Judicature: On Privacy, Burden, Protection

Woman with large magnifying glass looking at documents (cartoon)

Practitioners grapple with the interplay and challenges of both producing and protecting personal information contained within relevant electronically stored information (ESI).

A point-counterpoint exposition in the influential publication, Judicature, lays out the analysis in the context of protective orders and the 2015 re-emphasis on proportionality.

Should privacy be considered a “burden” under the proportionality analysis required by Federal Rule of Civil Procedure Rule 26(b)? Or should privacy continue to be protected by judicial orders under Federal Rule of Civil Procedure 26(c)?

EDRM Advisory Council Chair, Robert D. Keeling, and Ray Mangum, a partner and associate, respectively, at Sidley Austin LLP, argue that privacy should be considered a burden under Rule 26(b). Lee H. Rosenthal and Steven Gensler write a counterpoint essay “The Privacy-Protection Hook in the Federal Rules.”

Keeling and Magnum conclude that a proportionality analysis can include non-pecuniary factors, such as complying with privacy legislation and regulation, in addition to hard costs as a “burden” and include early eDiscovery stages like preservation as applicable.

Rosenthal and Gensler argue that protective orders can and should continue to be an effective shield for privacy impacted ESI, with the party seeking protection demonstrating good cause for a protective order against discovery.

Judicature, a scholarly journal focused on the judiciary, the administration of justice, and the rule of law, is published by EDRM Foundational Partner, Bolch Judicial Institute of Duke Law School.  Judicature is mailed free of charge to all Article III judges, federal magistrate judges, and state supreme court judges.

Author

  • Mary Mack

    Mary Mack is the CEO and Chief Legal Technologist for EDRM. Mary was the co-editor of the Thomson Reuters West Treatise, eDiscovery for Corporate Counsel for 10 years and the co-author of A Process of Illumination: the Practical Guide to Electronic Discovery. She holds the CISSP among her certifications.

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