Local Rule LR 5.4: FILING DOCUMENTS UNDER SEAL

LR 5.4 FILING DOCUMENTS UNDER SEAL

(a) Sealing is Disfavored.

(1) Unless authorized by statute, rule, or court order, no litigant or third party may file any pleading, brief, exhibit, or other document under seal.

(2) Documents may be filed under temporary seal in accordance with LR 5.4 and LR 5.5, pending Court review of the required motion to seal. If authorized under LR 5.4(d), documents may be filed under seal without a motion to seal.

(3) Sealed documents should not be filed unless necessary for determination of the matter before the Court. If only non-confidential portions of a document are necessary, only those portions should be filed, immaterial portions should be redacted, and no motion to seal should be filed.

(4) The Court may impose sanctions, including attorney's fees, for filing unsupported or overly broad motions to seal, or for making unsupported or overly broad confidentiality designations that are not appropriately narrowed following a request and that necessitate the filing of a motion to seal by another party.

(5) The provisions of LR 5.4 and 5.5 are intended to minimize the filing of sealed documents, to protect the public right of access, to ensure the docket is clear so that documents can be found easily, and to allow for review of motions to seal in a way appropriate for the case and that reduces cost, time, and confusion.

(b) Rule 5.5 Orders and Duty to Advise the Court. All parties have a duty to evaluate early whether a case will involve the possibility of filing sealed documents. In any such case, the Parties must notify the Court as early as possible, and the Court will enter an order establishing specific procedures for managing motions to seal (a "LR 5.5 Order").

(1) To facilitate entry of the LR 5.5 Order, the parties must meet-and-confer and file a report in the form set forth in LR 5.5 (a "LR 5.5 Report") as follows:

a. During the Rule 26(f) Meeting. The parties must discuss the possibility of sealed documents during the Rule 26(f) meeting. The Rule 26(f) Report(s) must either (1) state that the case will not involve any confidential or sealed documents, or (2) state that the parties have separately filed a LR 5.5 Report, which must be filed no later than the filing of the Rule 26(f) Report(s). If a party determines during discovery that they have incorrectly indicated that the case will not involve any confidential or sealed documents, the parties must meet and confer and file a LR 5.5 Report within 10 days after so determining, and they must include an explanation for the late change in position.

b. On the Filing of the First Motion to Seal. If a motion to seal is filed but no LR 5.5 Report has been filed (including where a Rule 26(f) meeting has not occurred), the parties must meet and confer and file a LR 5.5 Report within 10 days of the filing of the motion to seal.

(2) The meet-and-confer required by LR 5.4(b)(1) must include all parties who have appeared in the case, as well as any third party claiming confidentiality over documents produced by the third party that have been filed or are expected to be filed in the case. If any party refuses to participate in the conference, the other parties may file the L.R. 5.5 Report and so indicate; the Court may impose sanctions on the non-compliant party, if appropriate.

(3) The meet-and-confer requirements of LR 5.4(b)(1) do not apply in cases involving a pro se party. In such cases, the parties must still present a LR 5.5 Report, jointly or individually.

(4) Proposals for LR 5.5 Orders should be specific to the needs of the case. The parties must set out their proposal(s) in detail in their LR 5.5 Report, and any such proposal must ensure that public access is provided to the greatest extent possible, that the public has notice of any request to seal, that a sufficient showing is made any time a party asks to file documents under seal as set forth in LR 5.4(c)(3), and that the process brings the request to seal before the Court in an organized way.

(5) Upon review of the LR 5.5 Report, the Court will consider the parties' proposal and may adopt it as filed, may modify the proposal, or may set the matter for a hearing to address and clarify the process for seeking to file documents under seal.

(c) Default Procedures for Motions to Seal.

(1) Applicability. These default procedures may be used only if: a. a LR 5.5 Report has not yet been required by LR 5.4(b); or b. a LR 5.5 Report has been filed but a LR 5.5 Order has not yet been entered; or c. a LR 5.5 Order has been entered authorizing use of these default procedures.

(2) Motion required. If a party seeks to file documents or portions of documents under seal, the party must file a motion to seal on the public docket containing a non-confidential description of what is to be sealed. A separate brief is not required.

(3) Supporting material required. No motion to seal will be granted without a sufficient showing by the party claiming confidentiality as to why sealing is necessary and why less drastic alternatives will not afford adequate protection, with evidentiary support, including affidavits or declarations, and with citation to any supporting statutes, case law, or other authority. If confidential information needs to be discussed or provided to make this showing, a sealed supplement to the motion to seal may be filed separately. This showing also must address the length of time for which sealing is sought. Failure to file LR 5.4(c)(3) supporting materials will result in denial of the motion to seal and unsealing of the materials without further notice.

