Confidentiality agreements have become a ubiquitous feature of commercial litigation. This is due, in part, to the expansion of e-discovery and the exchange of ever-increasing numbers of documents. Pre-production review of the thousands or tens of thousands of emails involved in the average commercial case create significant challenges, both in terms of cost to the client and the tight discovery deadlines frequently imposed by courts. A confidentiality agreement, embodied in a stipulated order, can be a convenient way to expedite initial production of documents. It can reduce concerns about the risks of inadvertent disclosure of sensitive information potentially allowing pre-production review to proceed more quickly.

The frequent use of these agreements and their benefits can lead to complacency among counsel. Many agreements are lightly negotiated and quickly implemented early in the litigation without full consideration of their potential impact on the attorney-client relationship and the discovery process. They are worth a thoughtful approach.