Discovery — Public Access

A follow up to the January 9, 2007 post (Protective Orders — 2000 Amendment to Rule 5(d)) and a recent publication on this subject (January 2007 Practical Litigator article): Professor Rick Marcus of Hastings College of Law — the Reporter to the Discovery Subcommittee of the Advisory Committee on the Federal Rules of Civil Procedure — has written an interesting article entitled: ‛A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public.“ It was published in 81 Chicago-Kent L. Rev. 331 (2006). Notable quote: ‛The Digital Age will see vastly increased amounts of information and vastly increased opportunities to pry into areas formerly private and secure. Much as that prying may frequently yield information that proves important in resolving cases, it would be retrograde in light of current concerns about personal privacy to contend that everything it produces must be available to everyone because it was made available to a litigant through discovery.“

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