Mending the Wall
A Call for a Presumption of Privacy
in the Federal Civil Rules
D av i d S . C l a n c y, C h r i s t o p h e r A . L i s y, a n d B r e n d a n J . B r o d e u r
The authors are with Skadden, Arps, Slate, Meagher & Flom LLP, Boston.
“Good fences make good neighbors.”
—Robert Frost, “Mending Wall”
The purpose of this article is to identify a problem and suggest a
solution. The problem is this: As things now stand, documents
and other information produced by one side to the other in
litigation are not accorded any presumption of confidentiality.
Absent agreement or a court order to the contrary, the recipient
of an adversary’s otherwise private information can give it to
anyone—the New York Times or a business competitor, say—or
even publish it in a public forum or on a website. Unless both
sides agree, obtaining an order barring such disclosure is difficult. In this context, the law gives little weight to “mere”
privacy and demands more “compelling” justifications—for
example, that the information is a trade secret.
The absence of a presumption of confidentiality makes sense
for substantive court proceedings such as motions to dismiss,
summary judgment motions, and trial. Those are designed
to resolve a lawsuit, and that process is historically, and for
good reason, public. So the law makes it difficult (though not
impossible) to preserve the confidentiality of information that
is presented to a court in connection with case-determining
events. There is no need to change that existing law.
But the absence of a presumption of confidentiality does not
make sense outside that limited context. As parties prepare behind the scenes to make substantive court presentations, they are
required to exchange otherwise confidential information about
themselves. For an individual litigant, this compelled production of information might include correspondence revealing his
or her day-to-day activities, communications, and associations.
For entities, it typically includes vast quantities of email revealing the activities and statements of principals and employees,
which—because Americans spend so much time at the office—
usually encompass matters both professional and personal. The
vast majority of that private information will never appear in,
much less play an important role in, the substantive court proceedings that actually resolve the case; it is merely exchanged
during discovery. Yet, in that essentially extrajudicial setting,
the law gives that information no presumptive protection against
public disclosure.
However familiar it may be to lawyers, this arrangement is
bizarre. Imagine you’re sued and receive the customary broad request for documents. These are your own confidential materials.
Perhaps they are family files or communications between you
and your partners in a professional venture. Or imagine you’ve
been wronged in some way. You file a lawsuit to seek redress,
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and the defendant demands your private personal or professional files. Either way, you accept and understand that the law
requires you to turn the files over to your adversary. But why
should you need to specially ask your adversary and the court,
fingers crossed, to preserve their preexisting confidentiality
with respect to other people?
The Solution
Our proposed solution is this: The Federal Rules of Civil
Procedure and parallel state rules should be amended to protect information exchanged during the discovery process as
presumptively confidential—that is, permitting the recipient
to disclose documents solely to individuals properly involved
in the litigation, such as parties, court reporters, experts, and
witnesses. This presumption could be overcome, as to particular
information or categories of information, only by a case-specific
showing that there is a sound justification for eliminating the
preexisting confidentiality.
To avoid impinging on the traditional presumption of public
access to court proceedings, a party would be permitted to disclose its adversary’s information in court (not to a newspaper,
not on a blog) without seeking any kind of advance approval
and—in that particular context—without needing to overcome
our proposed presumption of confidentiality. Here, in the discrete setting of in-court presentation, current law would be
unchanged, and the proponent of confidentiality would still
bear the burden of persuasion. This exception—a “license to
file”—would certainly be a gap in privacy protection. But it is
one that already exists. Our proposal would merely preserve it,
not create it. And it is a gap that cannot be closed without at least
seriously impinging on the traditional right of public access to
court proceedings. Meanwhile, our proposal would close a much
broader hole without impinging at all on the traditional right
of public access to court proceedings. It is worth repairing that
broader gap, even if the smaller one remains.
Our proposal will likely cause some lawyers instinctive discomfort. Lawyers are accustomed to the current arrangement,
and they are accustomed to reassuring clients (and themselves)
by extolling the “right of public access to court proceedings,”
which sounds like a weighty justification. But if the issue is given
fresh consideration, without the biases of instinct and habit, it
becomes apparent that the current arrangement is defective and
that our proposal is sound.
Put simply, why should otherwise private information disclosed during discovery not be accorded presumptive confidentiality? It is not as if the subject matter of every lawsuit has such
significant societal importance that a lawsuit’s mere existence
should put the litigants in the position of begging for the privacy
that they possessed the instant before it was filed. Hundreds of
S u a
S p o n t e
A Judge Comments
H o n . Pau l W. G r i m m
The author is a U.S. district judge in the District of Maryland.* He is a member of the Civil Rules Advisory Committee and chairs its Discovery
Subcommittee.
