1、外文翻译之一 BEYOND JUDICIAL DISCRETION : TOWARD A RIGHTS-BASED THEORY OF CIVIL DISCOVERY AND PROTECTIVE ORDERS 作者： Jordana Cooper 国籍： The United States 出处： Rutgers Law Journal, Vol. 36, Issue 3 (Spring 2005), pp. 775-ii 原文正文： Civil discovery, as every first-year law student knows, is governed by the foru
2、ms rules of civil procedure. We have by now grown so accustomed to the rules regime that we rarely look beyond it to determine whether something more persists in the background, supporting its structure and perhaps constraining, at certain outer limits, the exercise of judicial discretion that has b
3、ecome so commonplace. Although rarely the subject of modem civil discovery discourse, there are limits on the scope of rules-based judicial discretion, and those limits emanate from our Constitution. In this Article, two such important limitations are considered: (1) the limits of discretion when tr
4、ade secret discovery is at issue and the resisting litigant seeks entry of a protective order to prohibit unnecessary dissemination of its trade secret information - this is a limitation on the governments power under the Fifth Amendment, which prohibits the taking of private property for public use
5、 without just compensation; and (2) the limits of discretion when relevancy of the private information sought but resisted is lacking and the discovery request reaches too broadly beyond the issues in the case - this is a limitation on the governments power under the Fourth Amendment, which prohibit
6、s unreasonable searches and seizures. - - As we shall see, Supreme Court jurisprudence in these areas is sparse, and little is current. The most important Supreme Court foray into the area of protective orders in civil discovery was the 1984 decision Seattle Times Co.v. Rhinehart ,1 which rejected the notion that the public had a constitutional right of access to unfiled pretrial discovery materials and affirmed the state courts issuance of a protective ord
