courts to sanction parties for failing to comply with court orders); FED. R. CIV. P. 26(g)(3) (providing that a court may impose appropriate sanctions on a party or party’s attorney for violating the certification standards for discovery requests and disclosures). 262. See, e.g., Long v. TRW Vehicle Safety Sys., Inc., No. CV-09-2209-PHXDGC, 2010 WL 1740831, at *1 (D. Ariz. Apr. 29, 2010) (“[T]he collateral litigant must demonstrate the relevance of the protected discovery to the collateral proceedings and its general discoverability therein.”). 263. See, e.g., Diversified Grp., Inc. v. Daugerdas, 217 F.R.D. 152, 158 (S.D.N.Y. 2003) (noting one court’s “restrictive attitude toward modification of protective orders” and arguing that “[i]f protective orders were easily modified, . . . parties would be less forthcoming in giving testimony and less willing to settle their disputes”). 264. See, e.g., id. (“Where there has been reasonable reliance by a party on a Courts considering protective-order modification requests regularly struggle with questions about reliance.265 Courts often hesitate to grant modifications to allow sharing after the parties have produced information to each other in reliance on a confidentiality order.266 The basis for this hesitation is that the parties produced the information with the expectation that it would be used only for the case at hand.267 By defeating party expectations about confidentiality, so the logic goes, litigants will be less likely to produce information under protective orders in the future, causing inefficiency and other problems for the discovery system as a whole.268 As discussed in Part IV.B, this reasoning may overstate the impact of defeated protective order expectations. Whatever the true extent and impact of the reliance problem, sharing protective orders avoid questions about reliance altogether in most cases.269 When a court enters a protective order with a well-crafted sharing provision, all parties to the order know, to a large extent, who may receive information under protective order, a district court should not modify the order ‘absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need.’”). 265. See Olympic Ref. Co. v. Carter, 332 F.2d 260, 264 (9th Cir. 1964) (noting acts committed by the defendants “in reliance upon the entry and continuing effectiveness of the protective orders”), cert. denied, 379 U.S. 900 (1964). 266. See Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 293 (2d Cir. 1979) (rejecting the Government’s modification request due to the opposing party’s reliance on the prior order). 267. See Campbell, supra note 2, at 772–75 (explaining that “[t]he number and variety of potential adversaries may make the ramifications of unfettered dissemination of discovery information overwhelming”); Marcus, supra note 2, at 43–44 (arguing that “a court should ordinarily deny nonparty access if all the parties to litigation number one oppose it, even though it may increase the nonparty’s expenses”). 268. See Campbell, supra note 2, at 772–75 (addressing potential risks to litigants resulting from “[t]he uncontrolled dissemination of discovery information among an ill-defined and untraceable amalgam of adversaries” and why this would lead to lessened efficiency); Marcus, supra note 2, at 43–44 (noting that parties who foresee repeated claims may “fight discovery more vigorously”). 269. See Timmins, supra note 92, at 1520 (noting that “protective orders that allow information sharing can substantially reduce the burdens that the discovery process imposes on the plaintiff”). that order. The increased certainty flowing from settled party expectations about litigant-to-litigant sharing may even, by itself, increase party willingness to provide forthright and complete discovery responses.270 In sum, in many cases, particularly products-liability and mass tort cases, later requests from collateral litigants to modify protective orders are perfectly foreseeable and avoidable.271 Courts should set reasonable party expectations by entering sharing protective orders that account for this reality at the outset.272 For some courts, the practice of sharing privileged information across jurisdictions presents special difficulties. Privileges are often based on policy judgments meant to influence real-world behavior.273 They represent particular jurisdictions’ views on how to best maintain and further society, not simply run a court system.274 These policy views manifest themselves in privileges by limiting litigant and court access to information. In contrast, Rule 26(c)(1)(g) is aimed at limiting the audience for materials that have already been, or will be, found discoverable.275 The focus of the protective order rules across jurisdictions (largely based on Rule 26(c)) is unquestionably 270. See Garcia v. Peeples, 734 S.W.2d 343, 347–48 (Tex. 1987) (explaining that the goals of discovery are “often frustrated by the adversarial approach to discovery,” and that “[s]hared discovery is an effective means to insure full and fair disclosure”). 271. See Campbell, supra note 2, at 827 (“Particularly in products liability cases, plaintiffs often routinely move to modify protective orders at the close of litigation . . . .”). 272. See id. at 831 (criticizing umbrella protective orders which do not account for this possibility). 