Transparency in Litigation

How much, if at all, should litigation proceedings, and the underlying facts illuminated therein, be protected from public scrutiny? What is the appropriate balance between litigants’ privacy interests, the rights of the public, and the media, to know about issues impacting public health and safety, and the role of “open courts” as a cornerstone of American law?

These questions have been the subject of heated debate, by academics, policymakers, and trial lawyers, for decades. The stakes are not theoretical. In the past, the tools of secrecy—protective orders, sealed settlements, and confidentiality agreements—have concealed many far-reaching harms from the public: rifles that misfire, defective heart valves, dangerous opioids, faulty contraceptive devices, and the predatory behavior of high-profile individuals such as Harvey Weinstein, Bill Cosby, Jeffrey Epstein, and Bill O’Reilly. Recent state efforts to increase transparency, including in California, have spurred these debates to new levels of prognostication.

These debates suffer from a severe lack of empirical evidence. Basic questions go unanswered. Does limiting non-disclosure agreements (NDAs) increase litigation? How common are stipulated protective orders approved by the court? What effect do laws limiting secrecy in litigation actually have?

The Rhode Center’s project on Transparency in Litigation is answering these questions. Using first-of-its-kind rigorous empirical research on vast datasets pulled from both federal and states courts, the Center  is bringing much needed evidence and academic discipline to these arguments in the courtroom and in the hallways of the legislatures.