Just to restate it, all I am defending in my first point is the proposition that the judge needs to make a careful balancing choice about whether to seal discovery documents, precisely because, as you rightly point out, not all situations are the same. There are many variable interests in different cases — sometimes privacy, sometimes trade secrets, usually the protection of the smooth functioning of the discovery process itself, always the public interest. There can’t be one simple rule.

So when I say “change the facts” I just mean that folks opposed to Lilly on these issues may be fairly comfortable defending this leak, but deplore the next leak in a different case. That’s why my conclusions are that (1) judges should weigh the many interests at stake in sealing orders very carefully and (2) once those orders are entered, they should be enforced vigorously. If someone acts unilaterally to flout a carefully-considered confidentiality order and releases documents the court has sealed (rather than, for example, urging the court to change the order), then that person should get into serious trouble.

If there is an exception (or legal protection) for things done in the public interest, how can these facts be exchangeable?

moreover, I’d be wary of making a parallel between an individual and a corporation (as in embarrassing facts about an individual and facts from a corporation). There seem to be several different kinds of rights and harms implied depending on who is harmed. For one, are we talking a right of privacy or a trade secret? Aren’t those different?

I think the most valuable point implied is that these technologies are not only good, and that more access to and ability to share information is not always harmless. But would seem a pity to equate all the kinds of harm, especially in terms of what should be more or less defended against.

Must the law do so?