Federal Circuit Rule 25.1: Privacy and Confidentiality

(a) Scope.

(1) Availability to the Public.

Unredacted material included in nonconfidential or unsealed filings is presumed to be public. After five (5) years following the end of all proceedings in this court, the court may direct the parties to show cause why confidential filings (except those protected by statute) should not be unsealed and made available to the public.

(2) Restricted Access.

At the time of filing, access to confidential or sealed documents will be restricted to authorized court personnel only. If a party or its counsel has not been authorized access to confidential or sealed material under a governing protective order, any filing containing such material must include the pertinent protective order with a cover letter indicating which parties or counsel are not authorized access. The court may provide access to confidential or sealed material to all parties and counsel in a case who are not identified on such a cover letter. Any confidential or sealed document filed without a cover letter is assumed to be accessible by all parties and counsel in the case.

(3) Responsibility for Review.

The parties and their counsel are solely responsible for redacting restricted or sensitive materials from documents, identifying any counsel or parties to the case not permitted to access confidential or sealed material, and properly filing confidential or sealed material. The clerk of court is not required to review documents to ensure material has been appropriately redacted.

(4) Redactions.

No material may appear redacted in a filing with this court except as provided in Federal Rule of Appellate Procedure 25(a)(5) or Federal Circuit Rules 25.1(b), 25.1(d), or 30(c)(2), or if that material was only filed in redacted form at the trial court or agency.

(b) Personally Identifiable Information.

All parties must refrain from including or must redact personally identifiable information (PII) from documents filed with the court.

Documents that contain only redacted PII and no other confidential markings are not required to adhere to Federal Circuit Rule 25.1(e). The requirement to redact PII may be waived by the inclusion of a statement of consent by the affected individual, but a person waives the protection of this rule as to that person’s own PII by filing it without redaction and not under seal. Examples of PII include the following:

(1) Social security numbers;

(2) Financial account numbers;

(3) Names of minors (use instead the minor’s initials);

(4) Dates of birth (use the year only); and

(5) Home addresses (use the city and state only).

(c) Protective Orders.

(1) Status of a Protective Order on Appeal.

In general, any portion of the record that was subject to a protective order in the trial court or agency must remain subject to that order on appeal or review. Material will lose its status as subject to a protective order, however, if and when it has been removed from protected status under subsection (2) below or has appeared in a filing without being marked confidential. This court, sua sponte, may direct the parties to show cause why a protective order should not be modified.

(2) Agreement by Parties to Modify a Protective Order.

If any portion of the record in the trial court or agency is subject to a protective order and a notice of appeal or petition for review has been filed, each party must promptly review the record to determine whether protected portions need to remain protected on appeal. If a party determines that some portion no longer needs to be protected, that party must seek an agreement with the other parties. Any agreement that is reached must be promptly presented to the trial court or agency, which may issue an appropriate order.

(A) Certificate of Compliance.

In appeals of proceedings subject to a protective order in the trial court or agency, each party must file a certificate of compliance no later than the time for filing the appendix stating it complied with this rule.

(B) Exclusion.

This requirement does not apply to cases arising under 19 U.S.C. § 1516a or to third-party information marked confidential.

(d) Confidential Marking Limitations; Motions to Exceed Limitations.

(1) Motions, Petitions, Responses, Replies, and Briefs.

Material in a motion, petition, response, reply, or brief may only be marked confidential to the extent noted in subsections (A)–(C) below, and only if the information (1) is treated as confidential pursuant to a judicial or administrative protective order and (2) such marking is authorized by statute, administrative regulation, or court rule (such as Federal Rule of Civil Procedure 26(c)(1)). Otherwise, no material may be marked confidential, including references to information previously treated as confidential pursuant to a protective order.

(A) General Limitation.

Each motion, petition, response, reply, or brief may mark as confidential up to fifteen (15) unique words (including numbers).

(B) Limitation for Cases Under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b).

In cases arising under 19 U.S.C. § 1516a or 28 U.S.C. § 1491(b), each motion, petition, response, reply, or brief may mark confidential up to fifty (50) unique words (including numbers).

(C) Exclusions.

When a phrase is marked confidential in a filing, the words in the phrase count against the unique word allotment for that filing; but repeating the same confidential material in the same filing does not use up any more of the unique word allotment. If a responsive filing uses material previously marked confidential in the filing(s) to which it responds, that material does not count against the unique word allotment for the responsive filing.

(D) Applicability.

The limitations of Federal Circuit Rule 25.1(d)(1) do not apply to appendices; attachments; exhibits; and addenda to motions, petitions, responses, replies, or briefs.

(2) Other Documents.

Material that is covered by a protective order or that has confidentiality imposed on it by a statute, rule, or regulation may be marked confidential in any filing other than those subject to Federal Circuit Rule 25.1(d)(1) without any limitation on the number of markings. Material that has lost its protective coverage under Federal Circuit Rule 25.1(c) may not be marked confidential.

(3) Motion to Waive Requirements.

A party seeking to mark more words confidential than permitted must file a motion with this court. Access to a filing accompanied by a motion to waive confidentiality requirements will be restricted in accordance with Federal Circuit Rule 25.1(a) and will remain restricted should the motion be denied, unless ordered otherwise.

