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  • Writer's pictureKirk T. Hartley

State AppellateJudges Hear a Proposed Refined Framework for Analysis of Confidentiality Agreements

A new item at SSRN is a paper on analytical frameworks for thinking about confidentiality agreements in litigation. It's interesting in part for the framework and in part because it was "presented at the 2020 Forum for State Appellate Court Judges, an annual forum organized by the Pound Civil Justice Institute."

The paper is online here. The paper is worth reading. The abstract is as follows. Hat tip to Steve Hedley at Private Law Theory for flagging the article.

Confidentiality in the Courts: Privacy Protection or Prior Restraint?

24 Pages Posted: 13 Aug 2020

Sergio J. Campos University of Miami School of Law

Date Written: July 11, 2020

Abstract In civil litigation courts often deal with information that is subject to a previously imposed restraint on the ability of a court or others to use the information. Such “evidentiary prior restraints” arise most prominently in settlement agreements, which may include nondisclosure provisions that prevent information concerning the settlement from being used by parties to the agreement. But evidentiary prior restraints can also arise from prior court action, as when parties seek information subject to a protective order or sealing order made by a different court. Although evidentiary prior restraints have received great attention given recent controversies concerning sexual harassment, products liability, and other areas of the law, the issue has not received much attention from scholars. This essay examines the effects of evidentiary restraints on the enforcement function of civil litigation. In general, the essay concludes that privacy interests alone do not justify the enforcement of litigation restraints because these privacy interests can, and often do, prevent courts from accurately assessing the liability of the parties. Moreover, such restraints prevent market pressure from regulating the conduct of market participants, leading to more harm. Nevertheless, the essay does discuss situations when the protection of privacy interests may aid, rather than hinder, enforcement objectives. Accordingly, the essay concludes that more empirical research should be done to guide courts in determining when evidentiary prior restraints should not be enforced.

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