We put more and more private information about our personal
and professional lives into public view. We post on social media sites
and blog. Yet, paradoxically, we claim a fierce desire to safeguard
our privacy. Ask any teenager whether she believes that by incessantly revealing the details of her daily life, thoughts, and emotions,
she has thereby forfeited her privacy rights. She will look at you as
though you are mad. Should the law be amended to protect against
the consequences of such self-disclosure?
In “Mending the Wall: A Call for a Presumption of Privacy in the
Federal Civil Rules,” the authors, David Clancy, Christopher Lisy,
and Brendan Brodeur, advocate an amendment to the federal and
state rules of civil procedure to protect that expectation of privacy
by prohibiting public disclosure of information obtained during the
course of discovery.
Is the problem identified by the authors a real one?
Is the remedy the authors propose the optimal way to provide
protection where needed?
I believe the answer to both questions is “no.”
The authors’ premise that discovery in civil cases can yield private
personal and professional information is indisputable. The additional
premise that truly private information is worthy of protection outside
the litigation in which it is produced is also indisputable. It does not
follow, however, that all documents produced in discovery should
remain presumptively confidential. Our judicial system is designed to
be an open one, and filings under seal are not readily countenanced.
Yet, the proposed amendment would effectively place all information
produced in discovery under seal.
The overwhelming amount of information produced in most
cases—even those that involve sensitive issues—is hardly confidential
or newsworthy. If individual litigants are uneasy that their documents will end up on the front pages of the New York Times in the
run-of-the-mill case, any such fear is aberrant. The real concern is
that the cost of reviewing all the electronically stored documents
produced in discovery is not productive or cost effective. Most documents produced in discovery never see the light of day even as an
exhibit to a motion, let alone as evidence at trial. Thus, the rule the
authors urge—a presumption that all information is confidential
unless otherwise agreed by the parties or ordered by the court—is
a far broader cure than the malady warrants.
(Continued on page 4)
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thousands of civil suits are filed each year, many of them with
no public importance—a citizen suing a company about a trip
and fall or partners suing each other about a business dispute,
for example. Certainly, if a dispute goes to trial, it inherently
becomes a matter of some greater weight. The courts are an important public forum whose operations—like those of all public
institutions—should be reasonably transparent. But very few
lawsuits actually go to trial; the vast majority—in the range of
99 percent—are resolved before that. See the Administrative
Office of the U.S. Courts, Federal Judicial Caseload Statistics,
available at www.uscourts.gov. Ultimately, the fact that some
lawsuits matter to society at large or proceed to a public trial is
not a good reason to dispense, in all cases, with a rational presumption that the discovery record is only for those involved in
the litigation and not everyone else.
The Counter-Arguments
Opponents of the proposal might argue that each lawsuit is inherently a matter of public importance because it involves some
violation of law and society’s resolution of it. But it is wrong to
assume that each civil lawsuit is about actual, or even probable,
wrongdoing. In contrast to criminal prosecutions, civil lawsuits
can be filed willy-nilly: There is no pre-prosecution “gatekeeper”
like the criminal grand jury. Rule 12(b)(6) (reinforced by the
seldom-used Rule 11) is a sort of sentry, but it stands behind
the gate, not before it. Nor does the rule demand and test the
sufficiency of evidence; rather, it is satisfied by allegations. As
the Supreme Court held in Ashcroft v. Iqbal, “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to
an entitlement to relief.” 556 U.S. 662, 679 (2009). As a result,
the mere existence of a lawsuit—even one that has survived for
years—does not tell us that the defendant has committed or even
likely committed some transgression, much less of a kind that
justifies making the defendant’s private papers presumptively
disclosable.
And even if each lawsuit were truly a matter of public significance, why would that justify the current arrangement, which
provides no default protection whatsoever for documents and
other information involuntarily produced by one side to the
other? The 20th century witnessed a dramatic expansion in
the scope of permitted discovery—from virtually no document
discovery under the civil codes that preceded the Federal Rules
Illustration by Sawsan Chalabi
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of Civil Procedure to discovery of specifically identified documents upon special approval of the court and, finally, to discovery of sweeping categories of documents without the need for
advance approval of the court. (This dramatic expansion is welldescribed in John H. Beisner’s “Discovering a Better Way: The
Need for Effective Civil Litigation Reform,” 60 Duke L.J. 547,
554–61 (Dec. 2010).) As a result, many modern lawsuits involve
sweeping intrusion into enormous repositories of otherwise private records, with the vast majority of “discovered” documents
so immaterial that they are never even submitted to the court,
much less admitted into evidence at trial (if one ever occurs).
