Rule 26(c) FRCP

Anglo-Saxon courts' discovery rules are very liberal: almost anything can be discovered, provided it bears some relevance to the trial and is not subject to a privilege.(2) While trade secrets do exist in Anglo-American intellectual property law, continental rules of bank secrecy are not recognized in Anglo-American law. Thus asymmetry in discovery rules is one more cause of tension in EU-US relations. But law is a double edged sword: it compels either party. Though it is perfectly rational to expect English law practice to harmonise with that of the EU no such expectation is warranted of the US. In US law, Liberal discovery, with costs ordinarily born by the party who's information is sought, is not going anywhere. However litigants can limit the extent or use of discovered material. In this short note we will discus the remedy of the protective order as a defence of parties against whom discovery is sought. For simplicity we limit our discussion to the federal rules of civil procedure. Most states have adopted similar rules though foreign lawyers should understand that the Federal Rules are not universal and that state rules may vary due to the fact that the both the US states and the federal government are sovereigns: strictly speaking the states are presumed to have all sovereign powers except those explicitly denied them in the federal constitution, and the federal government is presumed to have only those powers explicitly granted it in the federal constitution.(3)

II. Protective Orders: Federal Rules of Civil Procedure (FRCP) Rule26(c)

What can parties do to limit the discovery requests of their opponents? Invoking bank secrecy or other European laws will do little good: comity is only a discretionary measure.(4) However rule 26(c) of the Federal Rules of Civil Procedure, like its state law counterparts, offers remedies for parties against vexatious discovery, one of which is the a protective order.(5)

This area of law is of growing importance because "In recent years, the number of requests for protective orders and challenges to confidentiality agreements has grown astronomically."(6) This may be due to the information boom exemplified by but not limited to the internet.

Rule26(c) reads as follows:

"FEDERAL RULES OF CIVIL PROCEDURE

V. DEPOSITIONS AND DISCOVERY

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition, after being sealed, be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion."

(Emphasis supplied)(7)

The key terms in 26(c) are "good cause" and "any order". The first sets out the conditions of the remedy and the second sets out its extent. These are explored below.

A. Good Cause

1. Definition of "Good Cause"

Because the federal courts are divided into several different circuits covering different regions, the definition of "good cause" can, and does, vary from circuit to circuit. The variations are limited however to the weight given to the public’s right of access and requires a balancing of competing interests. The prevalence of "balancing tests" in American law explains the indeterminicity and manipulability and explains the skepticism or outright antinomianism of such differing schools of thought as Marxism, American legal realism , critical legal studies, and post-modernism. "It is difficult, if not impossible, to set a hard and fast rule for determining whether a protective order or confidentiality agreement will be entered or upheld by a court."(8) When that description is understood as but one of many examples of legal indeterminacy, it demonstrates the flexibility and manipulability of a legal order which is suffering from a serious internal crisis of legitimacy and authority.

The Third Circuit Court of Appeals has provided the most comprehensive and detailed list of factors to be applied to determine whether good cause exists. In Glenmede Trust Co. v. Thompson, the court enumerated a list of seven "good cause" factors:

1) whether disclosure will violate any privacy interests;

2) whether the information is sought for a legitimate purpose or for an improper purpose;

3) whether disclosure of the information will cause a party embarrassment;

4) whether confidentiality is sought over information important to public health and safety;

5) whether sharing information among the litigants will promote fairness and efficiency;

6) whether a party who would benefit from the order of confidentiality is a public entity or official; and

7) whether the case involves issues important to the public.(9)

However while we at least have "factors" we have no guide as to what weight to assign them - so the realist critique of interest balancing generally remains valid, particularly if particular legal terms are as poly-semic as modern scholars of semiotics (Saussure) or of formal logic (Quine) assert.

2. Burden of Proof

The party seeking the protective order bears the burden of proof of its necessity: actor incombit probari.

The key terms in 26(c), "good cause", places the burden upon the party seeking the protective order to prove its necessity.(10) A finding of "good cause" to issue a protective order depends on the facts of the case.(11)

3. Constitutional Claims and Scope of Appellate Review

The determination whether a movant has shown "good cause" and met the other standards of Rule 26 needed to obtain a protective order is left to the discretion of the trial court.(12) In making this determination the court should not apply a constitutional balancing test.(13) That is, the rights of privacy or diffusion of discovery are generally not analyzed as constitutional rights: constitutional challenges either to discovery or a protective order will generally be denied.(14)

For these reasons the determination of a trial court as to the necessity and extent of a protective order will, like any discretionary remedy, ordinarily be granted deference(15) if appealed unless abuse of process is shown.

B. Remedies to prevent vexatious discovery

1. Prohibition of discovery

In theory a protective order allows the judge to shape any remedy which justice requires [FRCP 26(c)]. In practice this means that a request for an outright ban of discovery will not be allowed unless the material is subject to the attorney client privilege. Permissible orders include limitations on material discovered - quantitative restrictions on discovery to prevent "fishing expeditions". Other remedies include ordering the discovered material be kept secret.(16)

Thus the most typically successful protective order will not seek an outright ban on the discovery of the material for use at trial but rather a restriction on later dissemination or use of the information.

