Privacy Issues from the Judicial Perspective: Requirements for Protective Orders; the Frequency with Which Courts Employ Protective Orders Should Influence Counsel to Draft the Application with Detailed Statements (2003)

IN THE context of litigation, the anticipated threshold issue--should the court require disclosure to an adversary of private or sensitive information--most often becomes how and to whom the court will permit disclosure of information. Practitioners may need to explain to clients the breach of privacy consequences of raising certain issues in a lawsuit, particularly with respect to damages. They also should be aware of the necessity of raising privacy issues early in the proceedings so as to avoid a waiver. MANDATORY DISCLOSURE AND PROTECTIVE ORDERS In the United States, concerns may arise from a consideration of the mandatory disclosure requirements of Rule 16(a)(1)(A) and (B) of the Federal Rules of Civil Procedure, which, within 14 days of the Rule 26(f) scheduling conference require disclosure of the identities of witnesses and documents that the disclosing party may use to support its claims or defenses. There are exceptions to the disclosure requirement, but absent a stipulation between the parties, the prudent practitioner should act to avoid the potential for preclusion pursuant to Rule 37(c)(1) by bringing any objections to the attention of the court before the Rule 26(f) conference or by stating the objection in the Rule 26(f) discovery plan. Parties with privacy concerns about the contents of material required to be produced as part of mandatory initial disclosure also should consider the impact of the amendment to Rule 5(d), which now excludes from the requirement of filing with the clerk (and thereby renders unavailable to the public) disclosures made under Rule 26(a)(1) and (2) until they are used in the proceeding or filing is ordered by the court. Once such discovery materials are used in the action, for example, as an exhibit in support of a motion, they may become available to the public. For reason, protective orders entered under Rule 26(c) are becoming more routine. An April 1996 study by the Federal Judicial Center, Protective Order Activity in Three Federal Judicial Districts, Report to the Advisory Committee on Civil Rules, by Elizabeth C. Wiggins, Melissa J. Pecherska and George Cort, revealed in the District of Columbia in 1990 through 1992, protective order activity occurred in between 8 and 10 percent of all the civil cases on the docket. While the numbers were lower (approximately 5 percent) in the other districts studied, the number of cases affected was still significant. The authors' experience in the Southern District of New York confirms the findings in the three districts in the study of all applications for protective orders between 17 and 26 percent are submitted by stipulation of the parties. APPLICATIONS FOR PROTECTIVE ORDERS A. General Provisions The frequency with which courts employ protective orders should influence counsel to draft the application with a detailed statement of: * the categories of information would be subject to the order; * the procedures proposed for determining which information falls within the protected categories; * the procedure for designating material subject to the order; * the persons who may have access to the material protected by the order; * the extent to which protected materials may be used in related litigation; * the procedures for maintaining security; * the procedures for challenging particular claims of confidentiality; * the exceptions, if any, to the order's general prohibitions against disclosure; * the termination of the order after the conclusion of the litigation or at another time; * the return or destruction of materials received pursuant to the order; and * the court's authority to modify the order, both during and after the conclusion of the litigation. (1) The provisions of the Federal Rules of Civil Procedure governing the issuance of protective orders are in Rule 26(c) and were formulated to deter any improper use of the broad range of discovery options authorized by the Federal Rules. …