NCJ Number
117327
Date Published
1989
Length
9 pages
Annotation
This article discusses measures attorneys can take to keep confidential the material that is irrelevant to the case which may be uncovered by the adversarial party during discovery.
Abstract
In Seattle Times Co. v. Rhinehart (1984), the U.S. Supreme Court held that there is no constitutional right of unfettered access to private information made available only for litigation. The Court reasoned that judges not only have the right to control access to and use of such information, but they also have an interest in preventing abuse of the litigation process. Such reasoning puts protective orders on a firmer constitutional footing. The best course is to negotiate a confidentiality order with the adversary at the beginning of a case. Such an order should permit parties or others producing information -- in the form of documents, interrogatory answers, or deposition testimony -- to designate some or all of it as 'confidential.' This is usually subject to the qualification that the designation must be reasonable. The order usually provides that only certain 'qualified' persons may see the designated confidential materials until the court either lifts the designation or modifies the restriction. The court should be asked to enter the confidentiality agreement as an order. When pressed to permit access to information covered by a confidentiality order, courts give great weight to whether someone has in fact relied on the order in producing documents. Attorneys, therefore, should scrupulously document such reliance. Even with a confidentiality order, however, the prudent attorney will also take other steps to ensure that materials the client wants kept confidential are not revealed to the adversary.