This is not the only possible remedy however. While fees and costs are normally born by each party, just as costs can be reversed by the judge as a form of punitive damages, so also can the costs of discovery be reversed. "It is, of course, the general rule that each party should bear the costs of its own litigation efforts. On the other hand, no litigant ordinarily may be permitted to impose on another party the costs of its own litigation efforts."(17) These facts might help European lawyers better cope better with an alien system predicated upon adversarial procedures, including discovery, and judicial non-intervention and absence of cost shifting: in Europe (including the UK) costs are presumed to be born by the losing party - in the US the presumption is that each party bears their own costs. However European lawyers should understand that US presumption that parties bear their own costs can be reversed and as zealous advocats should seek such reversal whenever possible, including by making the point that in their own jurisdiction the costs would be born by the losing party.

Cost shifting as an additional supplementary remedy or an independant remedy to orders limiting discovery or dissemination of discovered material may be a useful remedy serving the interests of justice. The remedy of cost shifting forces the discovering party to only seek information that is reasonably calculated to be of use at trial. Rather than banning the discovery completely the discoverer can get the information - but would also have to pay for it. Cost shifting may or may not be available but it is clearly less restrictive than an outright ban of discvovery, albeit moreso than a confidentiality agreement. A good argument can be made that discovery costs should be born by the party requesting the information where the requested information is burdensome or costly to obtain. Rule 26(c) states the general rule that a court is permitted to enter a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."(18) Since confidentiality agreements are less burdensome to the discovering party they will be easier for the party against whom discovery is sought to obtain. Confidentiality agreements are explored in the next section.

2. Confidentiality Agreements

If shifting costs is not available an agreement that the confidentiality of the discovered information is to be respected, i.e. that the discovering party shall not disclose the discovered information outside of or after trial, is another possible remedy against invasive discovery. In Seattle Times Co. v. Rhinehart,(19) the Supreme Court observed that abuse of pretrial discovery "is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties." So the interest of the discovered against invasion of privacy may be protected through a protective order of confidentiality.

Federal Rule of Civil Procedure 26(c) provides an expansive definition of material that properly may be the subject of a confidentiality order or agreement, since that rule protects not only particular types of information but also information which leads to certain results. Rule 26(c)(7) specifically protects trade secrets, confidential research, and developmental or commercial information. The body of Rule 26(c) states the general rule that a court is permitted to enter a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."(20)

C. Sanctions for violation of a protective order

The proper sanction for violation of a protective order is a finding of civil contempt of court. Thus for example, the Eighth Circuit affirmed a finding of civil contempt against a plaintiff's counsel who improperly shared information covered by a protective order in Kehm v. Proctor & Gamble Mfg. Co. , 580 F.Supp. 913 (N.D. Iowa 1983), aff'd. 724 F.2d 630 (8th Cir. 1983).(21)

III. Conclusion

This note has shown some of the remedies which may be raised against discovery. While this note is hardly exhaustive, it does outline the basic lines of remedies against invasive discovery and includes citations for further information. The discovery procedures may seem thoroughly alien to a continental lawyer. However they are predicated upon serving the ends of justice. While a party may not be able to ban discovery outright, there are remedies which can be invoked to either shift the costs of discovery to the discoveror and/or to prevent use of discovered information outside of court.

Notes

1) The term "protective order" has been defined as: "Any order issued by a court which is meant to protect a person from harm or harassment. " ("The 'Lectric Law Library's Lexicon On * Protective Order *" http://www.lectlaw.com/def2/p103.htm ) The term protective order is not defined in the 4th or 5th edition of Black's law dictionary in anything other than family law. The 'Lectric Law Library defintion includes the term both in family law and in procedural law:
"PROTECTIVE ORDER - In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute, an order that prevents one party from approaching another, often within a specified distance."
"The 'Lectric Law Library's Lexicon On * Protective Order *"
http://www.lectlaw.com/def2/p103.htm

2) "Generally speaking, the Rules of Civil Procedure in most jurisdictions allow liberal discovery of any matter which is not covered by special privilege, as long as the
information sought is relevant or likely to lead to the discovery of relevant evidence."
Phillip J. Kolczynski.
"FOQA - Aviation Safety v. Legal Rights"
http://www.aviationlawcorp.com/content/foqasafety.htm

3) This theoretical distinction is no longer observed in practice however and is one aspect of the constitutional crisis facing the United States.

4) MANNING, LEE ANTHONY and SQUIRES, GARY PETER as Joint Administrators of Fitmay Produce Limited.
EC-98-1664-RyJR (Federal Circuit)
www.ce9.uscourts.gov/web/bap.nsf/aac7d56ca8fd884b852563be00610639/af2ae3304eb56696882567b500753d3e?OpenDocument

5) Rule: FRCP 26(B)(2) also offers limits on the scope of discovery:
"no unreasonable and redudant requests,
no excessively burdensome requests,
there are also numerical limits on some types of discovery, but a party may get more discovery by leave of court
party may turn over documents in order they are normally kept and make the opposition find what they are looking for."
Anonymous
"Discovery Before Trial"
http://www.lawstudents.org/procedure/Discovery.html

6) Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

7) Cornell Legal Information Institute
"Federal Rules of Civil Procedure, Rule 26"
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule26!28c!29!27]/doc/{@305}?

8) Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

9) Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

10) Mark A. Rothstein
Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation
http://www.law.indiana.edu/ilj/v71/no4/rothstei.html

11) Mark A. Rothstein
Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation
http://www.law.indiana.edu/ilj/v71/no4/rothstei.html

12) Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

13) Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 788 (1st Cir. 1988) cert. denied, 458 U.S. 1030 (1989); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1119 (3rd Cir. 1986), cert. denied, 479 U.S. 1043 (1987).

14) John W. Cowden
"Protective Orders: Ten Commandments for the Defense"
http://www.bscr-law.com/Seminars/Protective_Orders/protective_orders.html
citing: Seattle Times Company v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

15) Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

16) Gregory C. Sisk,
Discovery Controls
http://cartwright.drake.edu/gregory.sisk/%20Civ.Pro.2.Web/CivPro2.PP.12/sld001.htm

17) Intergraph Corporation, vs. Intel Corporation, cv-97-n-3023-ne
http://www.intergraph.com/intel/interog2.htm

18) Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

19) 467 U.S. 20 (1984).

20) Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

21) Andrea E. Reisbord
"They Have It And - We Want It: Discovery Motions in State and Federal Court"
http://www.cousineaulaw.com/forum_series/forum_discmotions.htm

Bibliography

Materials Cited

Anonymous
"Discovery Before Trial"
http://www.lawstudents.org/procedure/Discovery.html

Cornell Legal Information Institute target="LII"
"Federal Rules of Civil Procedure, Rule 26"
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule26!28c!29!27]/doc/{@305}?

John W. Cowden
"Protective Orders: Ten Commandments for the Defense"
http://www.bscr-law.com/Seminars/Protective_Orders/protective_orders.html

Phillip J. Kolczynski.
"FOQA - Aviation Safety v. Legal Rights"
http://www.aviationlawcorp.com/content/foqasafety.htm

The 'Lectric Law Library
"The 'Lectric Law Library's Lexicon On * Protective Order *" http://www.lectlaw.com/def2/p103.htm )
http://www.lectlaw.com/def2/p103.htm

MANNING, LEE ANTHONY and SQUIRES, GARY PETER as Joint Administrators of Fitmay Produce Limited.
EC-98-1664-RyJR (Federal Circuit)
www.ce9.uscourts.gov/web/bap.nsf/aac7d56ca8fd884b852563be00610639/af2ae3304eb56696882567b500753d3e?OpenDocument

Andrea E. Reisbord
"They Have It And - We Want It: Discovery Motions in State and Federal Court"
http://www.cousineaulaw.com/forum_series/forum_discmotions.htm

Mark A. Rothstein
Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation
http://www.law.indiana.edu/ilj/v71/no4/rothstei.html

Gregory C. Sisk,
Discovery Controls
hzttp://cartwright.drake.edu/gregory.sisk/%20Civ.Pro.2.Web/CivPro2.PP.12/sld001.htm

Eric A. Weiss, Debra L. Slifkin
"Enforceability of Rule 26(c) Confidentiality Orders and Agreements"
http://www.thefederation.org/public/Quarterly/Winter99/weiss.htm

Court Cases Cited

Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 788 (1st Cir. 1988) cert. denied, 458 U.S. 1030 (1989);

Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1119 (3rd Cir. 1986), cert. denied, 479 U.S. 1043 (1987).

Seattle Times Company v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
http://www.findlaw.com/cgi-bin/getcase.pl?court=US&vol=467&invol=20

Intergraph Corporation, vs. Intel Corporation, cv-97-n-3023-ne
http://www.intergraph.com/intel/interog2.htm

Other Court Cases on Discovery

Grant v. Huff (GA App. Ct., 1970)
http://www.lawstudents.org/procedure/cases/178SE2D734.html

Hart v. Wolff (Alaska, 1971)
http://www.lawstudents.org/procedure/cases/489P2D114.html

Hickman v. Tayler (U.S. 1947)
http://www.findlaw.com/cgi-bin/getcase.pl?court=US&vol=329&invol=495

Less v. Taber Instruments Corp. (NY Dist. Ct., 1971)
http://www.lawstudents.org/procedure/cases/53FRD645.html

Linbeger v. General Motors Corp. (WI Dist. Ct., 1972)
http://www.lawstudents.org/procedure/cases/56FRD433.html

Marrese v. American Academy of Orthopedic Surgeons (7th Cir., 1984)
http://www.lawstudents.org/procedure/cases/726F2D1150.html

Schlagenhuaf v. Holder (U.S. 1964)
http://www.findlaw.com/cgi-bin/getcase.pl?court=US&vol=379&invol=104

Learning and Teaching Materials:

On-Line Civil Procedure Flash Cards
http://www.twise.com/writings/bf_civpro.htm

(US laws on discovery Generally)