Protective Orders — 2000 Amendment to Rule 5(d)

An article entitled ‛The 2000 Amendments to the Federal Rules of Civil Procedure & Evidence: A Preliminary Analysis“ (available on the Recent Articles page) observes that the 2000 amendment to Federal Rule of Civil Procedure 5(d) undercut a prior rationale for public access to discovery materials because it precluded application of the ‛judicial record“ doctrine in most circumstances. In an interesting decision entered on November 14, 2006, Judge Gerard Lynch of the Southern District of New York accepted that premise but further reasoned that: ‛[W]hile documents exchanged in discovery may not presumptively be matters of public record, that does not mean that ordinary discovery materials must be deemed confidential.“ Levy v. INA Life Ins. Co., 2006 U.S. Dist. LEXIS 83060, at *3 (S.D.N.Y. Nov. 14, 2006). My article stresses the importance of protective orders under the present version of the Rule, but Judge Lynch holds that the exercise of judicial discretion may result in denial of such an order: ‛Particularly where specialized counsel or repeat litigation players are involved, it is unrealistic to attempt to limit the use of discovery materials to a single case. Where the party seeking a protective order does not demonstrate the materials to be actually sensitive, courts are not obliged to enter orders that limit the freedom of opposing counsel and require the court to police future use or public disclosure of materials obtained in discovery.“ Id.

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