Litigation, Privacy and the Electronic Age

Yale Journal of Law and Technology Volume 3 | Issue 1 Article 3 2001 Litigation, Privacy and the Electronic Age Lewis A. Caplan Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Lewis A. Caplan, Litigation, Privacy and the Electronic Age, 3 Yale J.L. & Tech (2001). Available at: https://digitalcommons.law.yale.edu/yjolt/vol3/iss1/3 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Caplan: Litigation, Privacy and the Electronic Age Note: The following piece dates from 2000-01, at which time the publication was known as the Yale Symposium on Law and Technology. Page numbering, editorial style, and citation format may differ from that of the Yale Journal of Law and Technology. Litigation, Privacy and the Electronic Age t Honorable Lewis A. Kaplan: Abstract: In this speech, the Honorable Lewis A. Kaplan discusses one problem in the legal system created by advances in technology - the tension between the privacy interests of litigants and the increased availability of information in modern society. Although openness is a central tenet of the legal system, until recent advancements in information technology, significant logistical difficulties in obtaining records on all but the most notable cases made most information unavailable to the public. However, advances in technology have greatly facilitated access to the universe of legal doents. Judge Kaplan explores the potential consequences of increased availability of information in a number of contexts and argues that it imposes an important responsibility on Courts to rethink the boundaries between public and private in litigation and to exercise increased caution in dealing with processes that touch on these boundaries. Cite as: 4 YALE SYMP. L. & TECH. 1 (2001) I. INTRODUCTION 1 It is a pleasure to be with you this afternoon and to have an opportunity to discuss one of the major challenges facing the courts adaptation of law and the legal system to the special problems and opportunities created by the stunning advances in information technology that we all have seen and presumably will continue to see for the foreseeable future. Some of these problems have drawn a vast amount of attention, notably the intersection of copyright law and the Internet, as evidenced by the Napster, DVD and MP3.com cases. But there is another problem of at least equal importance that has drawn considerably less attention - the increasing clash between the privacy interests of litigants, both individual and corporate, and the vast explosion in the availability of information in our society. It is a conflict, moreover, that in many ways is t Edited transcript of remarks delivered to the Yale Law and Technology Society on November 6, 2000. : Judge, United States District Court for the Southern District of New York Published by Yale Law School Legal Scholarship Repository, 2001 1 Yale Journal of Law and Technology, Vol. 3 [2001], Iss. 1, Art. 3 just beginning and that will command more and more of our attention as time goes by. II. THE GENESIS OF THE PROBLEM 2 The notion of a problem concerning the privacy interests of litigants initially might strike one as involving an oxymoron. After all, openness is a central value in our society and our legal system. The Sixth Amendment guarantees criminal defendants the right to a public trial. Court records long have been presumptively open to public inspection. 1 Gag orders are subject to the most intense constitutional scrutiny.2 But despite the apparent transparency of the system, the reality long has been very different except in the most extraordinary cases. A. The Practical Obscurity of Information 3 To begin with, for a great many years, extending well into my early years in practice, the very existence of litigation that might attract public attention or otherwise threaten privacy interests usually was not widely known. While the courthouse doors and files were open, there were far too many courthouses to visit in the hope of finding something of interest. In fact, there was at least one major state - New York - in which it was possible until recent years to start a lawsuit and litigate it virtually to the point of trial without the creation of any public record of its existence. So unless one side or the other went to the press or another interested audience, there often was no practical way to learn of a lawsuit. 4 Even if the existence of a lawsuit was known, it used to be - and to a considerable extent still is - hard for an outsider to find out what was or is going on. Pretrial exchanges of doents typically take place between the attorneys and are not on the public record. Deposition transcripts in some courts usually are not filed and so often do not become available for public inspection. 5 Finally, and perhaps most important, the means of public dissemination - the newspapers, magazines, radio and television - usually were broad spectrum media. The only cases that drew their attention were those of interest to a large, usually general interest audience. So litigation did not pose much of a threat to the privacy of ordinary people or of most businesses. 1 See, e.g., United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995); United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995). 2 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976). https://digitalcommons.law.yale.edu/yjolt/vol3/iss1/3 2 Caplan: Litigation, Privacy and the Electronic Age B. Technological Advances and the Erosion of Privacy 6 This practical obscurity of information generated in all but the most exceptional cases has been eroded by technological advances. The difficulty of finding litigation involving a particular person or entity began to disappear in the 1970's with the introduction of Lexis-Nexis and then Westlaw, which made it a simple matter to find many cases. And today, it is much easier. We now have a case index on the Internet that allows anyone to determine whether any individual or entity is a party to a federal law suit anywhere in the country and, if so, the title and docket number of the case. PACER, another system in the federal judiciary, gives access to the docket sheets in federal cases anywhere in the nation. Many courts, including my own, have web sites on which many judges post decisions and even routine orders. And the most significant change from the courts' point of view is right around the corner. The federal courts have been developing an electronic case filing system in which all or most litigation doents will be filed in electronic form and accessible electronically. That system alre (...truncated)