273. See 2 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 5:2 (4th ed. 2013) (“Privilege rules occupy a unique place because they implement policies that are very different from those underlying other rules, and many privileges are broader in effect than other rules.”). 274. See id. (noting that privileges “are not designed to enhance the reliability of factfinding, and they exclude evidence that may be probative because other values are more important than finding truth in litigation”). 275. See FED. R. CIV. P. 26(c)(1)(G) (allowing courts to issue a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way”). important but is simultaneously more value-neutral and more homogenous on value questions than the privilege rules.276 For instance, the spousal privilege reflects the judgment that marriage is a good that the government should promote.277 The clerical privilege recognizes that candor between priest and parishioner, and the spiritual enlightenment that might follow, is good for society.278 As one might expect, the disagreements about the value judgments underlying privileges have produced substantial disparity in privilege law. Some jurisdictions recognize the physician–patient privilege while others do not.279 Even when lawmakers in different jurisdictions agree about the existence of a privilege, the contours of its applicability may vary dramatically.280 Adding to the complexity in the area, privileges are largely the province of state law in civil cases, even in federal courts.281 The fifty states have come to widely varying conclusions on privilege questions, an unsurprising result that reflects the political and moral diversity of the country. 276. See, e.g., Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 DUKE L.J. 631, 662 (stating that privileges “lie at the center of the contemporary debate about the foundations of liberal society” and that “[t]o privilege certain relationships is to declare certain values”). See Hawkins v. United States, 358 U.S. 74, 77 (1958) The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. 278. See Trammel v. United States, 445 U.S. 40, 51 (1980) (“The priestpenitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”). 279. Compare CAL. EVID. CODE § 994 (West 2008) (describing physician– patient privilege), with United States v. Moore, 970 F.2d 48, 50 (5th Cir. 1992) (“This Court has . . . concluded that there is no doctor-patient privilege under federal law.”). 280. Compare TEX. R. EVID. 509 (applying the physician–patient privilege in civil, not criminal, cases), with CAL. EVID. CODE § 300, 994 (applying the physician–patient privilege in criminal and civil cases). 281. See FED. R. EVID. 501 (“But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). But these value judgments are not implicated by protectiveorder procedures. If a privilege applies and prevents disclosure in discovery, an audience-limiting protective order simply is not necessary. Indeed, if a privilege keeps information out of discovery, there is simply nothing to protect. On the other hand, if one state’s privilege law in a particular area (or lack thereof) allows disclosure of information that would be privileged in another state, and no court enters a protective order, the first state’s privilege law may thwart the second’s.282 The same is true if a court in a state where information is not privileged allows discovery sharing with cases in states where privilege would limit disclosure. The information still would not reach the general public (because the collateral party presumably received the information by agreeing to the protective-order’s restrictions against further disclosure); but it would be available for litigation purposes, contrary to the receiving jurisdiction’s privilege law.283 One response to this might be simply that the states often thwart one another’s policy judgments, an undeniable reality of a multi-sovereign republic. The disparity in privilege law, largely recognized as appropriately within the discretion of state lawmakers or courts, might be more the culprit here than the sharing order. Indeed, the court in the sharing jurisdiction was not obligated to enter a protective order at all.284 And if it had refused to grant any confidentiality, its previous privilege ruling would have, in itself, thwarted the policy of the receiving jurisdiction by allowing would-be privileged information to flow in. In this same way, Colorado’s policy legalizing marijuana thwarts the criminal justice policy of its neighbor states when 282. See 2 MUELLER & KIRKPATRICK, supra note 273, § 5.8 (delineating which state’s privilege laws apply). 283. The party holding the privilege may, of course, still contest the admissibility of the information at trial. See, e.g., Marcus, supra note 10, at 496 (“[S]haring is consistent with a settled doctrine exempting exchange of information between litigants with a common litigation opponent from the risk that the exchange will be deemed a waiver of privileges.”). 284. