Court Continue To Show Resistance To Maintaining Under Seal Or In Confidence Documents And Information Used In Court Proceedings

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...