By Craig Gillespie and Barbara E. Cotton

In common law, there is an implied undertaking on litigants not to use information obtained during the discovery process for purposes unrelated to the proceeding. This implied undertaking rule applies to parties, their counsel and all persons.

This implied undertaking continues, even where a case is settled and the discovery evidence is not used. The fact that the settlement has rendered the discovery moot does not mean the appellant's privacy interest is also moot. The undertaking continues to bind. Only when "...an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial is the undertaking spent, but not otherwise, except by consent or court order."

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