The confidentiality debate.

Is confidentiality in litigation a useful tool for settlement or a cloak of secrecy over information in the public interest? This continuing controversy focuses on issues of privacy, autonomy, and the role of the judiciary.

Secrecy orders and agreements can occur at virtually every stage of a civil lawsuit and can govern a wide spectrum of arguably confidential or private information. At the inception of many lawsuits, stipulated "umbrella" protective orders permit the parties to self-designate discovery as "confidential," to restrict its dissemination, and to require its return or destruction on resolution of the controversy. During the progress of a lawsuit, litigants may request that pleadings, discovery, exhibits, and even docket entries and judicial opinions be filed under seal. Parties may settle civil suits pursuant to a confidentiality agreement that encompasses not only the amount and terms of the compromise, but also the underlying facts on which it was premised. Even court decisions and jury verdicts may be "depublished" or reversed by stipulation as a condition of a post-trial settlement pending appeal.(1)

Secrecy orders and confidentiality agreements have generated vigorous and often heated debate in legal, political, and media arenas since the early 1990s. This article describes the continuing controversy concerning the appropriate use and limits of confidentiality in the conduct and settlement of civil lawsuits.

At the risk of oversimplifying the multi-faceted discussion concerning secrecy orders, the participants in what I call the "confidentiality debate" can be painted with broad brush strokes into two competing camps. On one side are the "confidentiality proponents." These judges, lawyers, and academics highly value the use of confidentiality in achieving settlement and believe that judicial discretion, as it currently exists, can adequately account for and accommodate the competing private and public interests implicated when secrecy issues arise during the course of a civil lawsuit. The confidentiality proponents oppose any attempt to further restrict judicial discretion or party autonomy concerning litigation confidentiality.(2)

On the other side of the debate are what I dub the "public access advocates." These judges, lawyers, and academics believe that the status quo (unfettered judicial discretion) fails to adequately protect the public's legitimate interest in much contemporary civil litigation. They decry court secrecy as contrary to the tradition of public access to judicial proceedings and, more important, as hazardous to public health and safety. The public access advocates seek to further regulate and limit what they perceive as an escalating incidence of secrecy in the courts.(3)

Is there a secrecy crisis in our courts? Public access advocates often cite high-profile products liability and toxic tort cases as evidence of a secrecy crisis that jeopardizes public health and safety.(4) In contrast, confidentiality proponents dismiss these claims as anecdotal, empirically unsubstantiated, and myopically focused on products liability cases that account for only a small percentage of secrecy orders.(5)

The paucity of empirical studies concerning secrecy orders, however, makes it virtually impossible to confirm or deny the existence or extent of any secrecy crisis that may be plaguing our courts. A study by the Federal Judicial Center (FJC)--the research and education agency of the federal judicial system--concerning the extent of protective order activity appears to contradict the claim that federal courts perfunctorily issue stipulated protective orders that endanger public health and safety.

In the three federal judicial districts studied, protective orders were sought in only about 5 percent to 10 percent of all civil cases, most of which were contract or civil rights cases. Further, about half of all motions for protective orders were contested, and about 60 percent of all requests for protective orders were partially or completely denied.(6)

However, the limited scope of the FJC study--which deals exclusively with discovery protective orders in a handful of federal districts--should make one hesitant to draw any firm conclusions concerning the extent of such activity in state courts or the incidence of secrecy activity concerning materials other than unfiled discovery.

Moreover, a cumulative body of even "anecdotal" evidence, particularly if it suggests a threat to public health or safety, certainly justifies a deeper probe of the arguments made for and against secrecy orders.

Subtle arguments

Of course, the dramatis personae of this debate are not the black and white warring factions that the above generalized description might suggest; nor can the disagreements between them fairly be described as entirely prosecrecy or antisecrecy platforms. In actuality, the debate consists of more subtle arguments that reflect broader systemic tensions in the civil justice system--tensions that contribute to and more accurately frame the confidentiality debate.

