tag:blogger.com,1999:blog-36762711.post2191720016458602775..comments2023-11-03T06:14:58.449-04:00Comments on Drug and Device Law: Invisibility and the CourtsRachel B. Weilhttp://www.blogger.com/profile/02251124525069607080noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-36762711.post-70934326532362166652012-02-24T22:38:18.682-05:002012-02-24T22:38:18.682-05:00Thanks for the comment Max. You raise an interest...Thanks for the comment Max. You raise an interesting issue, and an important distinction that we thought about discussing in the post but didn’t. <br /><br />There is a difference between hiding the very name of a litigant – the person who chose to use the courts – and the protection of certain information during discovery. Anonymity isn’t part of the rules. As we mentioned in our post, nothing in the federal rules contemplates anonymous parties. In fact, they contemplate the opposite. <br /><br />On the other hand, federal rules such as 26 and 45, local federal rules and state court rules properly provide for protection and sealing of certain documents during discovery. These protections go beyond trade secrets to business sensitive information, and other situations. Documents produced or held by regulatory agencies or that reveal their ongoing deliberative process are often protected. Scientific information that has not yet been fully processed or analyzed is often protected. Proprietary business information of the parties is often protected. Proprietary business and personal information of third-parties can be protected. And of course we have all been involved in litigation in which medical documents from plaintiffs have been given confidentiality protection during discovery. Many of these protections arise not only from the court rules but by statute. <br /><br />Now, as we all know, there is no set rule saying that this document is protected and that one is not. There are balancing tests that courts consider (as the Doe v. Merck court did even regarding anonymity). And when documents are not part of proceedings at the courthouse, such as a trial or a filed dispositive motion, the public’s interest in disclosure is much, much less. So under this balancing, we find certain confidential documents – both from defendants and plaintiffs – protected during discovery. <br /><br />But it is a whole other thing for the party itself to be hidden. When the very identity of the person/company using our courts is at issue, it seems to us – and it has seemed so with the courts – that the public’s interest in disclosure is quite high. This is particularly appropriate when it’s the party who sought out the courthouse and started the litigation. So, while there is still a balancing that a court performs when considering petitions to proceed anonymously, the balancing is weighted heavily toward disclosure – as it should be. Moreover, as we discussed in our post (and as the court discussed), there are fairness issues when one side can be invisible but the other cannot. And we don’t believe, as the NJ Court said, that this balance should be tipped toward anonymity on the basis of a party experiencing some embarrassment. It has to be something much more.John J. Sullivanhttps://www.blogger.com/profile/01479637903241019239noreply@blogger.comtag:blogger.com,1999:blog-36762711.post-66892276147837096712012-02-24T08:00:21.912-05:002012-02-24T08:00:21.912-05:00I assume you're opposed to the use of confiden...I assume you're opposed to the use of confidentiality agreements and protective orders, too. You'd surely agree that, if we're putting everything out in public about the plaintiff, then fairness demands all documents held by a defendants that don't reveal a trade secret and are arguably relevant to the case should be made fully public.<br /><br />Right?Max Kennerlyhttp://www.litigationandtrial.comnoreply@blogger.com