Stipulated protective orders, or SPOs, seal discovery information in a civil lawsuit from the public and have become increasingly common in recent decades. Federal Rule of Civil Procedure 26(c) permits these orders if the parties show “good cause” to the judge in the case.
But in a new paper in the Duke Law Journal using state-of-the-art machine learning techniques, Professor Jonah B. Gelbach and co-authors Nora Freeman Engstrom, David Freeman Engstrom, Austin Peters, and Aaron Schaffer-Neitz show that not only are these orders frequently granted, they’re rarely subjected to the type of judicial scrutiny the rule requires — hiding potentially deadly defects and abuse from the public.
The article, the first comprehensive examination of SPOs in federal litigation, analyzes more than 2 million cases. That analysis found that in cases where a protective order was issued, approximately 45% are the product of a jointly-filed motion — far more than previous estimates and growing. The authors estimate that 95% to 97% of these orders are granted, and more than half the judges in the dataset who considered at least 25 SPOs approved all of them.
The team bolstered their quantitative analysis with a qualitative review of 300 randomly selected grants and 100 randomly selected denials, which further supported the idea that judges are essentially a rubber stamp in most cases.
In the types of product liability suits where these orders are used, court-ordered secrecy can have major real-world consequences. Gelbach and his co-authors write that the list is long, from the faulty ignition switch on the Chevrolet Cobalt to the drugs Oxycontin and Zyprexa.
While opponents of greater transparency in litigation consistently assert these orders are rare, these results suggest they’re more common than previously thought, the group writes.
“Our findings add another example of how adversarialism may systematically fail to achieve key systemic ends. After all, there is no constituency for disclosure in a system in which parties interested in confidentiality place arguments before a passive judge who does not consider the public interest,” they write.
In economic terms, they add, there is a negative externality — a harm borne by persons whose interests the stipulating parties can freely ignore — and it’s accumulating.
“The adversarial structure of the American civil justice system might leave it ill-equipped to promote anything resembling an optimal level of openness,” they write. “Indeed, when a stipulated PO is at play, the plaintiff is not pitted against the defendant. By definition, the plaintiff and defendant, jointly, are pitted against the rest of us.”