Proportionality, Pretrial Confidentiality, and Discovery Sharing

Table of ContentsI. Introduction 2182II. Court Confidentiality 2186A. Pretrial Protective Orders 2188B. Fault Lines in the Protective-Order Debate 2193C. Sharing Discovery in Similar Cases 21981. Upfront Sharing Provisions 22022. Modification 2209III. Trends in Discovery Reform 2214A. History 2214B. Current Proposal 2219IV. A Framework for Discovery Sharing 2225A. Upfront Sharing Provisions Versus Later Modification 2227B. Modification Standards 2241C. Proportionality and Sharing 2248V. Conclusion 2251I. IntroductionCourts 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 these orders should allow litigants to share pretrial discovery information.5This 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.6The 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 its opponents to wastefully reinvent the wheel when conducting discovery in each case.8Indeed, 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.10Surprisingly, 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. …