Discovery Evolutions Hold Promise For Greater Privacy Benefits For Litigants

For most civil litigants, discovery is an unprecedented invasion of privacy. Private letters, notes to one's self, off-the-cuff emails, financial details and transactions, photographs, and all other forms of memorializing one's and life become fair game for review and follow-up questioning by a presumptively bitter rival.

Even criminal investigations respect the privacy of a suspect to some extent, requiring authorities to have probable cause when that suspect stores such documents in a place where he has a reasonable expectation of privacy. Yet in civil discovery under American law, the concept of privacy barely warrants mention, except in the limited context of trade secrets or privileges.