Citing considerations like these, some federal appellate
courts—agreeing with eloquent commentators including
Professors Richard Marcus and Arthur Miller—have held that
there is no “public right of access” to discovery materials that
have not been filed in court. In Bond v. Utreras, 585 F.3d 1061,
1066 (7th Cir. 2009), for example, the Seventh Circuit held that
“there is no constitutional or common-law right of public access
to discovery materials exchanged by the parties but not filed
with the court.” Such decisions are sound, and they appropriately
make it more difficult for a third party—the New York Times,
say—to obtain access to a given lawsuit’s discovery record.
But they do not solve the problem. First, the rule they espouse
is not uniformly accepted. As recently as 2011, the Ninth Circuit
held that, “as a general rule, the general public is permitted access to litigation documents and information produced during
discovery.” In re Roman Catholic Archbishop of Portland in Or.
v. Various Tort Claimants, 661 F.3d 417, 424 (9th Cir. 2011). And
what if your adversary volunteers those records to the local paper? Or an uninvolved lawyer? Or a business competitor? The nopublic-right-of-access cases do not prohibit such disclosure; they
limit a third party’s ability to extract discovered information, not
a party’s right to divulge such information. If you want protection against the latter risk, it still is your burden to obtain it. You
must convince a judge to restore the privacy you had before suit
was filed. And under the current rules and associated decisions,
you will find this a strangely difficult task absent the cooperation of your adversary or an argument that the documents are
in some way uniquely deserving of protection. For instance,
in Burgess v. Town of Wallingford, the district court refused to
restrict public dissemination of deposition transcripts because
“case precedent suggests that even when a party admittedly
seeks to publicly embarrass his opponent, no protection should
issue absent evidence of ‘substantial embarrassment’ or harm.”
2012 U.S. Dist. LEXIS 135781, at *11 (D. Conn. Sept. 21, 2012).
The privacy presumption proposed here is based, of course,
on a so-far-unstated premise: namely, that it is important for
American society to ensure that its members have a meaningful measure of privacy. It is based on a corollary of that premise
as well: that the records in which we record our thoughts and
S u a
S p o n t e
A Jud ge Com ment s
(Continued from page 2)
The authors’ proposed new rule is also premised on the belief
that litigants and courts are reluctant to enter into confidentiality
agreements and orders. That has not been the experience of this
judge. I have found that most lawyers and judges view entry of
a confidentiality order as a routine matter. Indeed, many courts
have local rules or discovery guidelines with approved form confidentiality agreements. Of course, there are disputes regarding
the legitimacy of a party’s designation of a particular document as
“confidential” under such an agreement. It is rare, however, to have
a dispute about whether a confidential agreement is appropriate
in the first instance.
The existing rules of civil procedure provide ample recourse to
a refusal to enter into a confidentiality agreement by one party. The
issue may be raised in a Rule 26(f) discovery conference. If no agreement is reached, the issue should be raised when the judge holds a
Rule 16(b) scheduling conference. If the request for a confidentiality order is well reasoned and not overreaching, why would a court
refuse to enter an order contemplated by existing rules and practice?
Should a concern for confidentiality arise in conjunction with a
particular discovery request and response, a party can avail itself of
Rule 26(c). It allows the court to “issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense.” The authors never explain why this existing
rule is inadequate to protect confidential information produced
during discovery against unjustifiable disclosure.
Finally, an amendment to the Federal Rules of Civil Procedure
and those of all the states—the remedy suggested by the authors—is
the least likely means to achieve their goal quickly. Amending the
Federal Rules of Civil Procedure is a time-consuming and cumbersome process. An amendment can be proposed by the Civil Rules
Advisory Committee only after an extensive public comment
period, including public hearings. Then, it must be approved by
the Standing Committee for Rules of Practice and Procedure, the
Judicial Conference, the Supreme Court, and, finally, Congress. To
navigate this process takes a minimum of three years. If national
uniformity is the goal the authors seek, the civil procedure rules
of every state would require a similar amendment.
