ABSTRACT
GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders – court orders that require parties to maintain the confidentiality of information unearthed during discovery – have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.
But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of ‘good cause’. Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree to sidestep Rule 26(c)’s ‘good cause’ requirement and that judges, although formally duty-bound to protect the public interest, uncritically acquiesce to their demands. Worried about judicial rubber-stamping, some, in fact, have spent decades pushing to tighten Rule 26(c)’s standards – while others have, just as vigorously, opposed these efforts, insisting that the status quo works well enough …
Engstrom, Nora Freeman and Engstrom, David Freeman and Gelbach, Jonah B and Peters, Austin and Schaffer-Neitz, Aaron, Secrecy by Stipulation (April 29, 2024), Duke Law Journal, Forthcoming; Stanford Law and Economics Olin Working Paper Forthcoming; Stanford Public Law Working Paper Forthcoming; UC Berkeley Public Law Research Paper Forthcoming.
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