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”). Colorado-grown pot flows across the border.285 Rather than serving as a reason to limit discovery sharing, tension among states’ privilege law may simply be an inevitable by-product of states’ recognized ability to make their own policy choices. Another version of the privilege problem comes up when sharing courts order parties to produce information pursuant to a qualified privilege.286 The trade-secret privilege provides an apt example. Many states qualify the trade secret privilege to allow courts to compel production of otherwise privileged information where failing to do so would “conceal fraud” or otherwise create “an injustice.”287 The burden is often placed on the party seeking the privileged information to establish that injustice or concealment of a fraud would occur absent disclosure in the case.288 Some argue that when courts allow sharing in trade-secret cases without requiring such a showing, the protective-order ruling might actually conflict with the sharing jurisdiction’s own privilege law.289 Many states’ privileges not only allow the party holding the privilege to refuse to provide the information absent a showing of injustice or fraud, but also to prevent others from doing so.290 A sharing protective order in such a jurisdiction, 285. See, e.g., Jack Healy, After 5 Months of Sales, Colorado Sees the Downside of a Legal High, N.Y. TIMES (May 31, 2014), http://nyti.ms/1kjtwf8 (last visited Nov. 19, 2014) (highlighting that some law enforcement officials in neighboring states that have seen an increase in marijuana-related offenses) (on file with the Washington and Lee Law Review). 286. See Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486, 490 (Fla. Dist. Ct. App. 2011) (addressing the tension between sharing protective orders and state trade-secret privilege). 287. Id. 288. See, e.g., id. (stating that “sharing provisions, like the underlying one, which allow the dissemination of trade secrets without considering these factors codified” under Florida law “are per se unlawful”). 289. See, e.g., FLA. STAT. ANN. § 90.506 (West 1995) (attempting to circumvent the conflict between disclosure and privilege by directing courts to “take protective measures that the interests of the holder of the privilege . . . require” when directing disclosure of such holder’s trade secret). 290. See, e.g., FLA. STAT. ANN. § 90.506 (“A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice.”); see also, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (holding that a protective order “entered on a showing of good cause as according to some, could potentially undermine the privilege in all future cases within the sharing provision after the first case.291 But in the trade-secret-privilege context, these concerns conflate two separate issues and overstate the concern. First, the question of whether material is discoverable or not because of a privilege is distinct from concerns about limiting the proper audience for the material through protective orders.292 If a court orders a party to produce otherwise privileged information because failing to do so would be “an injustice,” and does not enter a protective order, the information could be disseminated to the general public. Of course, the inquiries inform one another. A court should consider the efficacy of protective measures when deciding to order production of trade secrets or other privileged information.293 Whether to enter such an order, however, is a Rule 26(c) question, subject to the trial court’s broad discretion, not a privilege question. This distinction means that Rule 26(c)’s good cause standard, not privilege law, governs the size of the audience for trade-secret information a court has deemed discoverable. Moreover, protective orders that account for similarity between the sharing case and receiving case adequately account for trade secret holders’ interests. Well-crafted sharing orders allow sharing only with factually similar litigation.294 Thus, the required by Rule 26(c), . . . limited to the context of pretrial civil discovery, [that] does not restrict the dissemination of the information if gained from other sources” does not violate the First Amendment); Moskowitz, supra note 67, 824– 25 (discussing the role of good cause in granting protective orders). 291. See Wal-Mart Stores, 81 So. 3d at 490 (“Sharing provisions, like the underlying one, which allow the dissemination of trade secrets without considering [the operation of the privilege] are per se unlawful.”). 292. Cf., e.g, Chapa v. Garcia, 848 S.W.2d 667, 673 n.8 (Tex. 1992) (Doggett, J., concurring) (“While discoverability by the parties is often confused with disclosability to the public, discoverability and disclosability issues must be resolved separately.”). 293. See In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609, 613 (Tex. 1998) (holding that courts should enter appropriate protective order after determining whether to order production of trade secret information). 294. See, e.g., Raymond Handling Concepts Corp. v. Super. Ct., 45 Cal. Rptr. 2d 885, 886 (Cal Ct. App. 1995) (providing an example of a protective order that shared information is likely necessary and relevant in the receiving case, satisfying the “injustice” prong of the trade-secret privilege.295 If the discovery is relevant and necessary in one case involving a defective widget that injured a person it likely has a sufficient connection to another case involving the same widget that injured another person. In essence, if the court compels disclosure of trade-secret information and simultaneously grants a protective order that allows sharing with similar cases, it has implicitly ruled that the information is necessary for the proper preparation of all cases within the sharing class. To the extent the court has concerns about the relevance and necessity in cases receiving the information, it can address those concerns by narrowing the sharing class, not eliminating it entirely. An approach that allows appropriate sharing of tradesecret information, pursuant to a thoughtful and well-crafted sharing order, is consistent with the qualified trade-secret privilege. Second, courts have long recognized that the trade-secret privilege is qualified rather than absolute.296 Indeed, prominent commentators have recognized that protection for trade secrets is not a “true” privilege because trade secrets are “generally discoverable where they are relevant to the dispute.”297 In many jurisdictions, the showings necessary to trigger compelled disclosure of trade secrets because of “injustice” boil down to something more than, but akin to, relevance.298 Courts take this allowed sharing of information “in other pending similar litigation”). 