Potentially Serious Exposure of Redacted Confidential Information via ECF

Don Cowan of Raleigh, North Carolina, has identified a confidentiality glitch in the federal electronic case filing system. If a non-party files a motion (e.g., to quash a subpoena or to intervene) and thereby becomes a party for ECF purposes, that person or entity may immediately have access to all material electronically filed in the action, including confidential information. Some hypotheticals from Don: “If you sue former employee A for stealing trade secrets, and subpoena Company B (A’s competitor) to see if it received the secrets, when Company B's lawyers file a motion to quash, they will have access to everything filed under seal in the action. If a newspaper moves to intervene in any lawsuit to ask that proceedings be held in open court, its lawyers will also immediately have access to everything filed under seal.” It is necessary to be vigilant to prevent disclosure in these circumstances by immediately or proactively identifying it to the Court.

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