Confidentiality Issues in High Profile Litigation

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It was nearly 20 years ago when a white Ford Bronco sped down an Los Angeles highway containing O.J. Simpson. Some believe that the trial that followed changed litigation, but there have been a number of trials that have garnered international attention since: Oscar Pistorius, Michael Jackson, and Amanda Knox are more recent examples. Attorneys involved in high-profile litigation have unique responsibilities to consider when balancing obligations to the client with immense pressure imposed by the media and the public. In particular, confidentiality issues are prevalent in these types of cases as the media probes for sexy details. This makes an attorney’s job more difficult. Confidentiality agreements may help, but they are not a sure thing as demonstrated by a recent decision.

There are extra steps an attorney can take in an effort to protect confidential information in litigation, whether the media is interested or not. For example, parties may stipulate or enter into a confidentiality agreement in which they agree to keep certain information out of the hands of the public.  Stipulation agreements are not completely leak proof, however. In Dacosta v. Danbury, a former employee of a local town filed suit against her employer and the mayor. The case garnered attention from the community. After the HR director was deposed, the parties entered into an agreement with that the deposition transcript would not be disclosed publicly because it contained sensitive information about other town employees.

In response to a Freedom of Information Act request from a local newspaper, the plaintiff’s attorney seemingly ignored the confidentiality agreement and produced the transcripts to the reporter and a blog on the condition that no designated confidential information would be published.  When the blog published unredacted transcripts of the testimony, including the confidential information, counsel for the town sought sanctions.

Although the court was careful to state that it did not condone the attorney’s behavior and it thought it to be a lapse in judgment, it also concluded that the attorney did not violate any court order, rule of civil procedure or cause prejudice to the defendants.  The court further reasoned that sanctions were not appropriate as there had been no showing of bad faith or that plaintiff’s counsel disclosed the information for an improper purpose.

This case demonstrates the importance of an attorney’s handling of confidential information in high-profile cases and the length that attorneys must go to protect that information.  Attorneys should take due care to handle sensitive information to avoid legal and ethical troubles.  Importantly, when issues of confidentiality arise in a high-profile case, it is prudent to obtain an order from the court to protect that information rather than rely on a handshake agreement.  Otherwise there may be no real retribution when sensitive information is “accidently” disclosed.