295. See FLA. STAT. ANN. § 90.506 (stating that information may only fall within the trade-secret provision “if the allowance of the privilege will not . . . otherwise work an injustice”). 296. See, e.g., Bleacher v. Bristol-Myers Co., 163 A.2d 526, 529 (Del. Super. Ct. 1960) (“Before a court will order a manufacturer to divulge information relating to a secret process or formula of his product, it must be clearly shown that the information required is relevant to the issue, not otherwise available and necessary in the proof of plaintiff’s case.”). 297. 2 MUELLER & KIRKPATRICK, supra note 274, § 5:49. 298. See, e.g., Bleacher, 163 A.2d at 529 (finding the plaintiff entitled to the trade secret information necessary to prove her case); see also 2 MUELLER & KIRKPATRICK, supra note 274, § 5:49 (“The term ‘privilege’ appears in this setting, but there is no ‘true’ privilege simply because trade secrets and competitive information are generally discoverable where they are relevant to lenient approach because the trade-secret privilege works in tandem with protective orders to keep information from competitors. The purpose of the privilege is to preserve the value of tradesecret information by forbidding its disclosure to the privilege holder’s economic foes.299 Almost all sharing orders forbid dissemination to the disclosing party’s competitors. By doing so, the orders protect the value of the disclosing party’s secrets. It is well established that compelling the disclosure of trade secrets in litigation subject to a protective order that prevents competitors from accessing the information is appropriate.300 B. Modification Standards To the extent courts use nonsharing protective orders, collateral litigants should be able to obtain easy access to discovery for use in related cases. Most courts to consider the issue take this liberal approach, championed by Wilk v. American Medical Association.301 Wilk’s presumption in favor of modifying the dispute.”). But see In re Cont’l Gen. Tire, Inc., 979 S.W.2d at 613–14 (rejecting the argument that mere relevance is enough to overcome qualified trade secret privilege); cf. 26 WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 5651 (1st ed. 2010) (stating that the concept of “injustice” in the qualified trade-secret context “expanded in the caselaw to any situation in which the facts cannot be ascertained without disclosure of the trade secrets” (internal quotation marks and citation omitted)). 299. See, e.g., In re Bass, 113 S.W.3d 735, 739 (Tex. 2003) (“[A] trade secret is any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” (internal quotation marks and citation omitted)). 300. See, e.g., Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 362 n.24 (1979) (“Actually, orders forbidding any disclosure of trade secrets or confidential commercial information are rare. More commonly, the trial court will enter a protective order restricting disclosure to counsel. . . .”). 301. 635 F.2d 1295, 1299 (7th Cir. 1980) (“[W]here an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only after repetition of another’s discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification.”), superseded by rule as stated in Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009); see also, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131–32 (9th Cir. 2003) (citing Wilk with approval protective orders to aid collateral litigation best supports Rule 1 interests, as highlighted at the Duke Conference and in the proposed civil rules amendments.302 Some courts, however, disagree and continue to impose an unduly high barrier to modifying protective orders.303 The primary justification for doing so is the supposed harm to parties that have produced information in reliance on the order.304 But reality belies this reasoning. First, many protective orders are stipulated umbrella orders, rubberstamped by a court.305 By their very terms, these orders allow any party to the case to challenge the “confidentiality” of a document.306 If a court sustains the challenge, the document is immediately stripped of protection. It is hard to envision how a party might view such an order as a guarantee of confidentiality and thereby rely on it.307 Any party producing putatively confidential documents under an umbrella and requiring something less than Martindell’s extraordinary circumstances test); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994) (rejecting extraordinary circumstances test as too strict); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir. 1990) (adopting the standard in Wilk); Comes v. Microsoft Corp., 775 N.W.2d 302, 309–10 (Iowa 2009) (adopting the less stringent test from Wilk). 