Message: PACER Nikon et al
LAWYERLONG , I also believe more settlement are in progress ,may be with the rest of 8 defendant. It looks they are using PROTECTIVE ORDERS in order for further cofidentiality settlement . we are going to see several settlement news fairly soon !
CONFIDENTIAL SETTLEMENT S
A White Paper
A White Paper
There is a legitimate basis for distinguishing between confidentiality issues a t
earlier stages of litigation and confidential settlement agreements . There is little to suggest that existing procedures under Federal Rule of Civil Procedure 26(c) and its stat e
analogues are inadequate to protect both the public interest and the interests of the partie s
during litigation . Given this, statutes and rules that require "public harm" determination s
during litigation, when the existence of that public harm is at the heart of the litigatio n
itself, are inherently problematic . These statutes require a court to rule when discover y
on the ultimate issue may be incomplete or inconclusive, and ask a court to apply a lega l
standard that may be different than the standard applied to the ultimate issue . At a
minimum such statutes result in burdensome evidentiary hearings of the sort that occur i n
Texas, without anything to suggest that the public is any better protected than it would be
under the traditional Rule 26(c) approach .
By contrast, when parties have reached a mutually agreeable settlement, there is a defined universe of documents or information . Unless the settlement falls though, there is little danger that a decision on a protective order will unfairly prejudice resolution of
the ultimate issues in the case . It is not surprising that the "second generation" of
confidentiality legislation focuses solely on settlement, rather than trying to use the same
statutory techniques to manage both pre- and post-settlement confidentiality.
earlier stages of litigation and confidential settlement agreements . There is little to suggest that existing procedures under Federal Rule of Civil Procedure 26(c) and its stat e
analogues are inadequate to protect both the public interest and the interests of the partie s
during litigation . Given this, statutes and rules that require "public harm" determination s
during litigation, when the existence of that public harm is at the heart of the litigatio n
itself, are inherently problematic . These statutes require a court to rule when discover y
on the ultimate issue may be incomplete or inconclusive, and ask a court to apply a lega l
standard that may be different than the standard applied to the ultimate issue . At a
minimum such statutes result in burdensome evidentiary hearings of the sort that occur i n
Texas, without anything to suggest that the public is any better protected than it would be
under the traditional Rule 26(c) approach .
By contrast, when parties have reached a mutually agreeable settlement, there is a defined universe of documents or information . Unless the settlement falls though, there is little danger that a decision on a protective order will unfairly prejudice resolution of
the ultimate issues in the case . It is not surprising that the "second generation" of
confidentiality legislation focuses solely on settlement, rather than trying to use the same
statutory techniques to manage both pre- and post-settlement confidentiality.
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