This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.
The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent their regular and notorious violation. At the same time, he recognizea that the orders have been abused occasionally and perhaps even regularly. On that foundation, the Author explores trends in protective order practice, focusing on the changes affected by the rise of electronic communications.
This Article proceeds in three Parts. Part I provides an overview of the development of protective orders, particularly in mass torts. The Author describes the overall state of scholarship and litigation relating to protective orders, in particular the balance various writers have proposed between the parties' legitimate privacy and confidentiality interests versus the public interest in information-spreading. He also describes some leaks in past cases.
Part II explores a recent case, the Zyprexa litigation, that exemplifies most of the document disclosure issues through a modem lens. This case may suggest the future of protective order violations, and should therefore be considered carefully. The Author adresses the potential overdesignation of documents by the defendant as well as the process through which those documents became readily available, even as the judge sought their return. The use of anonymizing technologies and the fundamental ease of distributing documents electronically made that effort fruitless.
Finally, in Part III the Author provides some suggestions for how litigants and courts should change the way they act to deal with the new world in which they are acting. To date, most protective orders still look in the main as they did twenty or thirty years ago, and efforts to enforce them are similarly static. The Author suggests that today's world mandates a shift in approach, and that business as usual is no longer a reasonable option for a number of reasons. He urges greater penalties for violations of protective orders on any side, including the possibility of holding attorneys directly responsible in limited circumstances for the actions of their clients or retained experts. He also suggests that protective orders should be more readily subject to challenge by third parties. Finally, the Author argues that protective orders should be more comprehensive and specific.
27 Rev. Litig. 565 (2008)