¶ 31. (concurring). The majority opinion's holding is very narrow: "We hold that unfiled, pretrial discovery materials generated in a civil action between private parties are not public records and that neither the public nor MJS [Milwaukee Journal Sentinel] has either a common law or First Amendment right of access to such materials." Majority op. at ¶ 29 (emphasis added). The majority repeatedly states its holding that the circuit court erred as a matter of law in providing the media with access to unfiled pretrial discovery material because access to unfiled pretrial discovery material is not protected by common law or the First Amendment. Majority op. ¶¶ 2, 17, 20, 26, 29 and n.5 (emphasis added).
¶ 32. I can accept this narrow holding even though it elevates form over substance. In this case the circuit court did not order the depositions in question to be filed in circuit court as is the court's prerogative under Wis. Stat. §804.01(6) (1997-98).1 The circuit court did, however, exercise control over the depositions and in effect, ordered them filed and then released to the parties with instructions.
¶ 33. As a result of the majority opinion, if the Milwaukee Journal Sentinel still wants access to the depositions, it should begin again in the circuit court. The newspaper should, as it did in this matter, move to intervene in the action for the limited purpose of seeking access to pretrial depositions. It should request the circuit court to order the depositions filed in circuit court and to authorize the newspaper to have access to *22the depositions.2 The circuit court may, in its discretion, then order release of all, part or none of the depositions filed in court. Judicial restriction on access to pretrial discovery material is valid, when good cause is shown, such as potential harm to commercial, economic, privacy or reputational interests of parties or nonlitigants and the possible prejudice to the parties' fair trial rights. Wisconsin Stat. § 804.01(3) directs the circuit court to balance these concerns and to issue protective orders when appropriate.3 The circuit court's exercise of discretion balances two competing principles fundamental to pretrial discovery: (1) The public at large pays for the courts; discovery is governed by the courts; the public has an interest in all stages of a judicial proceeding; and the subject of some cases involves a public interest; and (2) Pretrial discovery, unlike the trial itself, is usually conducted in private; the scope of discoverable information is broad, including material that cannot be introduced into evidence at trial; and pretrial discovery is designed for the party receiving it, not for strangers to the case.
*23H-I
¶ 34. The circuit court has express authority to order the depositions in question in the present case to be filed with the court. Wisconsin Stat. § (Rule) 804.01(6) provides that the original copies of pretrial discovery material shall be retained by the party initiating the discovery "unless the, court in any action orders otherwise" (emphasis added).4
¶ 35. This reading of Wis. Stat. § (Rule) 804.01(6) conforms to the historical development of the rule. Until 1986 deposition transcripts were filed with the circuit court immediately after they were taken. Wis. Stat. § 804.05(7)(a) (1983-84).5 The deposition became part of the court record and apparently was available to the public pursuant to Wis. Stat. § 59.14 (1983-84), subject to statutory and common law limitations on public access.6
*24¶ 36. In 1986, pursuant to Supreme Court Order, Wis. Stat. § (Rule) 804.01(6) was created to provide that pretrial discovery material is retained by the parties rather than filed in circuit court unless the circuit court orders otherwise. The drafting file for the newly created Wis. Stat. § 804.01(6) demonstrates that the only reason for the change was to ease the filing burden on the circuit courts and their clerks.7 The 1986 amendment does not alter the nature of the deposition transcripts, which are documents that are under the custody and control of the circuit court.
¶ 37. This reading of Wis. Stat. § (Rule) 804.01(6) is consistent with Federal Rules of Civil Procedure 5(d), which is the model for Wisconsin's analogous § 804.01(6).8 Rule 5(d) states that discovery papers required to be served shall be filed with the district court unless the district court orders otherwise for discovery material. Local rules in many federal district courts provide, as does Wis. Stat. § 804.01(6), that discovery material need not be filed with the district court except by order of the district court. The federal Advisory Committee notes that accompany Rule 5(d) and a *25proposed amendment to change Rule 5(d) to read like § 804.01(6) state the Committee's rationale clearly: Rule 5(d), the proposed amendment and the local rules embody the Committee's concern that discovery material may be of interest to nonparties and that the general public should be afforded access to discovery material whenever possible.9
¶ 38. Thus the fact that the depositions are now retained by parties pursuant to Wis. Stat. § (Rule) 804.01(6) does not change the circuit court's control over the depositions and the circuit court's power to order them filed in court.
rH HH
¶ 39. The majority opinion does not address under what circumstances a nonparty may have access to depositions filed in circuit court. The majority opinion merely holds that common law and the First Amendment do not require public access to unfiled pretrial discovery material.
