SECRECY IN PRETRIAL DISCOVERY: HOW NON-RENDERING COURTS SHOULD TREAT
PRIOR PROTECTIVE ORDERS IN SUBSEQUENT LITIGATIONS
Abstract
Simply put, the issue that presents itself, at the heart of this Article
is what weight, if any, should a non-rendering court accord the
protective orders emanating from pending, settled and dismissed cases in
other courts? This Article adds a special tone to the already loud
voices on protective-order modification, arguing principally that
absolute deference to the issuing court is a leeway for duplicative
discovery that places an unfair burden on litigants, a consequence that
diminishes sound judicial administration and the Rule-1 objectives. This
Article will advance the policy argument that excessive deference to the
issuing court is an invitation for absolute insulation of the party
insisting on it to decline cooperation in subsequent litigations, which
has the potential for engendering further secrecy of bad products and
conducts at the expense of public safety. This article will assess the
justifications and criticisms underpinning the idea of deference to the
issuing court to modify and vacate its orders, emphasizing the validity
of those justifications and criticisms and the prospect for meaningful
balance to cater for necessary practicalities and the legitimate
interests of litigants while allowing subsequent parties to benefit from
civil discovery in substantial ways.