302. See COMMITTEE REPORT, supra note 6, at 77 (amending Rule 1 to emphasize that the parties, as well as the courts, have the responsibility to “secure the just, speedy, and inexpensive determination of every action”). 303. See Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (requiring “a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need” to disclose information under the umbrella of a protective order). 304. See id. (rejecting a government attempt to modify a protective order where parties relied on the order in providing testimony that would otherwise be privileged under the 5th Amendment). 305. See Howard M. Erichson, Court-Ordered Confidentiality in Discovery, 81 CHI.-KENT L. REV. 357, 357 (2006) (“Disturbingly, some courts routinely sign orders which contain confidentiality clauses without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders.” (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785 (3d. Cir. 1994))). 306. See Marcus, supra note 10, at 500–02 (describing, with approval, the operation of umbrella protective orders). 307. See id. at 502 (“Admittedly, the court may find the fact that an umbrella order has been used bears on reasonable reliance issues if modification of the order is sought. . . .”). order is taking a leap of faith, not relying on a promise of future secrecy. Second, it is well known that courts frequently modify protective orders to allow third parties to use discovery information in similar collateral litigation, particularly in products-liability litigation.308 Indeed, many protective orders specifically indicate that the court retains jurisdiction to modify the order even after the primary litigation has ended. To the extent any party relies on an order expressly indicating it is subject to modification in a litigation system that frequently modifies orders for litigation-related use, such reliance is unreasonable. Even if a party relies on a protective order for confidentiality, any harm flowing from a modification to allow information to be used in related litigation is minimal or nonexistent in most cases. Only two sources of harm typically flow from sharing-related modifications. Neither justifies an onerous modification standard. First, a party that produced inculpatory information in the sharing case may be held accountable in a receiving case for the real-world misconduct the shared information reveals. While this is undoubtedly undesirable for the producing party, courts should not resist modifying protective orders to aid parties in escaping liability in subsequent cases.309 It is true that litigants sometimes escape liability as a by-product of the rules’ goals (e.g., when a rule precludes disclosure of a damning fact for the sake of minimizing discovery’s burdens or protecting another process), but minimizing liability for misconduct is not an appropriate use of the discovery rules.310 Many courts have lauded discovery sharing’s capability to hold defendants accountable for varying discovery responses 308. See id. at 498 (acknowledging courts’ willingness to modify orders makes reliance less reasonable in many cases). 309. Cf. Dore, supra note 1, at 363 (arguing that protective orders should not be used to shield against liability). 310. See also United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) (discussing the great need for grand jury transcripts to be kept confidential); cf. Dore, supra note 1, at 363 (arguing that protective orders should not be used as shield against liability). across different cases.311 Better holding defendants accountable for the real-world conduct that led to litigation seems to be an even more fundamental benefit of shared discovery. To the extent parties produce information in one case in reliance on a protective order to shield them from an inculpatory disclosure in a future case, their reliance is not detrimental in a sense that Rule 26 should recognize.312 A second harm Rule 26 might recognize is an increased risk of public disclosure, potentially undermining the competitive value of information.313 When a protective order is modified, the audience of litigants and attorneys widens. Each additional person who receives the information makes it slightly more likely that someone violates the order’s terms and disseminates the information to a broad, even public, audience.314 The potential for mass dissemination may arguably be more acute in the Internet age, when one rogue recipient could disseminate an entire discovery production to a global audience.315 Nevertheless, experience has shown that the risk of such misconduct is minimal. During the more than forty years of the modern protective-order regime (including almost twenty years in 311. See In re Abbott Labs. Sec. Litig., No. 92 C 3869, 1993 WL 616693, at *4 (N.D. Ill. Nov. 15, 1993) (stating that discovery sharing “allows plaintiffs’ counsel to verify that they, in their respective cases, have in fact received all of the documentation they are entitled to”). 312. But see Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 295–96 (2d Cir. 1979) (finding that the district court erred in allowing the Government to obtain protected testimony because “a witness should be entitled to rely upon the enforceability of a protective order against any third parties” otherwise such witnesses would be “inhibited from giving essential testimony in civil litigation”). 