The adoption of the Federal Rules of Civil Procedure worked a revolution in American litigation by introducing broad party-controlled discovery. The framers of those Rules intended broad discovery to facilitate decisions on the merits, and their revolution served as a catalyst for many types of claims in American courts. American discovery also became anathema in the rest of the world, which saw it as too great a cost to pay for better or more accurate litigation results. As American discovery hit full stride in the 1970s, nonparties began to argue that the Federal Rules made all material turned over in discovery presumptively "public" and therefore available to anyone, even though the sole purpose behind broad discovery was for use in the pending litigation. A number of courts adopted this view of the Rules. This article urges that the notion that the Rules make all discovery presumptively public be abandoned. It is not supported by the history or purposes of the Federal Rules, and is contradicted by recent amendments to the rules. It also contradicts the reality of discovery practice, as the Supreme Court recognized over twenty years ago. In an age of increasing intrusiveness via discovery—particularly involving electronically stored information—the idea that all information turned over through discovery should therefore become public threatens privacy interests. Accordingly, the time has come to recognize that discovery is not a Freedom of Information Act for the general public, or for the media.
Richard L. Marcus,
A Modest Proposal: Recognizing (at Last) That the Federal Rules Do Not Declare That Discovery Is Presumptively Public,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss2/4