Producing Confidential Documents

In business litigation cases, the parties are often required to produce documents that contain confidential and sensitive information. For instance, financial data and strategic planning information may be relevant to the claims or defenses asserted in a case. Does this information become ”public” because it is disclosed in litigation. The answer is yes, but. Information disclosed may very well become public, and indeed easily accessible by a simple Google search, if the litigants do not take precautions to keep it confidential. However, litigants usually do take those precautions by entering into written confidentiality agreements, which may also be entered as confidentiality orders by the judge presiding over the case. As a general matter, confidentiality agreements require a litigant to use confidential information solely for purposes of the litigation, not to disseminate the information, and to return or destroy the information when the litigation concludes. If you are going to produce confidential information, you should have the confidentiality agreement in place before you do so. You can’t “un-ring” a bell. As the Rules of Civil Procedure continue to evolve with the changing times, I believe that at some point, confidentiality orders will be the rule, with litigants having to agree to lift confidentiality as opposed to impose it. But until then, it is important to protect yourself and your business from the mass disclosure of confidential, sensitive or proprietary information.