The authors have articulated a problem of concern: the creation
and preservation of data—both confidential and of little consequence—in ever-increasing quantity. Time alone no longer erases
all the data stored on some cloud whose working most of us little
comprehend. It makes us all understandably uneasy. But the solution proposed does not mollify that unease, while a sufficient remedy already exists in the rules and common practice. q
*The opinions expressed in this article are the author’s own.
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communications—however routine—are entitled to protection.
The privacy interest is not absolute, of course; but when policy
or judicial decisions are made, it is an interest that should weigh
meaningfully against countervailing considerations such as judicial openness. This premise is sound both as a prescriptive
matter (i.e., what should be) and as a descriptive matter (i.e.,
what already is).
As to the former (what should be), it is beyond reasonable
dispute that a meaningful degree of privacy is worth fostering and defending in any society, especially one like ours that
is animated by a spirit of individual freedom. Samuel Warren
and Louis Brandeis’s famous 1890 Harvard Law Review article,
“The Right to Privacy,” made that very point and, with it, an
early and eloquent case for the importance and legal protection
of individual privacy—what the authors called “the right to be
let alone.” 4 Harv. L. Rev. 193, 201. The article foreshadowed
the Supreme Court’s later privacy decisions—from Griswold v.
Connecticut (1965) (addressing prescription and use of birth
control) to United States v. Jones (2012) (addressing use of a GPS
tracking device by police).
As to the latter (what already is), it is clear that Americans
already believe that privacy is an important value, even if they
disagree about whether and when it is outweighed by competing values. This belief is deep-rooted. The Oxford Dictionary of
Quotations attributes this article’s epigraph—“good fences make
good neighbors”—to Robert Frost, who used it in his 1914 poem
“Mending Wall.” But in fact it is an old American proverb, which
first appeared in print in 1850 if not earlier. And variations of
it appeared in print long before 1850, including the humorous
“Love thy neighbor, but don’t pull down the hedge,” published in
Benjamin Franklin’s Poor Richard’s Almanac. Today, the sentiment that the “good fences” aphorism expresses—that barriers
are important in a healthy society—remains vibrant.
Indeed, in various ways however imperfect, the law already
reflects that societal consensus. Federal law prohibits opening
and reading another person’s mail without authorization, and
violations can result in criminal penalties. See 18 U.S.C. § 1702.
(This proscription is venerable, having its origin in the pre-independence Post Office Act of 1710, which was implemented
by Postmaster General Benjamin Franklin through a variety of
privacy-protective directives, including one requiring that mailbags be physically sealed until arrival at the town of destination.)
The Electronic Communications Privacy Act prohibits “tapping”
or otherwise electronically eavesdropping on an oral, telephone,
or electronic communication. See id. § 2511. Intentionally accessing another person’s computer without authorization is subject
to a broad and ever-evolving array of prohibitions, some with
criminal penalties. See id. § 1030 et seq.
The Supreme Court has also assumed the existence of a constitutional right to “informational privacy.” See Nixon v. Adm’r
of Gen. Servs., 433 U.S. 425, 458 (1976); Whalen v. Roe, 429 U.S.
589, 593–94, 600–01 (1977); Nat’l Aeronautics & Space Admin.
v. Nelson, 131 S. Ct. 746, 762 (2011). In each of these cases, the
Court addressed the government’s collection of information
and found that it satisfied the assumed right to informational
privacy in part because it was accompanied by meaningful safeguards against public disclosure—precisely what is missing in
civil discovery.
In view of such strong evidence of a societal consensus that
privacy is deeply important, how can it be that third parties can
gain broad access to your personal files simply because someone
brought a potentially baseless civil lawsuit against you? How can
it be that your right to seek redress in court for a wrong is conditioned on your willingness to accept that same impairment of
your privacy? Given the basic view that Americans should have
a meaningful measure of privacy in their day-to-day affairs, this
aspect of civil discovery is a strange and disturbing blind spot.
Why should you need
to ask your adversary
and the court to
preserve preexisting
confidentiality?
How did this blind spot develop? According to Professor
Miller, those involved in the expansion of federal civil discovery during the 20th century were mindful of the importance
of protecting privacy, but they believed that provisions in the
rules, such as giving litigants the right to seek appropriate protective orders, suffice to protect that interest. Arthur R. Miller,
Confidentiality, Protective Orders, and Public Access to the Courts,
105 Harv. L. Rev. 427, 447, 466 (Dec. 1991). Yet, giving litigants
the right to ask for confidentiality is hardly generous, and the
rules actually prejudice such requests. They provide broad access
to otherwise confidential documents without specifying their
presumptive confidentiality, and courts frequently hold that
discovered records are therefore presumptively public unless
their owner proves disclosure would cause some concrete and
substantial harm. In other words, “mere” invasion of privacy
is not enough.
