A significant amount of critical information can be hidden within unfiled discovery. Unfiled discovery can be broadly defined as any document or information exchanged between parties that takes place outside the presence of the courtroom. Protective orders and confidentiality agreements conceal unfiled discovery that may contain information paramount to public health or safety, which undermines the important public policy of court transparency. On one hand, there is a need to protect trade secrets and other confidential business information exchanged through discovery. Of course, a business involved in litigation runs the risk that its confidential business information will be disclosed to the general public, possibly causing the loss of trade secret protection. Sensitive company (non-trade secret) information also deserves judicial protection from disclosure to a direct competitor. On the other hand, there may be data and information contained in the same discovery that could have a negative effect on the public’s interest in health and safety— documents and information that should not otherwise be protected.
The Honorable Craig Smith, et al., Finding a Balance Between Securing Confidentiality and Preserving Court Transparency: A Re-Visit of Rule 76A and Its Application to Unfiled Discovery, 69 SMU L. Rev. 309 (2016)