Third-Party Modification of Protective Orders Under Rule 26©

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the privacy interests of the litigants, the property interests of the litigants, and efficiency considerations. Absent a showing of unusual public need, these are the only interests relevant to the decision to modify a protective order. Part III argues that courts always should modify protective orders for third parties similarly situated to litigants in the original dispute and that protective orders only should be modified for third party nonlitigants in extraordinary circumstances.