I’m sitting outside a courtroom in Texas where I have left the proceedings rather than risk the assertion that I learned confidential information offered as testimony in open court. Sounds crazy, I know; but when lawyers agree to protective orders and judges enter them (then order that they apply to anyone sitting in the courtroom, signatory or not), judges and lawyers tend not to consider what impact those orders have on persons not parties to the case. Just as there must be a right to protect truly privileged information and trade secrets, there must be a corollary right not to take on the burden and risk of protecting such information when you neither seek nor require disclosure of confidential data. We have a right not to know.
Most of my non-teaching work is as a court-appointed special master; so, I must be vigilant to guard against actions that could serve to disqualify me. The balance of my time is spent consulting with lawyers and courts about the preservation, collection, processing, search and production of electronically-stored information. Some of that entails explaining why certain forms of production are sought and how such requests can be met without undue burden or cost. For example, I’ll explain why a TIFF image of a spreadsheet is not a sufficiently complete or usable form of production versus production of a native .XLSX file. I might show the court what user-added content will be stripped away when a PowerPoint presentation is flattened or when a Word document contains embedded comments and tracked changes or ties dynamically to external data. Simple stuff, to most of my readers, but challenging to those less steeped in the fundamentals of e-discovery.
Though I might occasionally need to know detailed information about the structure of a database; most times, I can address database production issues without knowing the schema down to the keys and never down to the code. I rarely need the confidential data stored within a database. If I did, and it were truly confidential, I can usually get what I need from an anonymized or redacted sample of an export.
Protecting other people’s secrets is work, and it carries consequences when you fail. So, I don’t want to know genuine trade secrets or PII if I don’t have to know it, because I don’t want to be obliged to segregate it, account for it, protect it and (ultimately) be bound to return or eradicate it. Too, I don’t want to be disqualified because parties who’d like to torpedo my appointment as a master or my engagement as an expert can claim that I know the recipe for their “secret sauce.”
I have the right to say, “NO SECRET SAUCE PLEASE!” (Everyone knows it’s just mayo and Thousand Island dressing anyway; i.e., your spreadsheets, Word documents, e-mail messages and PowerPoint presentations are not in any forms more proprietary and secret than anybody else’s). Contents, maybe. Forms, no way.
But the right to say, “no secret sauce” is complicated by protective orders that allow parties to designate anything and everything as confidential and, worse, to do so after the information has been shared. Even if they promise, “we can share this because we don’t regard it as confidential,” the protective order may allow them to change the designation to confidential and claim that, no matter how scrupulous you were in seeking to avoid receiving confidential data, you are now tainted by the disclosure and bound by the terms of the protective order.
You might wonder, “Doesn’t the protective order allow you to challenge the designation of the data as confidential, if it’s not really confidential?”
Typically, protective orders permit such challenges; but, that right is usually reserved to the parties and counsel in the case. It doesn’t give witnesses any rights. Experts have no standing, and even if you were afforded standing in the court issuing the order, it won’t do you any good in the next tribunal. The next Court isn’t going to want to delve into the confidentiality—real or imagined—of evidence in another forum, sometimes years after the matter giving rise to the order has concluded. Too, you can be certain the lawyers in the concluded case aren’t going to litigate the issues for you, even if the first court retained continuing jurisdiction. It’s up to the expert to keep his or her head out of that noose; yet, it’s awful to have to say, “I can’t agree to be bound by that protective order.” It frustrates the client, evokes little sympathy from the Court (it is, after all, the Court’s own order you are declining to embrace) and will be gleefully exploited by the other side.
But, if you are an expert or hope to serve as a special master, you may have no choice but to push back if you wish to avoid visiting even greater headaches on future litigants or closing the door to future engagements and appointments.
I know some of my colleagues will read this thinking, “my experts sign these things all the time, and no issues arise.” If that’s so, congratulations! But, if you want experts who are the sort to take these responsibilities seriously, then tell them there’s a protective order in place right from the start. Have them read it. Know that when it comes to protective orders, you can’t agree to bind the expert to whatever you wish. What serves your needs may not be in line with your expert’s professional obligations, and you may lose your expert.
So, while the takeaway for some might be, Hire experts who will sign anything you put in front of them,” I hope the takeaway for most is, “Be cautious about the scope and applicability of protective orders, and be wary of their potential for abuse.” Fulfilling the obligations of a protective order is a serious and consequential responsibility. It shouldn’t be taken on lightly, and if you don’t really need to receive confidential information, it shouldn’t be taken on at all.