(NASA)
Courts are tending to keep documents and testimony a secret just so long as the parties claim it is "sensitive business information." See, e.g., M3 USA Corp. v. Summer Qamoum, No. 20-2903 (RDM), 2021 WL 2324753, at *7 (D.C.D.C. June 7, 2021) ("The Court also entered a stipulated protective order, permitting the parties to safeguard their sensitive business information. Dkt. 20.").
When entering a secrecy order, i.e., a protective order such as under Federal Rule of Civil Procedure 26(c), Courts have wide discretion. However they do not have discretion to override the presumption of public access to Court records at will.
Courts have to accommodate that presumption, to recognize it and to apply certain safeguards when the interests are balanced in favor of secrecy, including to limit disclosure rather than to bar disclosure entirely unless the case is so unique that no disclosure is required. The presumption of public access to Court records is a presumption which comes from both the United States Constitution and common law (even though, in the federal system, there is not supposed to be such a thing as common law).
Keeping "sensitive business information" confidential is really a creation of the lawyers for large corporations which want to keep such information a secret from the public. Large corporations would face a risk of losing business otherwise. Needless to say, "sensitive business information" is not protected from disclosure either by the Constitution or by Rules of Procedure; rather, it is protected from disclosure by a swiftly growing number of Courts and stipulations, as in this case.
For recent restrictions on secrecy orders, see for example the articles posted here on May 24 and on May 26, 2021.
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