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SECRECY IN PRETRIAL DISCOVERY- HOW NON-RENDERING COURTS SHOULD TREAT PRIOR PROTECTIVE ORDERS IN SUBSEQUENT LITIGATIONS.pdf (471.21 kB)
SECRECY IN PRETRIAL DISCOVERY: HOW NON-RENDERING COURTS SHOULD TREAT PRIOR PROTECTIVE ORDERS IN SUBSEQUENT LITIGATIONS
preprintposted on 2021-03-04, 22:37 authored by Naphtali UkamwaNaphtali Ukamwa
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.
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