Protective orders and discovery sharing: beware of plaintiffs bearing sharing agreements

In what has become an all too frequent state of affairs, plaintiffs' attorneys, rather than fighting all aspects of confidentiality agreements and protective orders, put on a mask of cooperation, agree to a certain scope of confidentiality, but then insist upon a discovery sharing agreement, which essentially permits unfettered use of confidential materials obtained in one litigation in any other litigation, in any jurisdiction, by any plaintiffs counsel, without restriction or oversight. Beware. Such agreements pose significant risk to defendants on many fronts. As discussed in this article, numerous courts have analyzed the legitimate interests set forth by both proponents and opponents of discovery sharing, and there are valid and strong arguments adopted by many courts in opposition to the entry of orders permitting sharing. The defense should continue to assert those arguments to oppose sharing on any level, and at the very least, where courts seem intent on permitting some measure of sharing, defendants should seek to tailor such sharing as narrowly as possible.