Settlement v. adjudication. Settlement has replaced adjudication on the merits as the primary focus of most civil litigation today. Indeed, judges actively promote (and sometimes even strong-arm) settlement. This trend reflects, at least in part, the long-standing and increasingly strong public policy favoring the private settlement of disputes.(7)

To many, however, this push toward settlement comes at a significant cost. "Public goods" previously associated with adjudication (such as judicial precedent and public debate) are lost when cases settle and nonparties affected by a dispute are entirely cut out of its resolution.(8)

The value one places on settlement, as opposed to adjudication, affects one's willingness to sanction secrecy as a method of achieving compromise. Confidentiality proponents, for instance, argue that confidentiality facilitates the efficient disposition of lawsuits and, in many cases, is critical to achieving settlement.

Confidentiality, they argue, conserves scarce judicial and party resources by facilitating the cooperative exchange of discovery and by minimizing court involvement. Any reduction in the availability or reliability of secrecy orders, they say, will jeopardize these savings by making litigants reluctant to voluntarily disclose "private" or "proprietary" information in discovery, to establish settlement benchmarks for future related cases, or to settle high-profile claims. In short, confidentiality proponents argue that any additional restrictions upon secrecy orders will hinder the settlement process and further burden an already overburdened court system.

In contrast, public access advocates question how essential confidentiality really is to most settlements and posit that settlements will occur without secrecy given the expensive, time-consuming, and risky alternative of trial. They contend that increased public access to discovery and judicial records enhances efficiency in the long run by avoiding the multiplication of expense and the relitigation of issues in future related lawsuits.

In any event, public access advocates say, the public benefits that flow from increased access to civil proceedings should override mere "housekeeping" concerns like judicial efficiency and resources. While they admittedly cannot wholly eradicate settlements, public access advocates attempt to achieve some of the "public goods" of adjudication by facilitating public access to the increasingly prevalent pretrial and settlement process.

Judicial function. The confidentiality debate reflects a further systemic dispute concerning the primary judicial function. Confidentiality proponents perceive the civil justice system as a public service for private dispute resolution.

Under this view, courts perform primarily a problem-solving function and, accordingly, should be willing to sanction confidentiality if doing so will assist the litigants in this endeavor. Confidentiality proponents contend that, unlike executive or legislative bodies, the courts are not principally charged with disseminating information for public consumption, formulating major social policy, or regulating public health or safety. Efforts to restrict litigation confidentiality or enhance public access to discovery and judicial records obscure the primary judicial task and improperly transform the courts into consumer watchdogs or information clearinghouses.

Such a transformation, confidentiality proponents argue, might motivate some litigants to use courts for reasons less altruistic than public protection or for purposes other than resolution of the dispute at hand--to exploit discovery for use in other cases, to institute strike suits, to circumvent regulatory channels, to solicit business, or to foment adverse publicity. In short, confidentiality proponents fear that antisecrecy reforms will supplant the courts' principal adjudicative role with what previously have been considered mere collateral benefits.

Not surprisingly, public access advocates often adhere to a different conception of the judicial function. They generally perceive courts as public institutions that are accountable to and guardians of a broader public interest. That is, they believe that courts serve interests beyond those of the individual litigants and play a role beyond resolution of the case at hand.

According to public access advocates, courts also explicate public values and protect the interests of nonparties and the public at large. More cynically, these advocates view courts as a last defense when the executive and legislative branches fail (or refuse) to protect the public interest. As representatives and guardians of the general public, courts should oppose even stipulated requests by litigants to shield information that is of public interest or that is relevant to public health and safety.

Public access advocates tend to doubt whether courts are capable of or willing to fulfill this public function. Whether for lack of resources, reluctance to disturb the parties' mutual resolution, or administrative interest in clearing congested dockets, they question whether courts adequately account for or protect the broader public interest in deciding whether to issue, modify, or vacate secrecy orders. Public access advocates support reforms aimed at constricting judicial discretion in this regard and at reducing the level of secrecy in the courts. In this way, similarly situated plaintiffs, future victims, regulatory authorities, and the media might gain timely access to information concerning a defendant's possible wrongdoing, a product defect, or other public hazard.

