Conclusion
I am impressed by Professor Stuart’s points and suggestions, but would like to hear more comments on her proposed framework. I hope her article and this blog series starts Sedona-style dialogues on the subject in many fora, not just The Sedona Conference®. See eg. The 13th Annual Sedona Conference Institute Program on eDiscovery: Protecting Privacy, Confidentiality, and Privilege in Civil Litigation. This March 2019 Sedona Conference event in Charlotte was co-chaired by the well-known, retired Judge Andrew Peck and Andrea L. D’Ambra and had a great faculty. I would like to hear Sedona’s input concerning Professor Stuart’s article and proposals. Also see the 2018 publication, The Sedona Conference Data Privacy Primer. This Data Privacy Primer was a project of The Sedona Conference® Working Group Eleven on Data Security and Privacy Liability and was first published for comments in January 2017. Much has changed since then, not only the shock and disruption of Covid and politics, and the ever accelerating advance of personal technologies and social media, but especially the recent, radicalizing shock of Dobbs.
Let’s hope that all serious students, practitioners, judges and scholars of the law, including Sedona, will revisit the discovery privacy issues and hear from the next generation of experts like Professor Stuart. This time I suggest groups narrow their focus to discovery as a sub-set of privacy. Let’s look at the trees, not just the forest. That is what working lawyers like me really need right now. Sedona and others may also want to have another group work on post-Dobbs personal privacy activity rights. That involves serious political issues way beyond my pay grade, and so I have no recommendations, aside from saying that The Sedona Conference® would be a good place to try and reach legal sanity. So too would my current personal favorite, the EDRM. Let’s all cooperate and try to figure this out together.
Losey pondering yet another question “way above his pay grade”
Pleading for further rules revisions is, however, within my limited wheel-house. Even without the further advice of scholars and experts, I am ready to commit to Professor Stuart’s admittedly reluctant suggestion that Rule 26(b)(1), Frankenstein or not, be revised once again, to include Privacy as a factor in proportionality analysis. You could get fancy with the revisions, but I am presently inclined to go with a short and simple solution and just include the words “the privacy considerations” on the 26(b)(1) list:
. . . and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, the privacy considerations, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Good work has been accomplished in cutting the costs of privilege logs, but now we should focus on the related, but different issue of privacy protocols for other types of confidential information in civil discovery. (See eg. the work of the EDRM on privilege logs). Also see the excellent 2015, The Sedona Conference Commentary on the Protection of Privileged ESI. The Sedona publication discusses four general principles concerning privileged communications. The fourth principle is easily applicable to proportional privacy protection in civil discovery. It states “Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.” The Sedona Conference Commentary on the Protection of Privileged ESI.
It is time to conclude and move beyond the privilege log projects and focus on related issues, other privacy protection concerns in discovery, including redaction protocols, court sealing protocols, filter team protocols, and confidentiality agreements and orders. We should look for ways to protect privacy rights, including the rule tweak here suggested. But in so doing we should be careful to control the costs. We do not want to create an accidental Frankenstein monster that eats up more time and money, not less. There are other many possibilities to both protect privacy and control costs. One might be expanding the scope of Evidence Rule 502 to include all types of confidential ESI within quick peek protection. Others solutions might be more technological in nature.
Privacy in discovery is a real problem in both civil and criminal litigation. See eg. In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). It requires our immediate attention, discussion and early response. Continued delay in addressing the discovery issues, the costs, benefits and burdens, will only make the situation worse. I come back to the proactive, stitch in time saying that I have analyzed before in the context of litigation. Professor Stuart’s article has started the stitching in a scholarly, but accessible manner. We should be grateful to her for that and continue the important work.
