Businesses often have information they want to keep confidential. This could include information subject to non-disclosure agreements, a company’s trade secret information, personnel files, and more. This type of information can often come into play during a business lawsuit when private records are sought during the discovery process to better support or prove the opposing party’s argument. In many cases, both the business and individuals involved in the litigation do not want the information that is part of the lawsuit to become public.
Protecting Discoverable Information
While relevant information can be demanded during the discovery process, there are steps parties can take to protect that information. First, of course, you can argue against the discovery of the document as not relevant to or otherwise discoverable in the case at hand. If that does not work, then the next step would be to request a protective order from the court before producing the information.
With a protective order, the court requires that the information be kept confidential, meaning that it is disclosed only to the attorney of the party requesting the information. In some cases, the court can even bar the attorney from sharing the information with his client. To get this level of protection, you must show there is good cause to protect the information even from the opposing party. While the court can issue this order, it may not be followed by the parties involved in the litigation. In these cases, the court can outline consequences.
In Camera Review
When the court needs to review confidential documents, they do an in camera or private review. This may still mean that the information is displayed in the court, but that the portion of the lawsuit concerning the confidential information is not open to the public. Further, the records are sealed at the end of the lawsuit to keep them from being publically available. In camera review can also be conducted as part of a pre-trial hearing where the judge determines whether the information deserves additional protection and whether it’s relevant to the case at hand.
Arbitration Instead of Litigation
Due to the private nature of many different types of business information and contracts, businesses often choose to put an arbitration clause into their agreements. This means that disputes about the agreement will go before an arbitrator, generally an expert in the field, instead of a judge. Arbitration is also not subject to the same rules of evidence, giving parties greater leeway in protecting relevant confidential information without having to petition the court for a protective order.
If you’re facing a business lawsuit, reach out to the experienced team of litigators at the Dunn Law Firm. We understand the sensitive nature of your business documents and will work with you to create the best solution possible in your particular situation. To learn more, reach out to the Dunn Law Firm by calling (435) 628-5405 and set up a free consultation today.