When all is said and done, for the scant reason that a civil
suit has been filed, the current procedural regime vitiates privacy as to the vast majority of otherwise private personal and
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professional information. Is this what the drafters of the rules
originally intended? And if so, why did they deem it appropriate? Regardless of the answers to those interesting historical
questions, it is now clear that the present situation is defective
and ought to be fixed.
Addressing Skeptics
At this point, skeptics will likely be thinking something like
this: The courts are public institutions, and, as a matter of sound
public policy, it is crucial that their operations not be shielded
from public view. This sentiment is certainly sound. But as with
most general principles, there are limits. Even now, lawsuits are
not like wide-open public parks; they are more like museums,
with some areas open to the public and others roped off. Judges
need not disclose drafts of their decisions or inter-chambers
correspondence underlying those decisions; parties to a lawsuit
need not disclose communications with their attorneys; and attorneys need not disclose their own thoughts about the lawsuit.
What’s more, the judge has the discretion to impose case-specific
confidentiality restrictions on the documentary record and can
even bar the public from trials in certain circumstances. In reality, then, legal proceedings are “public” in the limited sense that
core aspects of those proceedings are open to all. But there is
no inconsistency between that principle and the rule proposed
here, which interferes not at all with public access to trials and
other substantive judicial proceedings.
The critic may also think: Doesn’t this proposal conflict with
the law, which protects freedom of speech and public access to
the government? For many decades, however, the civil rules did
not permit broad discovery at all, and no one suggested that
this long-standing arrangement violated the Constitution or
some other federal law or principle. Consequently, after the
legislative broadening of civil discovery, it stands to reason
that Congress is free to determine the particular contours of
that expansion. The Supreme Court confirmed as much in
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984), a defamation suit by a religious organization against the Seattle Times.
The Court resoundingly rejected a spirited First Amendment
challenge and affirmed a confidentiality order barring the
newspaper from publicly disclosing information—the identities
of donors—it had received from the religious organization during discovery. The Court noted that the discovery rules are a
matter of “legislative grace”; that “pretrial depositions and
interrogatories are not public components of a civil trial”; that
“[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the
underlying cause of action”; and that protective orders serve
a “substantial governmental interest unrelated to the suppression of expression,” namely “the prevention of the abuse that
can attend the coerced production of information.” Id. at 32,
33, 35. The Court concluded:
We therefore hold that where, as in this case, a protective
order is entered on a showing of good cause as required by
Rule 26(c), is limited to the context of pretrial civil discovery,
and does not restrict the dissemination of information if
gained from other sources, it does not offend the First
Amendment.
Id. at 37.
Arguably, under Seattle Times, a confidentiality restriction
on discovered information is still subject to some degree of First
Amendment scrutiny. After all, the Court did not declare the
First Amendment inapplicable; it stated that “judicial limitation on a party’s ability to disseminate information discovered
in advance of trial implicates the First Amendment rights of the
restricted party to a far lesser extent than would restraints on
dissemination of information in a different context” Id. at 34.
And the Court upheld the confidentiality restriction in Seattle
Times only after approving the case-specific “good cause” analysis that the trial court applied with respect to the particular
documents and interests at issue. Id. at 36–37.
So would Seattle Times bar the proposal here, which would
give presumptive confidentiality to all discovered documents in
a case without a case-specific “good cause” finding by the presiding judge? We think not. The purely private information that the
proposal would protect is a far cry from, say, a political petition
generated with publicly available resources. To the contrary, it is
information transferred to the recipient’s litigation adversary to
facilitate trial preparation, not to promote speech more generally.
Moreover, with our proposal, the recipient will have elected to
receive the information fully aware of the associated restrictions.
If this does not eliminate a First Amendment argument in favor
of public disclosure of the transferred information under Seattle
Times, it certainly greatly weakens the force of that argument.
In addition, our proposal by no means precludes evaluation of
the First Amendment. That can be argued as soon as a party or
nonparty chooses to raise the issue. Until then, the information
simply retains its preexisting private character. This makes far
more sense than first stripping information of privacy and only
later determining whether the deprivation was compelled by
the First Amendment.