313. See Campbell, supra note 2, at 824 (discussing the potential for “serious problems of policing and enforcement” of protective orders and noting that “[o]nce the information has been transferred beyond the limits of the jurisdiction where it was originally discovered, the court’s contempt power will no longer reach those in its possession”). 314. See id. (“[T]he likelihood of violation, inadvertent or otherwise, will increase in direct proportion to the number of disclosures.”). 315. See Marder, supra note 26, at 318 (observing that with the existence of the Internet “the reach of ‘public’ has expanded, and the consequences of any mistaken disclosure are far greater than when the ‘public’ meant an individual who went down to the courthouse . . . and then returned the document” after reading it). the Internet age), notable protective order violations are relatively rare.316 The relatively low number of serious violations likely stems from the serious consequences imposed on attorneys who violate orders. Contempt is one possible sanction.317 A less recognized informal punishment, but one that may serve as a serious deterrent, is the likely use of an attorney’s protectiveorder violation as evidence in other courts to prevent that same attorney, or expert, from obtaining access to discovery in future cases.318 This informal sanction could undermine a protectiveorder violator’s livelihood. Moreover, harm flowing from reliance on an order modified to allow yet-to-occur future violations is speculative.319 When courts assess the detriments of a modification, they should focus on actual or likely harm, not low-level possibilities.320 Protectiveorder violations are rare, but unauthorized disclosure to a competitor of a producing party as the result of a protective-order modification is almost unheard of. 320. 1980). 316. Some violations have occurred over the years, but courts have displayed robust willingness to enforce their orders. Relative to the tens of thousands of protective orders issued during the Rule 26(c) era, the number of violations remains small. But see Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012) (upholding sanctions for inadvertent violation when attorneys had unintentionally disseminated materials via a CD provided to a plaintiffs’ conference audience); McDonald v. Cooper Tire & Rubber Co., 186 F. App’x 930, 932 (11th Cir. 2006) (finding violation of protective order); Nevil v. Ford Motor Co., No. CV 294-015, 1999 WL 1338625, at *4 (S.D. Ga. Dec. 23, 1999) (finding expert in contempt when expert disclosed information about protected documents in collateral litigation). 317. See, e.g., Marcus, supra note 50, at 348 (noting that “contempt of court” is a potential punishment for violating a protective order). 318. Defendants are not shy about using past protective-order violations against the violator to urge courts not to grant access to information. See Defendant Cooper Tire & Rubber Co.’s Memorandum of Law in Opposition to Plaintiffs’ Motion to Compel & in Support of Cooper’s Motion for a Protective Order at 45, Richards v. Ford Motor Co., No. 310958/2011, 2013 WL 6096311 (N.Y. Sup. Ct. Dec. 9, 2011) (emphasizing that the “[p]laintiffs’ retained tire expert, Dennis Carlson, has been sanctioned previously” for violating a protective order). 319. See, e.g., Timmins, supra note 92, at 1523 (noting that courts have held that risk of harm through future disclosure is “entirely speculative”). See, e.g., Parsons v. Gen. Motors Corp., 85 F.R.D. 724, 726 (N.D. Ga. Beyond the harm accruing to a particular litigant from relying on a later-modified protective order, some courts have considered negative impacts on the system that might flow from modifying an order. That was the scenario in Martindell, where the Second Circuit required extraordinary circumstances to modify an order to allow civil discovery to be used in a criminal prosecution.321 Several witnesses relied on the protective order at issue when deciding not to exercise their Fifth Amendment right not to testify at a deposition.322 The court understandably worried that modifying the order would deter future litigants in the same situation from cooperating in civil discovery, particularly when criminal liability loomed in the background.323 This reasoning doubtless has common sense appeal—knowing that a protective order might be modified to accommodate prosecutors would cause most people to refuse to testify by invoking the Fifth. The gap in the court’s reasoning, however, is twofold. First, it is less than clear that future witnesses would know about the previous protective order modification. Second, most cases do not involve discovery that has a dual-purpose use as both civil discovery and high-stakes criminal evidence, making the specter of widespread discovery resistance unlikely in regular circumstances.324 In the absence of empirical evidence to the contrary, it seems unreasonable to assume that parties engaged in ordinary civil litigation will resist discovery to a greater extent than they would have anyway because of a possible protectiveorder modification. 321. See Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (discussing the reasons the “information in question” was not found to be confidential). 322. See id. at 295–96. 323. See id. (“In short, witnesses might be expected frequently to refuse to testify pursuant to protective orders if their testimony were to be made available to the Government for criminal investigatory purposes in disregard of those orders.”). 