Proportionality, Pretrial Confidentiality, and Discovery Sharing

Courts around the country enter pretrial confidentiality orders every day. Commentators and courts have long debated the impact of court confidentiality on public safety. 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. 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. Courts are split on if, when, and how these orders should allow litigants to share pretrial discovery information.

This 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 examines 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.