Party autonomy. Secrecy orders generally provoke little controversy when issued to protect intimate personal information or bona fide trade secrets. Positions vociferously divide, however, concerning secrecy orders that are issued to protect commercial litigants "from annoyance, embarrassment, [or] oppression" or to restrict public disclosure of "confidential research, development, or commercial information" not amounting to a trade secret.(9)

Confidentiality proponents argue that litigants, even commercial litigants, do not abandon their privacy rights when they enter the courthouse doors and that the exceedingly broad scope of discovery necessitates a correspondingly liberal use of protective orders. Public access advocates counter that individuals alone--not corporate litigants--can suffer "embarrassment" necessary to justify a secrecy order and that only a particularized and weighty showing of good cause for confidentiality can override the public's interest in access to information. How one ultimately resolves these privacy questions often reflects one's response to the more fundamental issue of who "owns" a dispute once the parties resort to the publicly subsidized court system for its resolution.

Our party-initiated, party-controlled, and party-centered civil justice system places a high premium on litigant autonomy. Confidentiality proponents tend to adopt this proprietary view of a lawsuit and contend that litigants should be permitted to control and dispose of "their" private dispute in any mutually agreeable manner. This autonomy includes the ability to use stipulated protective orders, sealing orders, and confidentiality orders and agreements when mutually deemed necessary to expedite litigation or achieve settlement. Confidentiality proponents argue that unless parties can rely on confidentiality agreements and stipulated secrecy orders, litigants may either abandon meritorious claims or opt out of the public court system altogether in favor of private dispute resolution.

In contrast, public access advocates often adopt more of a public-ownership stance toward civil litigation. The public creates and heavily subsidizes the civil justice system and, accordingly, has an interest in observing and monitoring that system to ensure its proper functioning. Public access to a major component of that process--pretrial activities and settlement--serves that supervisory function and instills public confidence in "our" court system.

Responses to the debate

The public response to the confidentiality debate varies among jurisdictions and generally takes one of three primary forms. One response argues for the maintenance of the status quo, which places decisions concerning litigation confidentiality in the discretionary and largely unreviewable hands of the trial court. About a dozen states modify this status quo with "sunshine" statutes or rules that legislatively curb judicial discretion concerning secrecy orders. Finally, some courts have imposed flexible but articulated common law limits on their authority to issue, vacate, or modify these orders.(10)

Maintaining the status quo. Most confidentiality proponents adopt an "if it ain't broke, don't fix it" approach to secrecy orders. Courts currently have broad discretion regarding virtually all types of secrecy orders. The elastic and undefined "good cause" standard of state and federal protective order rules governs confidentiality as it relates to discovery.(11) Courts may seal filed materials after using a balancing approach that assesses whether the need for confidentiality outweighs the rebuttable presumption of public access to judicial records and proceedings. Litigants may privately contract for confidential settlements but must show good cause when seeking a confidentiality order concerning that compromise from the court.

Confidentiality proponents argue that litigation confidentiality is an issue best committed to the sound discretion of trial courts, which must flexibly fashion confidentiality orders on a case-by-case, issue-by-issue basis. The flexible "good cause" standard, they contend, already authorizes courts to consider potential public and nonparty interests when deciding whether to issue, modify, or vacate secrecy orders in cases before them. Legislative efforts to channel or restrict this broad discretion unnecessarily jeopardize the intricate balancing of case-specific interests that trial courts perform best.

Sunshine statutes and rules. Public access advocates contend that courts are unlikely to veto the parties' mutual resolution of a controversy and are ill equipped, overworked, or too self-interested to consider the public interest when deciding whether to issue, modify, or vacate confidentiality orders. This distrust of unguided judicial discretion motivated a series of state and federal initiatives, beginning in the early to mid-1990s, to legislate "sunshine in litigation" reforms.