324. Cf. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987) (finding that, in contrast to the deponents in Martindell, the proponents of continued protection in this case “could not have relied on the permanence of the protective order”), superseded by statute as stated in Iridium India Telecom Ltd. v. Motorola, Inc., 165 F. App’x 878 (2d Cir. 2005). The Wilk court appropriately created a presumption in favor of modifying protective orders to give collateral litigants access to discovery in the absence of substantial prejudice to the party opposed to the modification.325 This modification-friendly approach considers the same interests as the Martindell court but accords them different importance.326 Instead of presuming the harm done to parties who allegedly rely on later-modified protective orders, the Wilk court requires a party resisting sharing via a modification to demonstrate actual harm from reliance or other prejudice.327 At the same time, the Wilk test accords proper weight to the benefits of shared discovery by placing a thumb on that end of the scale. This proofbased approach to reliance reasonably balances the interests at stake. A liberal modification regime also complements the current proposed amendments to the civil rules. When litigants in collateral cases modify a protective order and receive discovery under the modification, the discovery process is aided in collateral courts. Litigants receiving shared discovery information are in a better position to understand the benefits of potential discovery requests and to tailor them accordingly.328 Like any 325. See Wilk v. Am. Med. Ass’n, 635 F.2d 1295, 1299–1300 (7th Cir. 1980) (explaining that the presumption for public access to pretrial discovery “should operate with all the more force when litigants . . . use discovery in aid of collateral litigation on similar issues” because “access in such cases materially eases the tasks of courts . . . and speeds up . . . a lengthy process”), superseded by rule as stated in Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009). 326. See State ex rel. Ford Motor Co. v. Manners, 239 S.W.3d 583, 587–88 (Mo. 2007). The Manners court has recognized a third strand, in addition to the Martindell and Wilk tests, in the modification standard fight. See id. (“Arguably, the standards recognize the same controlling criteria and differ only in the weight that should be given to the criteria in their balancing.”). 327. See Wilk, 635 F.2d at 1301 (concluding that due to the “close similarity” between the actions the “State is presumptively entitled to access to all of the Wilk discovery on the same terms as the Wilk plaintiff”). 328. See FED. R. CIV. P. 26(b)(2)(C)(iii) (“[T]he burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”); see also COMMITTEE REPORT, supra note 6, at 80 (showing committee’s suggested amendments to Fed. R. Civ. P. 26 regarding proportionality in discovery). form of discovery sharing, sharing through protective-order modifications has the potential to reduce oft-repeating discovery litigation in repeating cases. C. Proportionality and Sharing Although sharing does work in tandem with proportionality to streamline discovery, the relationship has its limits. For instance, shared discovery does not provide an independent ground for courts and litigants to employ the proportionality concept to limit discovery in most instances. At first glance, shared discovery from a previous or contemporaneous case might potentially be a “more convenient, less burdensome” source of information.329 Moreover, shared discovery from another case might reduce the “importance of the discovery in resolving the issues.”330 Shared discovery in the possession of a requesting party almost certainly does not preclude similar discovery in the party’s own case based on these provisions in their current or amended form. Despite the intuitive appeal of the argument, no commentators and few courts have directly addressed the question. Courts have, however, regularly addressed the closely related question of whether litigants may request information from another party when the requestor already has the information in her possession.331 And they have routinely allowed such discovery.332 For example, courts should seldom disallow the deposition of a witness in a case just because that witness has previously been deposed in another case, even though that deposition has been shared.333 The re-deposition of the witness should be allowed 329. FED. R. CIV. P. 26(b)(2)(C)(i). 330. FED. R. CIV. P. 26(b)(2)(C)(iii). 331. See, e.g., Wilson Land Corp. v. Smith Barney, Inc., 48 Fed. R. Serv. 3d 1297, 1302 (E.D.N.C. 2000) (“The mere fact that the matters regarding which discovery is sought happen to be within the knowledge of the moving party is not usually grounds for objection . . . .”). 332. Id.; Weiner v. Bache Halsey Stuart, Inc., 76 F.R.D. 624, 625 (S.D. Fla. 1977). 