Note – Don’t Steal My Sunshine: Deconstructing the Flawed Presumption of Privacy for Unfiled Documents Exchanged During Discovery
Mary Elizabeth Keaney
Volume 62, Issue 3, 795-820
Courts encourage settlement as a way to resolve disputes efficiently and clear congested dockets, but settlement agreements can have a sinister effect too. It is becoming common in modern litigation to draft settlement agreements that require the return of discovery materials and the sealing of court documents from public view. Legitimate privacy concerns warrant sealing pretrial discovery and other court documents. However, the practice of keeping information vital to the public health and safety sealed for a price is illegitimate, and should be prohibited.
Legislative efforts are being made to monitor the impact that secret settlement agreements have on public health and safety and to make the litigation process more transparent, but opponents have succeeded in blocking such legislation thus far. The primary objection raised by opponents to the Sunshine in Litigation Act and similar legislation is that there is a presumption of privacy for materials exchanged during pretrial discovery that is not filed with the court. Opponents rely upon a distinction between filed and unfiled discovery to support this presumption of privacy.
This Note demonstrates that such a presumption has no place in the debate over this legislation, and relies on a close examination of the history of the Federal Rules of Civil Procedure (“FRCP”) for filing and discovery to unwrap the mistaken presumption advanced by the Judicial Conference and other opponents to the legislation. From the inception of the FRCP, there has been a public right of access to discovery materials, whether filed with the court or not. The advent of technology has resulted in voluminous document exchange in pretrial discovery. Any changes to the filing requirements were aimed at relieving the burden and expense associated with storing discovery information, and not intended to create a presumption of privacy for documents not filed with the courts.