Although all federal(12) and many state efforts ultimately failed, about a dozen states enacted some type of antisecrecy rules. Efforts to enact sunshine laws continue, but at a reduced pace.(13)

Sunshine legislation varies by jurisdiction. Texas, which enacted one of the earliest and most sweeping of these reforms, illustrates the statutory or rule-based response to the confidentiality debate.(14) Texas Rule of Civil Procedure 76a creates a presumption of public access to "court records," which, in addition to filed documents or pleadings, include unfiled settlement agreements and unfiled pretrial discovery that "have a probable adverse effect upon the general health or safety, or the administration of public office, or the operation of government."(15)

The rule prohibits the sealing of these "court records" unless the party seeking secrecy establishes (1) a "specific, serious, and substantial interest which clearly outweighs" the presumption of public access and any adverse impact on public health or safety and (2) the absence of any less restrictive alternative to sealing.(16) This substantive balancing test must be undertaken pursuant to numerous procedural safeguards, including public notice and an open hearing in which any interested person may intervene.(17)

Sunshine legislation in most other states is considerably less ambitious than that of Texas. Many jurisdictions confine their statutes to the sealing of judicial records.(18) Others speak only to confidential settlements involving a government agency(19) or to particular public hazards.(20) Still others narrowly address the sharing of information in specified, related litigation(21) or merely express a hortatory open-records policy.(22)

Notwithstanding the controversy surrounding the enactment of these antisecrecy reforms, they have attracted scant appellate scrutiny or empirical review. It is accordingly difficult to assess whether the reforms have wrought the dire consequences predicted by the confidentiality proponents (perhaps because litigants can still mutually manipulate the guidelines) or the improved public health and safety sought by the public access advocates (perhaps because many secrecy orders simply fall outside the statutory parameters).

Common law sunshine reform. Concerned with the routine endorsement of stipulated confidentiality orders and a perceived escalation in judicial secrecy, some courts have self-imposed restraints on the issuance and modification of secrecy orders. This common law sunshine reform, illustrated by cases like Pansy v. Borough of Stroudsburg,(23) generally requires a court to expressly find and articulate "good cause" for issuing or maintaining a confidentiality order.

In making that assessment, a court must consider public as well as private interests, including whether the information is relevant to public health and safety or is otherwise in the public interest, whether any government entity or officer is a party, whether the arguably confidential information would otherwise be subject to a freedom-of-information request, or whether public access would facilitate discovery sharing in other cases. Although a court may properly consider the litigants' "particularized" reliance on confidentiality, a general interest in encouraging settlement, standing alone, will not suffice. Courts operating in such a common law sunshine regime appear understandably reluctant to approve stipulated confidentiality orders.

Both sides of the confidentiality debate make many legitimate points, and courts need not exclusively embrace one view or the other to deal with confidentiality issues as they arise during the course of a lawsuit. Instead, courts should accommodate the various competing interests, both public and private, in determining whether and when to override the litigants' mutual desire or need for privacy and the strong, institutional policy favoring settlement.

In another, more comprehensive treatment of this subject, I suggest that courts can be guided in this endeavor by a functional approach that uses as its touchstone the primary reason for open courts--the need for public monitoring of the judicial system and its core adjudicative product.(24) The level of "good cause" necessary to sustain the entry and continued maintenance of a secrecy order, as well as the appropriate weight accorded the various competing interests, should vary depending on the nature of the confidentiality order, the information it seeks to protect, and the role those materials play in the court's principal dispute-resolving function.

The discovery process, for example, is (theoretically, at least) a self-regulating process that entails minimal judicial involvement. A great deal of discovery is never filed with, reviewed by, or relied on by the court in its decision making. Accordingly, a threshold showing of good cause might suffice for a stipulated protective order governing unfiled discovery entered at the inception of a lawsuit. In contrast, a more onerous and particularized showing of good cause should be required to justify sealing that discovery once it is filed and used in connection with nondiscovery court proceedings.

Likewise, private factors--such as party autonomy, party reliance, and the preference for settlement--might be accorded controlling weight in connection with some confidentiality issues. But public interests in discovery sharing, public health and safety, or the administration of public office and the operation of government might trump the litigants' need for secrecy in other cases. In the end, the case-specific nature of this balancing approach makes this a task ideally suited and best committed to the sound discretion of the courts.

Roscoe Pound Institute sponsors annual judges' forum

The Confidentiality Debate, by Laurie Kratky Dore, was prepared for the Roscoe Pound Institute's Forum for State Court Judges, presented in Chicago last July immediately before the ATLA Annual Convention.

The annual judges' forum brings judges, legal scholars, and practicing attorneys together to discuss major issues in contemporary jurisprudence. Topics of past forums have included controversies surrounding discovery in the courts, assaults on judicial independence, scientific evidence in the courts, and the American Law Institute's restatement of products liability law.

