Prior publication on SSRN.


In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought to prioritize litigation’s information-production role over competing litigant-autonomy values in lawsuits like the Opiate litigation that have a significant bearing on public health and safety. To aid courts in doing so, we propose a nuanced approach to confidentiality that takes into consideration the interests of different actors and stakeholders with different legal claims, recognizing that doing so will undermine the system’s commitment to trans-substantivity in practice.