[Marked Confidential]: Negative Externalities of Discovery Secrecy

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status.

To correct the negative externalities caused by excessive discovery secrecy, courts must stop rubber-stamping proposed stipulated protective orders and confidentiality agreements. Instead, they must assert their authority to oversee discovery by carefully balancing the parties’ legitimate needs for confidentiality against countervailing public interests in disclosing discovery materials, whether or not the parties oppose confidentiality. Courts should also consider bringing back, or even expanding, filing requirements for certain discovery materials.