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Does the Public’s Right of Access Affect Spoliation?

Posted on June 27th, 2014

Spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence that is relevant to a legal proceeding. The public has a presumptive right of access to judicial proceedings, but how is that right balanced when considering the possibility of future litigation and the spoliation of evidence? These are issues that the court sought to remedy in Malibu Media, LLC v. John Doe, Case No. 13 C 6312 (N.D. Ill. June 4, 2014).

Previously, Plaintiff filed a motion to seal its motion for a protective order, requesting that virtually every factual assertion, including the “Facts” section of its motion, be redacted. The court denied the motion, without prejudice, reminding Plaintiff that the public has a presumptive right to access Plaintiff’s filings because they were submitted to influence judicial decision.

In looking at the current case, the court reiterated the Seventh Circuit in stating that, “the judicial proceedings held, and evidence taken, on the way to a final decision also are presumptively in the public domain.” Pepsico, Inc. v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995).

Still, the court sought a way to balance the affect that this rational would have on Plaintiff’s future litigation. The court asserted there are certain parts of Malibu’s motion for protective order that justify protection from public disclosure, specifically, the following.

First, to the extent that the short Section E tends to reveal what Malibu asserts is a possible legal action, Malibu fears that disclosure will likely lead to spoliation of evidence. Having reviewed that material, the court concludes that the few lines discussing that topic may be redacted in the public version.

The court’s decision is significant due to the risks of plaintiff eDiscovery. Often, there is a push to disclose any evidence that might be deemed relevant, and this presents a challenge when faced with massive amounts of data in the form of electronically stored information (ESI). Plaintiffs run the risk of turning over sensitive information, and the risk is heightened by the compulsion to comport with the public’s right of access.

This decision marks a pragmatic approach to balancing the rights of all parties involved, and gives plaintiffs another relevant reference in the realm of discovery.

ILS – Plaintiff Electronic Discovery Experts

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