Protective Orders in Litigation

Public access to court documents is firmly rooted in U.S. history. However, this practice started back when litigants produced a minimal number of documents and privacy concerns were nonexistent. Today, parties to a case can produce hundreds of thousands of documents, all filed in searchable form for anyone to see. Protective orders preventing their disclosure have been around for a long time, but they began to be used more frequently in the 1980s as a result of aggressive litigators and overly broad discovery requests.

Protective orders usually have either one or two levels of confidentiality. Protective orders with only a “confidential” level allow the parties to review and analyze all documents that are produced but prohibit them from filing the documents publicly in court or providing them to third persons. Protective orders with two levels of confidentiality have the same confidentiality designation that protects the documents from outsiders but add an extra layer of protection — the “highly confidential” designation, known as “attorneys’ eyes only” (AEO).

The author argues for a better balance between ensuring appropriate public access to court documents and protecting a company or individual’s private discussions. In cases with just one level of confidentiality, every document should be automatically designated confidential during discovery. In cases with a “highly confidential” level, every document would be considered confidential at a minimum. Then reviewers would need only look for material that would raise the designation to the higher level.