The Roscoe Pound Institute is a think tank that conducts and publicizes research and programs in support of access to the civil justice system and the right to trial by jury. The institute's goal is to help frame the public debate to advance the role of the civil justice system in redressing injuries to people that are caused by the negligence of others.

For more information about the institute or to obtain copies of past forum reports, contact Meghan Donohoe, the institute's director, by phone at [phone], by fax at [phone], or by e-mail at [e-mail].

ATLA stands firm against secrecy

In May 1989, ATLA's Board of Governors passed a resolution that opposes secrecy agreements and orders. The association encourages courts to refuse to enter secrecy orders, and it urges them not to enforce any secrecy agreement without good cause. Good cause, according to the resolution, is shown when

* the party that requests secrecy has a cognizable legal interest that is entitled to the protection of secrecy;

* the information to be sealed meets "rigorous legal criteria applicable to the trade secrets or privileged information or otherwise justif[ies] the court in exercising its judicial power to restrict the openness of discovery or public access to information"; and

* the disclosure of the information would likely result in clearly defined serious harm.

In instances when good cause is shown, ATLA requests that courts insist that the order or agreement use specific terms to protect competing interests, such as the public's right to know, the rights of claimants involved in other similar actions, and the public's concern for judicial economy. These terms might include limited disclosure to attorneys representing plaintiffs in similar cases and to government agencies or professional disciplinary bodies that agree not to disseminate the information to others.

Secrecy orders also should include stringent safeguards to ensure that full and accurate copies of documents will be available to the appropriate agencies or other litigants in the future; that the order does not prohibit any attorney from representing any other claimant in a similar action against the defendant or others; and that the order does not prohibit reporting to a government agency information necessary to prevent injuries to others.

The association also recommends that courts freely grant petitions for modifications that seek relief from secrecy agreements and orders that were entered into or obtained by a procedure that did not conform to these criteria.

ATLA discourages attorneys from entering into secrecy agreements and urges them to resist court orders that prevent disclosure of documents obtained during discovery to fellow attorneys handling similar cases or to public agencies charged with enforcing safety.

--Jennifer L. Reichert

Notes

(1.) See, e.g., Neary v. Regents of Univ. of Cal., 834 P.2d 119, 121 (Cal. 1992); United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 25 (1994). The U.S. Supreme Court has disapproved of the practice of stipulated vacatur in federal appellate courts, and recently the California legislature significantly constricted the power of California appellate courts to accept a stipulation to reverse a judgment. See CAL. ANN. CODE CIV. P. [sections] 128(a)(8)(B) (West 1999) (effective Jan. 1, 2000). See generally Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 U.C.L.A. L. REV. 1471 (1994).

(2.) See, e.g., Richard L. Marcus, The Discovery Confidentiality Controversy, U. ILL. L. REV. 457 (1991); Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427 (1991).

(3.) See, e.g., Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 TEX. L. REV. 643 (1991); James L. Gilbert et al., Negotiation and Settlement: The Price of Silence, TRIAL, June 1994, at 17.

(4.) See generally Richard A. Zitrin, The Case Against Secret Settlements (Or, What You Don't Know Can Hurt You), 2 J. INST. FOR STUDY LEGAL ETHICS 115 (1999) (citing cases involving silicone-gel breast implants, the prescription drugs Zomax and Halcion, the fungicide Benlate, the Shiley Heart Valve, and GM pickups equipped with side-mounted gas tanks).

(5.) See Miller, supra note 2, at 480.

(6.) See ELIZABETH C. WIGGINS & MELISSA J. PERCHERSKI, FED. JUD. CTR., PROTECTIVE ORDER ACTIVITY IN THREE FEDERAL JUDICIAL DISTRICTS--INTERIM REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES (1994) (examining protective-order activity from 1990-1992 in the District of Columbia, the Eastern District of Michigan, and the Eastern District of Pennsylvania).

(7.) See, e.g., Alternative Dispute Resolution Act of 1998, 28 U.S.C. [subsections] 651-58 (1998) (mandating that federal courts authorize the use of alternative dispute resolution in all civil cases); FED. R. APP. P. 33 (authorizing appellate settlement conferences).

