Commercial Litigation and Arbitration

Limitations of Attorneys’ Eyes’ Only Protective Orders

From Schiller v. City of N.Y., 607 F.3d 923 (2d Cir. 2010), explaining why a protective order with attorneys’-eyes’-only protection was an inadequate safeguard to protect intelligence reports (“Field Reports”) compiled by the NYPD:

A. Disclosure on an "Attorneys' Eyes Only" Basis Is Inadequate

The disclosure of confidential information on an "attorneys' eyes only" basis is a routine feature of civil litigation involving trade secrets. See Fed. R. Civ. P. 26(c)(1)(G) ("The court may, for good cause, issue an order to protect a party . . . including . . . requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way . . . ."). The purpose of this form of limited disclosure is to prevent a party from viewing the sensitive information while nevertheless allowing the party's lawyers to litigate on the basis of that information.

[Footnot 12] In addition, the disclosure of information on an "attorneys' eyes only" basis is occasionally a feature of criminal cases in which the government is required to disclose classified national security information in order to protect "'a criminal defendant's right to present a meaningful defense.'" *** The use of the procedure in those cases does not show that it is appropriate here.

As an initial matter, when classified material is disclosed on an "attorneys' eyes only" basis in criminal trials, a defendant's attorneys must "possess[ ] the security clearances necessary to review and inspect such material." *** Here, plaintiffs have made no showing that any of the fifty attorneys representing them has a security clearance — or other form of credential — vouching for their trustworthiness. Of course, we have no basis to question — and do not question — the integrity or competence of the attorneys involved in this litigation. But we are not able to make blanket statements about the reliability of counsel merely based on their membership in the bar, for the record of the bar in such matters is not without blemish. Indeed, some attorneys have deliberately disclosed confidential information. See, e.g., United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). Moreover, mere negligence of an attorney — rather than deliberate malfeasance--could result in the unintended disclosure of confidential information.

Furthermore, we are presented here with a discovery request by a plaintiff in a civil action, not a defendant in a criminal action. We have no trouble concluding that a plaintiff's right to discovery in a civil action is less fundamental than a criminal defendant's constitutional right "'to present a meaningful defense.'" ***

In any event, as we explain in Part IV below, the disclosure of information on an "attorneys' eyes only" basis is an appropriate measure insofar as the information must, in fact, be disclosed. It is, nonetheless, a deeply flawed procedure that cannot fully protect the secrecy of information in this case; it merely mitigates — to some degree — the possibility of unauthorized disclosure. Thus, the fact that "attorneys' eyes only" disclosure has been used as a mitigating procedure in criminal cases — or in other civil litigation — does not alter our analysis.

Even if the "attorneys' eyes only" procedure works in some commercial litigation, as well as some criminal cases, *** the consequences of accidental disclosure are too severe to employ the procedure here. If a party in a commercial suit obtains a competitor's trade secrets, at worst the party will gain an unfair financial advantage over his competitor. Though such an injury is serious, it involves money, not public safety, and it can usually be remedied by an injunction or money damages. Here, however, accidental disclosure of the Field Reports risks undermining important NYPD investigatory procedures and thereby endangering the safety of law enforcement personnel and countless New York residents. Not only is that injury more severe, it is far more difficult to remedy.

Furthermore, when a party in a commercial suit gains access to trade secrets and uses them to his advantage, it is, in many cases, obvious that an unauthorized disclosure has occurred. That is not the case, however, for confidential law enforcement information, for there is often only ambiguous evidence that an undercover operation had been undermined — an unexpected event impairs an investigation, an informant is suddenly isolated from his collaborators, or a once-valuable source begins to provide disinformation. Thus, if confidential law enforcement information is disclosed on an "attorneys' eyes only" basis, the police may never know if their undercover operations have been compromised by an unauthorized disclosure of that information.

What is more, when a party in a commercial suit profits from an unauthorized disclosure of trade secrets, his competitor often has little trouble identifying the source of the disclosure. Yet it is, by contrast, far more difficult to identify the source of an unauthorized disclosure of law enforcement information. ***

Share this article:


Recent Posts