Continued from Tuesday, January 8, 2019.
The idea behind the law is simple in this regard. Every court so far as is known recognizes that before a judge can allow evidence to be concealed, the party asking to conceal that evidence should show good cause to conceal it. Without a showing of good cause, concealment is not allowed during discovery of the evidence, or afterward. Sometimes good cause is shown for concealing a part of the evidence, or displaying it publicly in a way that minimizes harm to someone if it were completely, nakedly exposed to public view.[1]
This way of dealing with confidentiality or secrecy, however, requires the lawyers and their clients to clearly identify each piece of evidence that they want to conceal, document by document. Or, in very large cases, the lawyers and their clients are required to clearly identify the categories or sets of information that they want to conceal, and show why. That is what a showing of good cause has required in lawsuits in the United States, and it is what a showing of good cause should require in lawsuits now.
The idea is that not a single piece of evidence should be left to concealment by chance, and judges should be enabled to review the claim to concealment and compare the claim to each piece or set of evidence to see if good cause has been shown to conceal it.
This way of doing things can make it expensive and time-consuming to discover evidence unless the parties truly have good cause that they can show to a judge. Many large businesses and wealthy individuals have an incentive to keep some or all of their dealings a secret. This is an incentive that most other people do not have, or if they do have the incentive to conceal evidence, it is too expensive to contest all but a relative handful of evidence being concealed if they actually have to show good cause to keep evidence secret.
Some say that it can even be expensive in very large cases to group evidence in categories and submit or contest good cause for keeping broad categories of secret evidence protected and concealed.
The solution? I suggest one right here, right now. Enforce the law.
The cure is close at hand. It is for judges and lawyers to follow the law as it exists right now. To say again, the law requires that good cause must be shown in order to keep information in court files secret. Judges and lawyers should not be able to change the law by their agreements. If they were required to follow the law instead, and show good cause for concealing evidence, then judges and lawyers would profit from the results. So would the public.
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[1] See Federal Rule of Civil Procedure 26(c), which provides in part:
The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
[Boldface added.]
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