CONFIDENTIALITY, PROTECTIVE ORDERS, AND PUBLIC-ACCESS TO THE COURTS

Since the adoption of the Federal Rules of Civil Procedure in 1938, court rules and procedures have evolved to limit abuses of the judicial system's liberal discovery regime. Recently, some have feared that important information uncovered during discovery relating to public health and safety has been secreted away from the public and have claimed that the public also has a right of access to other information obtained during discovery. Within the past two years, reformers have introduced proposals in over thirty states that would revamp the current discovery regime by creating a presumption of public access to both personal and corporate information accessed via discovery and by sharply limiting judges' discretion to issue protective orders under Federal Rule of Civil Procedure 26. In this Article, Professor Miller argues against such reforms. Professor Miller details the development of the current rules of discovery and shows that judicial discretion to manage pretrial processes is a necessary response to the abuse of the liberal discovery rules. He argues that the changes advocated by reformers would wreak havoc on the efficient functioning of the litigation process, and he explores the significant privacy and property interests - both personal and commercial - that would be jeopardized by adopting the reforms. Finally, Professor Miller determines that the reformers have exaggerated the extent of the problems with the current system, and he concludes that conscientious utilization of the system's tools by litigants and judges can ensure that information relating to public welfare will be channelled to appropriate government agencies.