Legal
The Denver Police Spy Files

What is a Confidentiality Order?

The rules governing lawsuits provide for an exchange of information and documents in a process called "discovery." Each party is required to answer written questions and to provide documents about information that is relevant to the issues in the case. The parties are also allowed to take depositions, where witnesses must answer questions under oath.

Although court proceedings and documents filed in court are almost always open to the public, the discovery process is conducted out of court. The discovery process often deals with a wide range of information that never winds up being part of the public trial or the public court papers.

Sometimes a party seeks what is called a protective order or a confidentiality order that limits the ability of the opposing party to disclose certain sensitive information that is exchanged in the discovery process. These orders usually specify that certain information obtained in the discovery process must be used only for the purpose of conducting the litigation. To implement that, courts will sometimes require that information designated as "confidential" cannot be disclosed outside the lawsuit. In some cases, the court will order that special procedures accompany every use of this "confidential" information, even when it will be discussed in briefs or other documents that are filed in court and thus ordinarily subject to public inspection.

These confidentiality orders are often controversial, because they deny public access to information in which there is a strong public interest in disclosure.

In the Spy Files case, the discovery process is carried out under a confidentiality order that the parties negotiated and the magistrate judge signed on July 12, 2002. Pursuant to this order, Denver's lawyers can designate documents as "confidential - subject to protective order." They make this designation at the time that they provide the information to the ACLU attorneys representing the plaintiffs. The order also applies to deposition transcripts. Within ten days after a transcript is prepared, Denver's lawyers can designate certain portions of the deposition transcript as "confidential." (Although either side of the lawsuit can designate documents as "confidential," it is Denver that requested and has relied on the confidentiality order to prevent information concerning the Spy Files from becoming public.)

When a document or a portion of a deposition transcript is designated as "confidential," the ACLU attorneys and their clients are prohibited from disclosing the contents to anyone who is not connected to the lawsuit. If a document marked "confidential" must be discussed in a paper filed in court or attached as an exhibit, then it must be filed under seal, which means that it will not be placed in the court file to which the public has access.

When a document is marked as "confidential," that designation is preliminary, not final. The confidentiality order provides a procedure to challenge a document's designation as "confidential." When that procedure is invoked, the party arguing for confidentiality must ask the federal court to evaluate the document and determine whether the "confidential" designation is proper. In the Spy Files case, the party arguing for confidentiality has the burden of persuading the federal court that disclosure of the information outside the litigation would "cause substantial harm to the public interest."

At the end of 2002, the discovery portion of the Spy Files case was still ongoing, and the ACLU lawyers had not yet challenged any of the "confidential" designations. On December 26, 2002, however, the Denver Post filed a motion to participate in the lawsuit for the limited purpose of challenging the "confidential" designation of some of the documents disclosed to the ACLU lawyers. If that motion is granted, then the Denver Post would be permitted to argue that certain documents should not be marked as "confidential" but should instead be made available to the newspaper and to the public.

Denver Post's motion to intervene in Spy Files lawsuit, filed December 26, 2002[PDF]

Confidentiality Order, signed by Magistrate Judge Shaffer, July 12, 2002[PDF]