Attorneys' Eyes Only? Confidential? Really?

NYLitigator magazine

PUBLISHED ON: October 4, 2016

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Business litigation these days frequently involves the production of voluminous documents in discovery. At the same time, clients may want their documents to be held confidential and to limit the persons who can examine them. The solution is usually for the parties to make the document production and related discovery subject to a Confidentiality Agreement.

Given the time pressures inherent in meeting discovery deadlines, and the prodigious number of documents to be reviewed and produced, counsel may adopt a Confidentiality Agreement that has been used before and a “let’s worry about that later” approach when it comes to identifying specific documents that will be subject to the agreement.

However, kicking the can down the road in this fashion can lead to trouble later on. Two items that are problematic are “attorneys’ eyes only” provisions and attempts to require that documents filed in court be sealed.