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As perhaps a statistic here to illustrate the point indicates, attorneys utilizing protective or confidentiality orders in complex litigation matters has become commonplace. The reasons underpinning use of these orders are numerous, including: the need to protect a party’s confidential and proprietary information (e.g., intellectual property), an attempt to expedite the flow of discovery material, or to facilitate prompt and efficient resolution of a dispute. See In re Valsartan N-Nitrosodimethylamine (NDMA), Losartan, & Irbesartan Prod. Liab. Litig., No. CV 19-2875 (RBK/JS), 2021 WL 75258, at *1 (D.N.J. Jan. 8, 2021). 

Unquestionably, there are valid reasons for attorneys to utilize protective or confidential orders to protect client interests. However, it is important to resist the overuse of this mechanism, given the fundamental principle that our judicial system is intended to resolve disputes publicly and without a cloak of secrecy, which can undermine faith in the process. It is the obligation of our courts to remain vigilant in preventing the overzealous confidential designation of documents produced in discovery, and attorneys who subvert this process may find themselves treading a fine line.

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