Discovering Discovery: Non-Party Access to Pretrial Information in the Federal Courts 1938-2006

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where private attorneys general may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This article considers the legal history and case law of one aspect of openness in the federal courts: public access to discovery material gathered by parties engaged in federal litigation. The public, the press, researchers, and various others have legitimate interests in this information. This right should include pretrial material unprotected by valid protective orders issued under the Federal Rules of Civil Procedure