(A) Contents.

The motion must identify the total number of unique words sought to be marked confidential and establish why the additional markings are appropriate and necessary pursuant to a statute, administrative regulation, or court rule. For example, a party may establish that an argument cannot be properly developed without additional disclosure of confidential information, and public disclosure will risk causing competitive injury. All motions should explain in detail the propriety of confidentiality and provide reasons and/or legal citations for each source of information sought to be marked as confidential.

(B) Time for Filing.

The motion must be filed contemporaneously with the document for which waiver of confidentiality requirements is sought.

(C) Court Action.

If the motion is denied in whole or in part, an amended filing that complies with the confidentiality limitations must be filed within ten (10) days after the action on the motion. Any amended filing that still does not meet the confidentiality limitations must be submitted with a new motion.

(e) Contents and Format for Confidential Filings.

(1) Two Versions.

A document containing material subject to confidentiality as permitted by Federal Circuit Rule 25.1(d) must be filed with the court in two versions: a confidential version that notes the material marked confidential, and a nonconfidential version containing appropriate redactions.

(A) Confidential Version.

The cover or front page of the confidential version must be labeled “confidential,” either centered at the top or contained in the title. If confidentiality will end on a certain date or upon the happening of an event, this must be stated on the cover or front page (e.g., “CONFIDENTIAL UNTIL [DATE],” or “CONFIDENTIAL DURING JUDICIAL REVIEW”). Each page containing confidential material must enclose this material in brackets or indicate this material by highlighting. The confidential version of an appendix must include at the beginning (i.e., in front of the judgment or order appealed from) pertinent excerpts of any statutes imposing confidentiality or the entirety of any judicial or administrative protective order.

(B) Nonconfidential Version.

The cover or front page of the nonconfidential version must be labeled “nonconfidential,” either centered at the top or contained in the title. Each page from which material subject to a protective order has been deleted or redacted must bear a legend so stating. Except for redactions in exhibits, addenda, and appendices, an adequate, general descriptor of the material must appear over the deletion or redaction. The table of contents must include a paragraph describing the general nature of the confidential material that has been deleted and applicable page numbers. If the document does not contain a table of contents, this paragraph must be the first paragraph of the document.

(2) Certificate of Confidential Material.

A motion, petition, response, reply, or brief that includes material marked confidential under Federal Circuit Rule 25.1(d)(1) must be accompanied by a certificate that indicates the exact number of unique words (including numbers) sought to be marked confidential. It is the responsibility of the filing party to ensure that the certificate of confidential material is accurate.

Ed. Note: The parties must be prepared to justify to the court any claim of confidentiality. See the Practice Notes to Rule 25.1 (Justification for Claim of Confidentiality) and Rule 34 (Justification for Claim of Confidentiality).

Practice Notes to Rule 25.1

Describing the General Nature of Confidential Material Deleted from the Nonconfidential Version.

The following example is acceptable:

CONFIDENTIAL MATERIAL OMITTED The material omitted on page 42 describes the circumstances of an alleged lost sale; the material omitted in the first line of page 43 indicates the dollar amount of an alleged revenue loss; the material omitted on page 44 indicates the quantity of the party’s inventory and its market share; the material omitted in the text on page 45 describes the distributor’s experiences concerning the inventories and order lead times; and the material omitted in the footnote on page 45 describes non-price factors affecting customers’ preferences between competing methods.

Justification for Claim of Confidentiality.

Unnecessarily designating material in the briefs and appendix as confidential abrogates the right of public access and may hinder the court’s preparation and issuance of opinions. Counsel must be prepared to justify at oral argument any claim of confidentiality.

Noting Redactions in the Nonconfidential Version.

When a page redacts confidential information, the legend noting the redaction should appear in the margin of the page. When including a general descriptor of redacted information, that description must appear in place of the redacted information, e.g., “dollar amount,”

“number of items,” “chemical name.” If an entire page is redacted, a slip sheet may be included, and the legend may appear in the center of the sheet. If a consecutive range of entire pages is redacted, the filer may include one slip sheet with a legend representing the redaction of that range of pages.

Noting Confidential Material in the Confidential Version.

The court requires that confidential information be clearly identifiable in the confidential version, and the filer should ensure that highlighting will not obscure text or be confused with other identifiers elsewhere in the document. Brackets should be sized appropriately to ensure they are readily recognizable. If an entire page is to be marked confidential, the filer may include large brackets on the left and right margin of the page or highlight the entire page. The highlight may be in the form of a box over the entire page or a clearly highlighted border surrounding the page.

Record Material That Exists in Two Versions.

When material that is part of the record had a sealed and a public version of that document, such as an underlying opinion or order, then the confidential appendix should include the sealed version and the nonconfidential appendix should include the public version. The two versions must be appropriately highlighted or bracketed. If one version is longer than the other, the shorter version should include slip sheets to cover the additional missing pages in its corresponding version.

Confidential Filings.

For purposes of these rules, documents filed as “confidential” are treated the same as documents filed “under seal.”

Certificate of Confidential Material.

Using Federal Circuit Form 31 satisfies the certificate requirements of Federal Circuit Rule 25.1(e)(2).