When the Bell Can't Be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation

Protective orders are commonplace in civil litigation, with trade secrets, privileged communications, and the like protected from public disclosure. In most cases, the protective orders are individualized and discrete, with each document evaluated separately. In mass torts, protective orders are a different beast. When litigants (mostly defendants) are producing large numbers of documents, they typically agree to a blanket protective order in advance, with the confidentiality of documents being designated by the producing party without document-by-document evaluation by the court. Such orders ordinarily permit the challenge of the confidentiality designations, but those challenges are relatively rare. In such cases, then, the confidentiality of the documents during the discovery process is largely within the control of the producing party. If the cases reach trial, very few if any documents used at trial are kept within the protective order, as the presumption for public access shifts to being very strong at that stage. The parties agree to such orders for two primary reasons. First, it is a practical way to deal with the sheer volume of exhibits and the fact that many of the documents are legitimately secret-manufacturing techniques, for instance, in pharmaceutical cases. Second, maintaining defendants' "bad documents" in secrecy provides leverage for plaintiffs in negotiating settlements short of trial, since settlement will theoretically prevent the documents from becoming public. Similarly, leaked documents can be used to create embarrassment and concomitant pressure on defendants (especially those that are publicly traded) to settle cases or to generate media attention that will recruit additional potential clients. Many papers address the question of the appropriate use of protective orders dealing with the issues described above. The scholarship focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.1 This Article is not a fundamental challenge to the approach discussed and suggested by those papers. Instead, I address that scholarship initially to establish a foundational point: Most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. Put another way, I start with the notion that protective orders have value and that there are reasons to try to prevent their regular and notorious violation. At the same time, I recognize that the orders have been abused occasionally and perhaps even regularly. On that foundation, I explore trends in protective order practice, focusing on the changes effected by the rise of electronic communications, and addressing two impacts in particular. First, as set forth below, Internet and other new technologies have dramatically increased the volume of documents to be produced by parties in litigation, in turn increasing the costs and efforts expended in the document designation process. Those increased costs may result in a stronger probability of erroneous designation of documents as confidential, whether intentionally erroneous or not. A second, and likely more important, impact of electronic communications is what happens when documents are disclosed contrary to the protective order - intentionally or not. As recently as a decade ago, parties and courts might have realistically hoped to recover leaked confidential documents that were disclosed in violation of a protective order without those documents becoming generally available. Today, in any case that has attracted public attention, the odds of such recovery are vanishingly small. As the Article's title suggests, the bell can simply not be unrung. …