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Protecting Confidential Information Following FCC v. AT&T

By Kurt Hamrock

In today's world of federal regulation, businesses constantly submit documents and information to the government. Whether it is financial information to the SEC, testing data to the FDA, pricing and inspection data to agencies contracting with businesses for goods and services, or the results of internal investigations to any one of a number of federal investigative agencies, businesses supply the government with information that can provide an intimate look into their inner workings.

Such information can be extremely valuable in product liability litigation, and indeed often can determine the outcome of a case. The more information a litigant has, the stronger its case will likely be. Consequently, plaintiffs are constantly looking for ways to obtain information both directly from corporate defendants and indirectly from other sources. Conversely, the better a business can control a plaintiff's access to information, the greater its opportunity to control and limit the scope of litigation. As such, companies must carefully consider what information they submit to the government and how they can limit what portion of that information is later released to the public. This has become increasingly difficult as the use by private litigants of the federal Freedom of Information Act has expanded and access to government documents has become increasingly easy. Further, a recent Supreme Court decision has reinforced the need for businesses to tread carefully in this potentially dangerous battleground.

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