A common concern for business litigants is protecting
legitimately confidential matter contained in documents produced
during discovery from dissemination to non-parties. The Supreme
Court's decision in Seattle Times Co. v. Rhinehart, 47
U.S. 20 (1984), confirmed that discovery material can be shielded
from the public eye—commonly through a protective
order—but once that material is filed with the court, any
document that affects the disposition of litigation is
presumptively open to public view. Some parties, pointing to Fed.
R. Civ. P. Rule 5(d), have suggested that any document filed with a
court "has been used in [a court] proceeding," and has
possibly influenced the judicial decision, so must presumptively be
made public. That interpretation leaves the producing party
(usually the business entity) in a vulnerable position, unable to
protect from disclosure confidential documents produced to the
opposing party, regardless of whether they are relevant to the
issue
