Brodkorb case highlights modern privacy issues

In his lawsuit against the Minnesota Senate, Michael Brodkorb has long threatened to reveal the names of other Senate staffers who are alleged to have conducted similar affairs with senators yet who did not get terminated from their jobs. This leverage loses its potency once the names are actually disclosed. It appears that the parties to that litigation, and the judge, agreed that this information could be filed under "seal" and not be made public, at least for the time being, while the parties tried to work things out.

Unfortunately, Brodkorb's lawyers recently filed pleadings electronically in U.S. District Court, which included the protected information by accident, allowing the Associated Press to obtain names and details during a brief window of access. The attorneys' stumble highlights a major but unappreciated public-policy issue regarding individual privacy and our court system in the electronic age.

As Americans become more concerned about protecting private information, especially medical records, the courts are the last bastion of unfettered transparency — providing a public window into the private lives and dirty laundry of tens of thousands of litigants and witnesses every year. The American legal system has always been a public forum. It is understood that citizens have a constitutional right to know how cases are decided in our justice system. The public, including the media, is allowed to sit in on civil and criminal trials and court proceedings, unless they involve a minor.

When this country was founded, however, and indeed through the last millennium, court files were maintained only in paper form. They were public but could only be accessed by visiting the courthouse in person and reading them on-site in a dusty basement. Like other categories of big data, however, information about lawsuits and the parties to legal disputes is now maintained in electronic form.

Anyone with a password can access the PACER system and review federal court filings across the country; state filings in Minnesota are now electronic as well. Once obtained, documents can be scanned to the Internet. Hundreds of videotaped depositions are now available on YouTube. Trials are televised live and dissected by Nancy Grace and others. Court decisions are available in a number of electronic databases, including Google.

Is this what the founding fathers intended?

Almost nobody wants the tawdry details of his or her dispute to be viewed by the public. Anyone could end up in a civil dispute next week, either as a plaintiff, defendant or witness, through no fault of their own. In the process of discovery, lawyers can ask about one's personal life, even if the information is not ultimately admissible at trial (see Jones vs. Clinton), or can obtain internal documents from a business. The entire contents of one's e-mail account may be opened for review.

It is therefore understandable that all parties to a litigation will seek to agree to maintain certain information as confidential. Each side has something to gain and nothing to lose. Requests for protective orders are now de rigueur in civil disputes in state or federal court in Minnesota. Their use has proliferated in recent years, leading to pushback by the courts. In fact, the practice of stipulating that either side may designate as "confidential" whichever documents it chooses pursuant to a protective order is so widespread that it is remarkable to consider that it might not necessarily always be appropriate under the law.

Just a few days ago, a federal judge told me that the District of Minnesota is cracking down on increasing efforts by lawyers to file materials under seal and that any such request for a "protective order" now must be specifically justified.

My favorite part of these discussions is the request for "attorney's eyes only" documents, which creates a three-tier system worthy of Dick Cheney — public, confidential and super-top-secret.

Although all parties to a lawsuit may have a common interest in sealing court submissions, officers of the court have a perceived duty to limit these requests. I have had judges in both federal and state court refuse to sign proposed protective orders in the name of the public interest. The narrow list of what can be sealed or redacted includes Social Security numbers, medical records and trade secrets. Information about extramarital affairs may or may not fall within this exception. Surprisingly, the law provides little guidance for judges and magistrates on this issue.

Part of the impetus to settle cases can be the threat of embarrassing information becoming public on the Internet, as in the Brodkorb case. These types of threats should not be a motivating factor in resolving legal disputes.

An alternative to public litigation is private arbitration. In fact, the principle of public disclosure in civil litigation is somewhat hypocritical, because the U.S. Supreme Court has also articulated a strong public policy in favor of enforcing private arbitration agreements. One almost suspects that the court system is trying to lighten its caseload by discouraging litigants from using taxpayer-funded courts in favor of more expensive, and more confidential, private arbitration. Arbitrators typically charge $500 an hour, which could lead to two-tier system for wealthy and less-wealthy litigants.

Our justice system must remain open for the good of society. But individual litigants should be prepared to check their expectations of privacy at the courthouse metal detector.

V. John Ella is an Minneapolis employment law attorney with Jackson Lewis LLP and a Certified Information Privacy Professional (CIPP).