Protective orders, sealed settlements, and confidentiality agreements have long concealed harmful practices from the public eye. Cases where secrecy enabled harm read like a catalog of ignominy: rifles prone to misfiring, defective heart valves, or risky painkillers and contraceptive devices—plus hundreds of settlements entered by high-profile defendants such as Harvey Weinstein, Jeffrey Epstein, Bill Cosby, and Bill O’Reilly. In today’s legal system, information about dangerous products and workplace misconduct can remain hidden for years, if not decades.

Our team at the Deborah L. Rhode Center on the Legal Profession—including Professor David Freeman Engstrom, JD ’02, Professor Nora Freeman Engstrom, JD ’02, Professor Jonah Gelbach, Austin Peters, JD ’22 (PhD ’23), and Civil Justice Fellows Garrett Wen, JD ’24, and Aaron Schaffer-Neitz, JD ’24—has been working to bring these issues into the spotlight. We built a pair of enormous datasets using cutting-edge machine learning techniques. And after analyzing these datasets, we wrote papers that illuminate two aspects of court secrecy: (1) protective orders, which cloak discovery materials, and (2) secret settlements, which cloak case outcomes.

Our first paper, “Secrecy by Stipulation,” published in the Duke Law Journal, examines the insidious creep of protective orders in civil litigation. Many have long known that protective orders, which permit sensitive information uncovered during discovery to stay hidden, are often uncontested by litigants. Although there are valid reasons for such orders—e.g., safeguarding trade secrets, individual privacy—their use has expanded beyond legitimate purposes.

Take the case of 10-year-old Ellie Sand who, in 2007, died after being thrown from a Yamaha off-road vehicle that flipped over. Despite numerous lawsuits revealing that Yamaha knew its vehicles were prone to flipping, protective orders kept that information hidden and the dangerous vehicles remained on the market. In the years since Ellie’s death, more than 60 people were killed in similar accidents.

Despite countless efforts to reform protective order practice, many of them prompted by cases like Ellie’s, reforms have failed to gain traction. Why? Because of a persistent, and hitherto untested, belief among lawmakers and influential academics that judges carefully scrutinize protective orders.

In “Secrecy by Stipulation,” we conducted the most comprehensive empirical test of that assumption. We trained powerful algorithmic models and examined 2.2 million federal cases filed between 2005 and 2012. We found that judges granted 95 to 97 percent of all stipulated requests for protective orders—despite the Federal Rules of Civil Procedure’s requirement that protective orders only be entered upon a showing of “good cause.” Even more troubling, our manual review of 300 protective orders revealed that in more than three-quarters of cases, judges approved these orders without making any substantial changes to the parties’ requests.

“Courts should promote accountability, not secrecy. We hope our research will foster further discussions and encourage more states to rethink the role of protective orders and secret settlements in civil litigation.”

Aaron Schaffer-Neitz, JD ’24, and Garrett M. Wen, JD ’24

Our second paper, “Shedding Light on Secret Settlements: An Empirical Study of California’s STAND Act,” forthcoming in The University of Chicago Law Review, focuses on secret settlements—in the context of workplace sexual harassment, sexual assault, and discrimination. For decades, powerful abusers used settlements laced with confidentiality clauses to pay off victims in exchange for silence. These agreements not only allow the perpetrator to evade accountability but also cast a long-lasting psychological shadow over their victims.

It took the #MeToo movement to finally spur legislative action in over a dozen states. California lawmakers were among the first, enacting two groundbreaking laws: the Stand Together Against Non-Disclosures (“STAND”) Act in 2018 and the Silenced No More Act in 2021. These laws prohibit secret settlements in cases involving sexual harassment, assault, and other forms of workplace discrimination. Yet the laws faced stiff opposition. Opponents on both sides of the “v.” warned that the sky would fall. They argued removing secrecy as a valuable bargaining chip would make women reluctant to bring lawsuits in the first place; or, they asserted, the laws would flood California courts with frivolous claims and reduce incentives for defendants to settle, leading to costly, scorched-earth litigation tactics.

To assess the real-world impact of California’s reforms, we analyzed some 262,000 case filings in the Los Angeles County Superior Court, both before and after the enactment of the STAND Act and the Silenced No More Act. Using a sophisticated research design and appropriate comparators, we found only a slight decrease in case filings and little change in the duration or intensity of litigation, likely because settlements remained a preferable alternative to trial for many litigants. The sky, in other words, did not fall.

Beyond the raw numbers, our qualitative interviews with employment law practitioners in Los Angeles revealed that the reforms brought about what we call a “liberation effect” for victims of sexual harassment, assault, and discrimination. By taking secrecy off the table, the legislation gave victims the freedom to share their stories if they so choose. As one attorney told us, “By actually being able to talk about it, when [victims] want to talk about it, in the ways they need to talk about it . . . that’s where the healing comes through.” Our paper recasts the secret-settlement debate to foreground victims’ needs, not sky-is-falling claims and litigation politics.

Courts should promote accountability, not secrecy. We hope our research will foster further discussions and encourage more states to rethink the role of protective orders and secret settlements in civil litigation. SL

Garrett M. Wen, JD ’24, is an associate at Williams & Connolly. Aaron Schaffer-Neitz, JD ’24, is a law fellow at Altshuler Berzon LLP. Both were fellows at the Deborah L. Rhode Center on the Legal Profession.