Gustavo Ribeiro (Campbell University – Norman Adrian Wiggins School of Law) has posted Discovery Secrecy as Market Failure on SSRN. Here is the abstract:
Underlying our adversary system is a free-market conception of adjudication, according to which legal fact-finding is best left to the invisible hand of opposing parties acting in their self-interest. This Article argues that current unprecedented levels of secrecy discovery secrecy amount effectively to a market failure. Parties have incentives to keep litigation information away from public view. Courts have adopted a laissez-faire approach to discovery by delegating confidentiality determinations to self-interested parties. The result is the erosion of public benefits commonly associated with the adversary system.
First, excessive secrecy fuels the distortions that excessive partisanship and cognitive biases have on the truth-seeking function of the adversary system. Second, unprecedented secrecy in discovery threatens the adversary system’s role in upholding human dignity, understood both as respect or status. Third, historical levels of secrecy weaken the adversary system’s promotion of liberal democratic values, such as transparency and self-government.
Market failures call for intervention. This Article proposes how courts may help undo this predicament. If the distortions in the adversary system are to be corrected, courts must stop rubber-stamping confidentiality agreements. Instead, they must reassert their authority to oversee discovery by carefully balancing legitimate needs for confidentiality against countervailing public interests in the information obtained during discovery, whether or not the parties oppose confidentiality. Courts should also consider bringing back, perhaps even expanding, filing requirements for certain discovery materials.