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We have posted previously on the growing reluctance of certain
courts to maintain under seal the rulings of arbitral panels in
international disputes (see, for example,
here). That poses challenges to parties trying to decide
whether to initiate confirmation, enforcement, or vacatur
proceedings. Once the case is in court, however, there is no
assurance that confidential material will remain out of the public
eye.
For example, in the direct purchaser component of
In re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION,
MDL Docket No. 1869, Misc. No. 07-489 (D.D.C. 2012) (PLF), in which
the District Court recently granted class certification, the Court
addressed the issue of continued confidentiality as it related to
the Court's certification decision, which has not yet been
published. Said the Court:
If either party believes that some passage(s) of the Court's
Opinion should be redacted, they must specify in the joint report
which passage(s) and must specifically state the cause for each
redaction. In making any such request, the parties are reminded
that the courts are not intended to be, nor should they be,
secretive places for the resolution of secret disputes. See, e.g.,
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)
("It is clear that the courts of this country recognize a
general right to inspect and copy public records and documents,
including judicial records and documents.") (footnotes
omitted); Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268,
1277 (D.C. Cir. 1991) (noting that there is a "strong
presumption in favor of public access to judicial
proceedings"); United States v. Hubbard, 650 F.2d 293, 317
n.89 (D.C. Cir. 1980) (holding that the trial court's
discretion to restrict access to court records should "clearly
be informed by this country's strong tradition of access to
judicial proceedings"). Accordingly, any redactions shall be
made solely to the extent necessary to preserve the confidentiality
of the relevant information in accordance with the terms of the
Protective Order issued in this case."
Relatedly, we are aware of the standing rules of certain judges
that require every confidentiality order entered by the Court to
contain language making it clear that material provided to the
Court or the other side under the protections of a confidentiality
order may not remain so protected if used in open court or by the
Court for purposes of a ruling or decision. Judge Rakoff's
standing order requires confidentiality orders entered in cases
:
9. All persons are hereby placed on notice that the Court is
unlikely to seal or otherwise afford confidential treatment to any
Discovery Material introduced in evidence at trial, even if such
material has previously been sealed or designated as Confidential.
The Court also retains discretion whether to afford confidential
treatment to any Confidential Document or information contained in
any Confidential Document submitted to the Court in connection with
any motion, application, or proceeding that may result in an order
and/or decision by the Court.
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about your specific circumstances.
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