Skeptics may also argue that the proposal is unwise because
discovery materials sometimes contain information that relates
to public safety. Without question, public safety is a crucially
important interest, but society correctly recognizes instances
where privacy outweighs it. For example, health care professionals can’t publish a list of patients infected with HIV even
if they believe it would reduce the number of future infections.
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Under our proposal, such matters still would be balanced by the
courts sua sponte or upon request. The only difference would
be that the information produced by one party to its adversary
would be treated as confidential until the court resolved the issue. Courts can be trusted to recognize the rare circumstances
where disclosure is necessary for public safety.
A final anticipated objection: Aren’t counsel and courts already reasonable on this topic? Aren’t confidentiality stipulations
routinely negotiated by counsel and accepted by the courts? Yes,
most experienced litigators would agree that courts and counsel are usually reasonable. But, for two reasons, this weighs in
favor of the proposal, not against it. First, it serves as further
confirmation that there already is a societal consensus in favor
of privacy, which supports the proposal’s premise. Second, even
if the current arrangement usually reaches the right outcome
eventually, the process of getting there is time-consuming and
expensive. Parties have to negotiate a confidentiality stipulation
and then, by filing a motion, persuade the judge to endorse it.
There is no guarantee all parties will agree on the basic concept
at all; and even when they do, the devil is in the details. Thus,
in addition to the burdensome process of securing negotiated
confidentiality, there will always be some uncertainty about
whether that outcome will actually be reached. However modest that uncertainty, it is unfair. A rule should streamline the
process and remove the uncertainty.
The Proposed Rule
What would our rule look like?
First, it would include what is currently the essence of most
negotiated confidentiality stipulations—namely, that documents
and other information produced during the discovery process
are presumptively confidential; may be used only for the litigation; and may be shared with only enumerated categories of
need-to-know individuals, including the parties themselves,
court reporters, experts, and deposition witnesses.
Second, the new rule would provide that on motion by any
party or nonparty (e.g., a media organization), this basic arrangement could be altered by the court for good cause. That
would simply flip the current presumption: Whoever seeks to
publicly disseminate unfiled discovery materials would have to
persuade the judge that, in the particular circumstances, there
is a sound reason to abridge the privacy interest. Perhaps certain documents should be made public to advance public safety,
because the case is otherwise of substantial public consequence
,or because certain documents are already public. Courts will
encounter and give effect to other justifications as well. But
absent this sort of rationale, previously private documents will
be treated, and respected, as confidential.
Third, the new rule would explicitly clarify that this
preemptive restriction on disclosure does not affect or limit
disclosure to the court itself. It would state that parties may file
documents with the court without seeking advance approval and
may use them in open court on a nonconfidential basis. As a consequence, the new rule would not impede the parties’ ability to
litigate the case as they see fit, nor would it restrict the public’s
access to documents germane to the adjudication of the case.
What would prevent a party from abusing this “license to
file” and indiscriminately filing irrelevant private documents?
Without question, this could happen in any case, just as any
number of inappropriate things can happen in any case. But
lawyers are officers of the court bound by ethical and professional obligations. Indiscriminately filing private documents
for no reason would risk sanctions. In addition, as to particular
documents or categories of documents, the owner could take
measures ahead of time—identifying them as particularly sensitive, for instance, and seeking a stipulation or order to avoid a
surprise public filing of those documents.
Conclusion
The title of this article—“Mending the Wall”—is, of course, an
allusion to Robert Frost’s famous poem “Mending Wall,” which
portrays the poet and his neighbor conducting their annual review and repair of the stone wall that separates their properties.
The poet questions the need for this work: “Something there is
that doesn’t love a wall,” he reflects. But the neighbor is certain
that it must be done and remarks, twice, that “good fences make
good neighbors.”
The poet and the neighbor are both right. Although the details should always be open to question—is a particular stretch
of wall necessary? how high should it be?—walls still are needed
to ensure a meaningful zone of privacy for each citizen. Over
the last century, the rules of civil procedure have abridged that
important principle. With no required showing that the predicate lawsuit has any factual basis, the rules permit broad access
to citizens’ confidential records and public dissemination of
those records unless their owner persuades the court—with no
meaningful help from the law—to restore their confidentiality.
This strange and perhaps accidental regime is inconsistent with
our traditions.
It does not have to be this way. Our proposal is workable and
rationally reconciles the competing values of privacy and public
access to court proceedings. In sum, our civil rules have opened
a wide gap in an old and important wall, and that gap can and
should be mended. q
Published in Litigation, Volume 41, Number 1, Fall 2014. © 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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