¶ 40. I need not discuss the common law or First Amendment rights to public access of pretrial discovery material that is filed in court. The Wisconsin rules set forth in Wis. Stat. ch. 804 relating to discovery govern public access to filed pretrial discovery material. The rules recognize that private litigants have protectable interests in information disclosed through discovery and afford means for protecting those interests. Public access is not permitted when good cause is *26shown to close access. Wisconsin Stat. § 804.01(3)(a), like Federal Rule of Civil Procedure Rule 26(c),10 provides in pertinent part that "[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." Thus a party may seek a protective order to limit access to pretrial discovery material if the party shows good cause. "[T]he obverse also is true, i.e. if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection."11 In other words, unless the public has access to discovery material under the law, a party would not need a court order seeking to protect the material.12
*27HH HH HH
¶ 41. I conclude that Wis. Stat. §§ (Rules) 804.01(3) and 804.01(6) permit a person, including the media, to intervene in an action for the limited purpose of asking the court to order pretrial discovery material to be filed in the court and to order access to the filed pretrial discovery material. I further conclude that the circuit court must exercise its discretion in determining whether to allow access to all, part or none of the pretrial discovery material that is filed. Judicial restriction on access to filed pretrial discovery material is valid, under the rules, when good cause is shown, including potential harm to commercial, economic, privacy or reputational interests of parties or nonlitigants and the possible prejudice to the parties' fair trial rights. Federal courts that have examined the analogous federal rules have reached conclusions similar to the ones I reach.13
¶ 42. For the reasons set forth, I concur.
The Milwaukee Journal Sentinel does not assert in this court a right to sit in on depositions. Rather, the newspaper seeks affirmation of the circuit court's order that deposition transcripts be provided to the newspaper.
A motion to intervene for a limited purpose is the appropriate procedure. See, e.g., In re NASDAQ Market-Makers Antitrust Litigation, 164 F.R.D. 346, 350-51 (S.D.N.Y. 1996).
The circuit court exercised its discretion in this case. Mitsubishi failed to seek a protective order, even when the circuit court invited such a request.
Wisconsin Stat. § 804.01(3) provides: ‘
Protective orders, (a) Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following...
Wisconsin Stat. § 804.01(6) (1997-98) states:
(6) Custody of discovery documents, (a) Unless the court in any action orders otherwise, the original copies of all depositions, interrogatories, requests for admission and responses thereto, and other discovery documentation shall be retained by the party who initiated the discovery or that party's attorney.
(b) The original copy of a deposition shall be retained by the attorney sealed as received from the person recording the testimony until the appeal period has expired, or until made a part of the record.
Wisconsin Stat. § 804.05(7)(a) (1983-84) stated in part:
The person [who recorded the deposition] shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of the deponent)" and shall promptly file it with the court in which the action is pending....
For a discussion of limitations, see C.L. v. Edson, 140 Wis. 2d 168, 180-82, 409 N.W.2d 417 (Ct. App. 1987).
See Drafting File for Wis. Stat. § 804.01(6).
Wisconsin Stat. § 804.01(3)(a) (regarding protective orders) is comparable.to Federal Rules of Civil Procedure Rule 26(c); Wis. Stat. § 804.01(6) is comparable to Federal Rules of Civil Procedure Rule 5(d).
Rule 5(d) provides:
Filing; Certificate of Service. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, but the court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding.
See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 788-90 (1st Cir. 1988); In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 145-47 (2d Cir. 1987); In re NASDAQ Market-Makers Antitrust Litigation, 164 F.R.D. 346, 354 (S.D.N.Y. 1996); Hawley v. Hall, 131 F.R.D. 578, 581-83 (D. Nev. 1990).
Rule 26(c) provides:
Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following....
In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 145 (2d Cir. 1987).
iSee also Wis. Stat. § 885.44(13)(a) regarding videotaped depositions, which expressly provides that a copy of a videotaped deposition or a written transcript or audio recording shall be provided to any party or other person authorized by the court.
See, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988); In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 145-46 (2d Cir. 1987); In re NASDAQ Market-Makers Antitrust Litigation, 164 F.R.D. 346, 351-54 (S.D.N.Y. 1996); Hawley v. Hall, 131 F.R.D. 578, 581-83 (D. Nev. 1990).