(8.) David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619 (1995); see also Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984); Marc Galanter & Mia Cahill, Most Cases Settle: Judicial Promotion and Regulation of Settlements, 46 STAN. L. REV. 1339 (1994).

(9.) FED. R. CIV. P. 26(c).

(10.) Yet a fourth response advocates more stringent ethical limits on an attorney's participation in certain secrecy agreements. See Laleh Ispahani, The Soul of Discretion: The Use and Abuse of Confidential Settlements, 7 GEO. J. LEGAL ETHICS 111, 12830 (1992); see also Zitrin, supra note 4, at 116.

(11.) See FED. R. CIV. P. 26(c). Most states have protective order rules patterned on the good cause standard of the federal rules.

(12.) In 1993, 1994, and 1995, three substantially identical versions of a Federal Sunshine in Litigation Act failed to become law. See S. 1404, 103d Cong. (1993); 140 CONG. REC. 7719 (103d Cong. Amend. 1930 to S. 687) (1994); S. 374, 104th Cong. (1995); see also Federal Court Settlements Sunshine Act, H.R. 3803,102d Cong. (1991).

(13.) Most recently, California and Illinois unsuccessfully tried to enact sunshine-in-ligation legislation. See S.B. 1254 1999-2000 Gen. Sess. (Cal. 1999); H.B. 3239, 91st Leg., Gen. Sess. (Ill. 1999).

(14.) Florida enacted a similarly broad Sunshine in Litigation statute. See FLA. STAT. ANN. [sections] 69.081 (West 1998).

(15.) TEX. R. CIV. P. 76a(2)(b)-(c).

(16.) TEX. R. CIV. P. 76a(1)(a)-(b).

(17.) TEX. R. CIV. P. 76a(3), (4). For a discussion of the history and operation of Texas Rule 76a, see Doggett & Mucchetti, supra note 3.

(18.) See DEL. CH. CT. R. 5(g); DEL. S. CT. R. 9(bb); GA. SUPER. CT. R. 21; IDAHO CT. R. 32(f); IND. CODE ANN. [sections] 5-14-3-5.5 (West 1989); MASS. UNIF. R. IMPOUNDMENT 7 (1986); MICH. CT. R. 8.105(D) (Law. Co-op. 2000); N.Y. CT. R. [sections] 216.1 (2000).

(19.) See ARK. CODE ANN. [sections] 25-18-401 (Michie 1999); N.C. GEN. STAT. [sections] 132-1.3 (1999); OR. REV. STAT. ANN. [sections] 30.402 (1997).

(20.) See ARK. CODE ANN. [sections] 16-55-122 (Michie 1999) (environmental hazards); WASH. REV. CODE ANN. [sections] 4.24.611 (West 2000) (products liability or hazardous substance claims).

(21.) See VA. CODE ANN. [sections] 8.01-420.01 (Michie 1999).

(22.) See ARIZ. S. CT. R. 123(c)(1) (West Supp. 1999).

(23.) 23 F.3d 772, 787-92 (3d Cir. 1994) (identifying a nonexhaustive and nonmandatory set of private and public "good cause" factors).

(24.) See Laurie Kratky Dore, Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 NOTRE DAME L. REV. 283 (1999).

For further reading

Philip H. Corboy, Secret Settlements, TRIAL, June 1993, at 122.

Lloyd Doggett, Keeping Court Records in the Open, TRIAL, July 1990, at 62.

James L. Gilbert, Francis H. Hare Jr. & Stuart A. Ollanik, The Price of Silence, TRIAL, June 1994, at 16.

Morton Mintz, Dangers Insurance Companies Hide, TRIAL, Mar. 1991, at 64.

Eugene I. Pavalon & Thomas G. Alvary, Protective and Secrecy Orders, TRIAL, Mar. 1991, at 110.

Maja Ramsey, Justine Durrell & Timothy W. Ahearn, Keeping Secrets with Confidentiality Agreements, TRIAL, Aug. 1998, at 38.

Laurie Kratky Dore is a professor at Drake University School of Law in Des Moines, Iowa. [C] 2000, Laurie Kratky Dore.