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Federal judges reject lower standard for granting protective orders.

The Judicial Conference of the United States voted March 14 to reject a proposal by the Advisory Committee on Civil Rules that would have allowed more secrecy in civil cases. In its semi-annual meeting, the 27-member panel rejected an amendment to Fed. R. Civ. P. 26 that would have allowed courts to issue protective orders upon stipulation of the parties alone.

It is unusual for the full conference to reject proposals, especially those submitted by its advisory committees. In fact, many judges on the panel expected the secrecy amendment to pass, citing the amount of effort that had gone into an entire package of rule amendments and the high regard in which the Conference holds the Advisory Committee on Civil Rules. (Linda Greenhouse, Judicial Panel Seeks to Ease Sealing of Civil Suit Records, N.Y. Times, Mar. 10, 1995, at Al.)

One factor that may have contributed to the rejection of the amendment is the very manner in which it was proposed. In October 1993, the advisory committee circulated the set of rule amendments to the public for comment. However, in a highly criticized move, the committee quietly added the secrecy proposal to the package shortly before the Judicial Conference meeting. Not only trial lawyers and public interest groups but also the New York Times criticized this "furtive method of adoption." (Secrecy Rules, Secretly Arrived At, N.Y. Times, Mar. 13, 1995, at A22.) In a letter to conference-head U.S. Supreme Court Chief Justice William H. Rehnquist, ATLA President Larry Stewart decried both the proposal and the method of its introduction.

The advisory committee and proponents of the proposal claim that because judges routinely approve stipulated protective orders, the amendment would only have confirmed existing practice. The amendment would have significantly lowered the current official standard, however, which requires judges to make a finding of "good cause" before sealing court documents. (Secrecy Rule Irks Plaintiffs Bar, Legal Times, Mar. 13, 1995, at 6.)
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Author:Haddad, Samia Christine
Article Type:Brief Article
Date:May 1, 1995
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