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.