Technological Advancements Complicate Confidentiality

The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.

This issue most recently came up in the Eastern District of Pennsylvania, where the district court judge denied a motion for sanctions when a plaintiff’s attorney forwarded excerpts from a deposition transcript to hundreds of other attorneys in his practice area. In Stolarick v. KeyCorp, et al., the plaintiff’s counsel agreed that a deposition transcript would be deemed confidential until a formal protective order could be entered with the court.

No formal confidentiality order was entered before the plaintiff’s counsel forwarded excerpts from the transcript to hundreds of fellow bankruptcy attorneys seeking input on how to discredit the witness’ testimony in related litigation. In responding to the motion alleging a violation of the confidentiality agreement, plaintiff’s counsel argued that he only agreed to protect the confidentiality of the documents marked as exhibits, rather than the testimony itself. The judge apparently agreed, denying the motion without issuing any opinion.

While the court did not explain its reasoning for denying the motion, it should nevertheless be taken as a warning that the ease with which information can now be shared means confidentiality is far more difficult to maintain. Particularly in the case of institutional clients who tend to designate particular employees as corporate representatives, counsel from across the country should be expected to seek out transcripts from other cases. Many times, once one party obtains a transcript or document in his case against a well-known defendant, it will be published online with the specific intent that other litigants use it in their own cases.

Admissibility issues aside, having these transcripts can be a huge advantage in the discovery process, and so clients and attorneys alike must consider at the outset of litigation whether and to what extent discovery will be subject to a confidentiality order. As is evident from the recent case, an imprecise agreement on the record simply does not guarantee the appropriate level of confidentiality and that is a bell that cannot be later un-rung.

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