333. Cf. Hoh Co. v. Travelers Indem. Co., No. 87-0274 RCL, 1991 WL because, particularly with party witnesses, litigants in the current case are entitled to know that the party’s contentions at deposition are based on current information for the current case.334 Indeed, discovery is not limited to just an investigation of facts; another important purpose of discovery is to ascertain the parties’ contentions about the facts, claims, and defenses.335 Over time, parties can subtly shift their positions or give a different version of the facts. Memories change. Different advocates advancing different claims ask different questions. Forcing litigants to rely on potentially outdated depositions to ascertain the current case’s factual and legal posture would undermine the quality of fact finding at trial. Thus, there is substantial necessity for the deposition in the second case, and even though there is substantial subject-matter overlap, the deposition is not, in any way that is cognizable by Rule 26, “duplicative” or “cumulative” or even “available” from a less costly source. The same logic should also apply when the form of discovery is dependent on written questions and a potentially variable party response.336 Over time, circumstances, along with claims and defenses, change. Litigants should have the benefit of their own questions and the responses that flow from them. Requests for admissions provide an apt example. Asking someone to admit a fact or position presumes that the person asking has some previous knowledge on which to base the question.337 Even if that 229948, at *3 (D.D.C. Oct. 25, 1991) (holding re-deposition allowed in light of changed legal circumstances after remand). 334. See id. (stating that the proposition that a court may not “‘prohibit the taking of a deposition altogether . . . absent extraordinary circumstances’” applies “even when the party seeking discovery wishes to take a second deposition of the same individual”). 335. See 8 WRIGHT ET AL., supra note 160, § 2014 (observing that the rule prohibiting discovery of matters within knowledge of requesting party “could hardly apply to discovery under the federal rules, since the purpose of the discovery rules is not only to elicit unknown facts, but also to narrow and define the issues”). 336. See, e.g., United States v. 58.16 Acres of Land, 66 F.R.D. 570, 573 (E.D. Ill. 1975) (holding that interrogatories are proper even when inquiring party already has knowledge). 337. See 8 WRIGHT ET AL., supra note 160, § 2014 (“[T]he very existence of a request–for–admission procedure, which often implies some knowledge on the knowledge flows from shared discovery, courts should not preclude discovery as disproportionate. Proportionality may, however, provide a mechanism to preclude re-discovery of information in some very limited circumstances. For instance, courts may decide that identical requests, including requests to which responses would not change from case to case, are “duplicative” or “cumulative” or simply not necessary in light of the burden of producing information that overlaps with already shared discovery.338 But this is a principle of limited applicability. Seldom will requests or responses be identical, or virtually so, even in similar cases. The facts of each case, and the parties’ contentions and shading of the facts in each case, will almost necessarily vary. The particular benefits of discovery for the current case must, in most cases, be weighed anew against the burdens of production despite the existence of shared responses from a previous case.339 Thus, while sharing supports proportionality through the better exercise of attorney discretion, the practice is not an independent ground to limit discovery under the current or amended proportionality rules. Instead of providing a basis to forbid discovery, sharing allows litigants to more carefully and thoughtfully employ proportional discovery requests. Instead of searching in the dark with unfocused discovery requests, attorneys can target particularly beneficial information based on their knowledge of other discovery productions in similar cases. This increased accuracy reduces both the volume of discovery requests and potential litigation about those requests stemming from wellfounded or unfounded objections. In many instances, faced with part of the requesting party of the matters covered by the requests for admissions, shows that knowledge is no bar to use of the tools authorized by Rules 26 to 36.”). 338. 6 MOORE ET AL., supra note 136, ¶ 26.41[13] (“A court will nevertheless limit discovery of matters known to the discovering party when the discovery appears to serve no purpose . . . .”). 339. See Wiwa v. Shell Petrol. Dev. Co. of Nigeria Ltd., 335 F. App’x 81, 84 (2d Cir. 2009) (holding that the district court committed clear error by granting a Rule 26(b)(2)(C)(iii) request to limit discovery because of availability of discovery in related cases when previous discovery was inadequate to address issues in present case). the choice between drafting requests for information already in their possession (and potentially litigating objections to those requests), litigants may well exercise their discretion to rely on shared information. A. Pretrial Protective Orders .......................................2188 B. Fault Lines in the Protective-Order Debate ...........2193 C. Sharing Discovery in Similar Cases........................ 2198 2 . Modification .......................................................2209 III. Trends in Discovery Reform ..........................................2214 44 . See, e.g., Brown Bag Software v . Symantec Corp., 960 F.2d 1465 , 1472 ( 9th Cir . 1992 ) (finding a protective order that denied access to party's in-house counsel was not an abuse of discretion).


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Dustin B. Benham. Proportionality, Pretrial Confidentiality, and Discovery Sharing, Washington and Lee Law Review, 2018,