¶43 (concurring in part, dissenting in part) — I agree with the majority’s holding that the compelling interest standard applies to certain records filed with the *554court in this case and that the Court of Appeals had no authority for its decision to alter Abbott Laboratories’ statutory postjudgement interest obligation, imposed under RCW 4.56.110(3). However, I disagree with the extent to which the majority has broadened the compelling interest standard in its first holding.
Madsen, J.*554¶44 The majority holds that “any records that were filed with the court in anticipation of a court decision (dispositive or not) should be sealed or continue to be sealed only when the court determines — pursuant to Ishikawa — that there is a compelling interest which overrides the public’s right to the open administration of justice.” Majority at 549 (citing Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982)). While I believe the majority correctly determined that the compelling interest standard should be broadened, the majority chooses the ax over the scalpel. In my view the compelling interest standard should not be extended so greatly as to include records filed with pretrial discovery-related motions or to attachments that have no relevance to the matter.
¶45 The Third Circuit Court of Appeals has thoughtfully dealt with the issue of sealing records in pretrial discovery motions and correctly concluded that “there is a presumptive right to public access to all material filed in connection with nondiscovery pretrial motions, whether these motions are case dispositive or not, but no such right as to discovery motions and their supporting documents.” Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993). Accord Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (holding that there is no right of public access to documents considered in civil discovery motions); Hammock ex rel. Hammock v. Hoffmann-LaRoche, Inc., 142 N. J. 356, 662 A.2d 546 (1995) (holding in part that the presumption of public access attaches to pretrial-nondiscovery motions, whether preliminary or dispositive, and the materials, briefs, and documents filed with the court in support of, or in opposition to, such motions but not to pretrial discovery motions). See also United States v. Amodeo, 44 F.3d 141, *555145 (2d Cir. 1995) (a document filed with the court “must be relevant to the performance of the judicial function and useful in the judicial process” in order for the document to be “designated a judicial document” and thus subject to the right of public access).
¶46 In Leucadia, a leading producer of plastic net products sued its competitor, Applied Extrusion Technologies, Inc. (AET), alleging misappropriation of trade secrets relating to AET’s production of nets. 998 F.2d at 158. The “gravamen” of Leucadia’s complaint for injunctive relief focused on AET’s hiring of several former Leucadia employees who had access to confidential technical information and customer lists. Id. at 158. The parties obtained a protective order covering documents and materials produced during pretrial discovery. Id. After the entry of the protective order, the parties commenced pretrial discovery. The parties filed numerous pretrial motions, many of which had documents attached that were obtained in discovery, subject to the protective order, and were filed with the trial court under seal. Id. Most of the parties’ pretrial motions were denied by the trial court.13 Before trial (and before the trial court ruled on all of the parties’ pretrial motions), the parties reached a settlement of their dispute which they filed under seal. The trial court dismissed the case with prejudice but retained jurisdiction for the limited purpose of enforcing the settlement agreement. Id. at 159-60.
¶47 Nine months after the Leucadia litigation was dismissed with prejudice, a stockholder of AET filed a motion to intervene permissively to unseal the documents filed with the trial court. Id. at 160. The stockholder had filed a separate class action suit against AET, alleging that AET and its directors violated federal security laws by making false and misleading statements regarding AET’s business prospects, including the failure to disclose adequately the *556consequences of the Leucadia litigation and settlement, in the prospectus issued by AET. Id. at 160.
¶48 The trial court denied the shareholder’s motion to intervene. The Third Circuit reversed, remanding the case to the trial court, requiring that AET and/or Leucadia demonstrate continued need for enforcement of the protective order and that the trial court conduct review of the contents of each document. The trial court was then required to balance the interests of the public versus the interests of AET and Leucadia in protecting trade secrets, if any. Id. at 167.
¶49 In making its decision to remand for possible opening of sealed judicial records filed with pretrial motions, the court reasoned that “[w]e believe that our earlier decisions and those in other courts lead ineluctably to the conclusion that there is a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith.” 998 F.2d at 164.14 This conclusion is in accord with part of the majority’s conclusion and I agree with it. Majority at 549.
¶50 The court then explained that it was “reluctant” to extend the federal common law presumption of judicial access to pretrial discovery motions:
In the first place, we cannot overlook the Supreme Court’s statements in Seattle Times [Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984)], albeit uttered in a different context, that “pretrial deposition and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law and, in general, they are conducted in private as a matter of modern practice.” [Seattle *557Times Co. v. Rhinehart] 467 U.S. at 33, 104 S. Ct. at 2208 (internal citations omitted).[15]
In the second place, a holding that discovery motions and supporting materials are subject to a presumptive right of access would make raw discovery, ordinarily inaccessible to the public, accessible merely because it had to be included in motions precipitated by inadequate discovery responses or overly aggressive discovery demands.
Leucadia, 998 F.2d at 164.16 The court further explained that treating pretrial discovery motions the same as pretrial nondiscovery motions “would be a holding based more on expediency than principle. Moreover, we do not know what the effect would be on the discovery process itself of holding such discovery presumptively accessible. See Anderson, 805 F.2d at 12 (permitting public access to discovery might actually make the civil discovery process ‘more complicated and burdensome than it already is.’).” Id. at 164-65.
