A Modest Proposal: Recognizing (at Last) That the Federal Rules Do Not Declare That Discovery Is Presumptively Public

Abstract

The theme of this event implies that there is considerable reason for alarm about “Secrecy in Litigation.” Against that backdrop, one who argues against public openness cannot avoid feeling like the Grinch. Consider the sort of hypothetical that would be launched against a pro-confidentiality position: Defendant produces, through discovery, a document from a member of its professional staff that acknowledges that one of defendant's products poses a significant danger to users of the product. Defendant has assiduously avoided release of this information and claimed that its product is safe. It then asks that the court keep its secret. Does one who says discovery is not inherently public insist that the court accede to this request? The easy answer is no; the court has more than enough discretion to refuse defendant's request and, presented with a situation as stark as that suggested by this example, it is likely that all, or nearly all, courts would refuse. But that scenario is not, I submit, the real problem. Rather, the real problem is that the overbroad notion that all information turned over in discovery (no matter what it contains, or what the court or even the parties, know about the material involved) is presumptively open to the public, even if no party wants to permit public access to the information. Yet, in court, representatives of the media still urge just such a broad proposition. Moreover, this position is said to be commanded by the Federal Rules of Civil Procedure and is occasionally accepted by courts as a decisive factor in determining whether use of discovery fruits may be restricted to litigation purposes.