Protecting Confidential Information in the Brave New World of Virtual Litigation

New Jersey Law Journal

Theodora McCormick, Member of the Firm, and Robert Lufrano, Associate, in the Litigation and Health Care & Life Sciences practices, in the firm’s Princeton office, co-authored an article in the New Jersey Law Journal, titled “Protecting Confidential Information in the Brave New World of Virtual Litigation.” (Read the full version – subscription required.)

Following is an excerpt:

Remote courtroom proceedings and virtual trials are our new reality for the foreseeable future, as courts in New Jersey and elsewhere begin the process of reopening and tackling backlogs created by the COVID-19 pandemic. While the whole world seems to have changed in the space of a couple of months, one thing that hasn’t changed is the importance of ensuring that a client’s confidential information doesn’t fall into the wrong hands.

The COVID-19 public health crisis—which has shuttered courthouse doors in New Jersey and across the country—is causing courts and lawyers to embrace technology, including live-streaming court proceedings; video-conferencing with judges, litigants and witnesses; and even virtual trials. This situation has created entirely new challenges for attorneys who must zealously represent their clients in a public forum that is far more public than ever before.

Both New Jersey state and federal courts recognize a presumptive right of public access to court proceedings, and require good cause to seal documents or close a courtroom from the public. Recently, in In re Avandia, 924 F.3d 662, 672 (3d Cir. 2019), the Third Circuit clarified that the standard for sealing publicly filed documents is more stringent than the standard for entering a protective order, and held that a party who wishes to file documents under seal must show “compelling, countervailing interests to be protected” that outweigh the presumptive public right of access.

Against this backdrop, both the state and federal courts in New Jersey are beginning to live-stream court proceedings due to the COVID-19 pandemic. While the public’s presumptive right of access to the courts should not be restricted because of the health crisis, the live-streaming of court proceedings presents new challenges to an attorney’s ability to safeguard his or her client’s confidential information.