¶51 In this case, unlike in Leucadia, we are not faced with documents attached to discovery motions. Here, the only pretrial documents at issue were attached to nondiscovery motions, summary judgment motions, and motions in limine. Nonetheless, the court should not adopt a broad new application of a rule without considering the likely consequences. Rather, this court should adopt the Third Circuit’s reasoning in Leucadia and hold that any records filed with the court in anticipation of a court decision with regards to a nondiscovery motion should be sealed or continue to be sealed only when the court determines — pursuant to Ishikawa — that there is a compelling reason which overrides the public’s right to the open administration of justice. Any records filed with the court in anticipation of a court decision regarding a discovery mo*558tion should continue to be governed by the good cause standard. Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 654 P.2d 673 (1982), aff’d, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).
¶52 Additionally, the majority fails to address adequately the potential for abuse under its expanded rule.17 The majority explains that there are two remedies available to a party in the event an opposing party abuses the new rule by attaching documents wholly irrelevant to its motion: (1) sanctions under CR 11 and CR 26(g) and (2) by application of the Ishikawa factors to a motion to seal. Majority at 547-48. While I agree that sanctions are available, their application does not alleviate the actual harm caused to a party due to a bad faith disclosure of confidential documents. Even more importantly, though, the majority’s application of the Ishikawa factors in this context is premature.
¶53 The threshold question in the case of a challenge to the attachment of a confidential document to a motion should be a relevance determination by the court-not an initial application of the Ishikawa factors. Under ER 402, “[a] 11 relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state.” Evidence which is “not relevant is not admissible.” Evidence obtained in discovery, however, is much broader. CR 26(b)(1) states that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and *559location of persons having knowledge of any discoverable matter.” CR 26(b)(1) provides further that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” See also, Seattle Times Co., 467 U.S. at 29-30 (discussing broad rules of discovery in Washington state).
¶54 Absent a relevance determination by the court, the party rightfully seeking to maintain the confidential nature of the document would be forced to meet a “compelling interest” test, clearly not required in the case of abusive behavior by the opposing party. The majority wishfully explains that under the fourth Ishikawa factor, a court should seal a document that one party has attached to a motion when the document has no relevance to the motion because the court will find “that there are little or no valid interests of the party attaching the document to its motion or of the public with respect to disclosure of the document.” Majority at 548. However, the majority’s express holding on page 549, “[w]e hold that any records that were filed with the court in anticipation of a court decision (dispositive or not) should be sealed or continue to be sealed only when the court determines — pursuant to Ishikawa — that there is a compelling interest which overrides the public’s right to the open administration of justice” is in direct conflict with the majority’s discussion on pages 547-48.
¶55 In the case of abusive behavior by one party, the interest in confidentiality necessary to “override” the little to no interest in public access by the abusive party and the public should not be required to be “compelling.” As the majority explains, under the fourth Ishikawa factor, there is little to no need of any party in making the document public. Thus, it is inappropriate for the party to be forced to meet the “compelling” interest standard in order to keep the document confidential. Accordingly, the majority should clarify that in the case of a claimed abuse of the discovery process, e.g., when one party attaches an arguably irrelevant confidential document to a motion, the court should *560first assess the relevance of the document. If the confidential document is irrelevant, the document should remain confidential subject to the good cause standard as set forth in Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 654 P.2d 673 (1982), aff’d, 467 U.S. 20 (1984).
¶56 I concur in the result reached by the majority.
Bridge, J., concurs with Madsen, J.See Leucadia, Inc. v. Applied Extrusion Techs., Inc., 755 F. Supp. 635 (D. Del. 1991) (denying AET’s motion to dismiss complaint in entirety or for a more definitive statement, dismissing one count of Leucadia’s complaint, and granting AET’s motion for a protective order, temporarily postponing Leucadia’s discovery of AET while AET conducted discovery relating to Leucadia’s trade secrets).
The court determined that the following documents and attached documents “were not merely motions relating to discovery” (i.e., were nondiscovery motions): (1) material filed in connection with Leucadia’s motion for a preliminary injunction, (2) material filed in connection with AET’s motion to dismiss for a more definitive statement, (3) an exhibit to Leucadia’s first amended complaint, and (4) material filed in connection with AET’s motion for preclusion of evidence. Id. at 163-64.
The Supreme Court in Seattle Times Co., went on to point out that “[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.” 467 U.S. at 33.
The court determined that the following documents were related to discovery motions: (1) materials submitted with respect to AET’s motion to compel production of documents and answers to interrogatories and (2) Leucadia’s motion to shorten time for production of documents. Leucadia at 164.
While the majority writes that “it is overly cynical to presume that parties will act vindictively and abusively” in court proceedings, it is beyond dispute that abuses in discovery process are not uncommon. Majority at 547. See, e.g., Seattle Times, 467 U.S. at 34 (“It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse.”).