(4) Timing for Filing Support. a. If the filing party is the party claiming confidentiality, the materials required in LR 5.4(c)(3) must be filed with the motion to seal. b. If the filing party is not the party claiming confidentiality or is not claiming it as to all of the items, the filing party should so note, and the party claiming confidentiality must file a response within 14 days of the motion to seal that includes the materials required by LR 5.4(c)(3). The response should also include any contention that the items to be sealed are irrelevant or should be stricken rather than unsealed.

(5) Objections. Any party that opposes sealing must file such objection to sealing within 14 days of the filing of the LR 5.4(c)(3) supporting materials.

(6) Checklist and Summary Chart required. A party who files a motion to seal must submit a LR 5.4 Checklist and Summary Chart to the assigned district judge's ECF mailbox within 3 business days of the filing.

(7) Withdrawal of Documents. When the party filing a motion to seal is also the party claiming confidentiality, that party may elect to withdraw the documents for which sealing is sought, if the motion to seal is denied and no other party has relied upon the documents, in which case the documents will not be considered by the Court. Any such election must be included in the initial motion to seal, and if the motion to seal does not include such an election, the documents will be unsealed if the motion to seal is denied.

(8) Temporary Filing of Sealed Documents. Until the Court rules on the motion to seal, the underlying documents for which sealing is sought shall be filed under temporary seal. To provide clarity on the CM/ECF docket, the filing party must file two complete sets of documents, one public and one under temporary seal. The public version must have placeholders or redactions for each item for which sealing is sought. The version filed under temporary seal must be a complete set which includes all exhibits, even those not subject to the motion to seal, and the information sought to be sealed must be highlighted.

(d) Exceptions. Subject to further review pursuant to LR 5.4(e), no motion or Order is required to file the following under seal:

(1) Documents for which sealing is provided by a governing statute, rule, or order, but in that case the face of the document should specifically note the statute, rule, or order providing for sealing, and the CM/ECF filer shall provide public notice in the docket entry reflecting that the document contains sealed material pursuant to the specified statute, rule, or order.

(2) Financial Affidavits of individuals seeking representation of an attorney at government expense under the Criminal Justice Act;

(3) Motions for issuance of criminal subpoenas;

(4) Motions to seal indictments and for issuance of corresponding arrest warrants;

(5) Motions for leave to subpoena witnesses at Government expense under the Criminal Justice Act;

(6) Motions for issuance of writs of habeas corpus ad testificandum;

(7) Motions filed pursuant to Section 5K1.1 of the United States Sentencing Guidelines for a downward departure;

(8) Motions filed pursuant to Section 3553(e) of Title 18, United States Code, for authority to impose a sentence below a statutory minimum;

(9) Motions filed pursuant to Rule 35 (b) of the Federal Rules of Criminal Procedure to reduce a sentence for substantial assistance;

(10) Motions and pleadings identifying national security information;

(11) Motions filed pursuant to 18 U.S.C. § 4241 for determination of mental competency to stand trial and pursuant to 18 U.S.C. § 4242 for determination of the existence of insanity at the time of the offense;

(12) Administrative records in Social Security cases;

(13) Presentence Investigation Reports, Position Papers Regarding Sentencing Factors, and other sentencing memorandums pursuant to LCrR 32.2; and

(14) Unexecuted criminal summonses or warrants.

(e) Unsealing Documents. The Court may modify orders sealing court records or the sealing of items pursuant to LR 5.4(d): (i) at any time sua sponte, (ii) at any time upon appropriate motion by a non-party not previously heard, or (iii) upon a motion by a party or non-party previously heard showing that sealing is no longer needed.

Commentary As a general rule, parties should keep to a minimum the filing of sealed documents. Case law protects generally the right of public access to documents filed in court, both under the First Amendment and the common law. Motions to seal should be narrow and specific. When only part of an exhibit or a brief is confidential, the moving party should not seek to seal the entire brief or exhibit but rather should seek only partial sealing and should comply with Rule 5.4.

Often the parties to a case will enter into a confidentiality agreement that provides that certain information exchanged between them in the course of discovery will remain confidential. The procedures described in this rule do not affect the ability of the parties to enter into such an agreement. However, the parties cannot agree to the sealing of documents filed in court without following the mandatory procedures set forth in this rule.

Proposals for LR 5.5 Orders will vary. Depending on the case, the proposal may include, for example, use of a Joint Appendix filed after briefing on a motion is complete, with a single motion to seal for confidential items contained in the Joint Appendix, or it may include exchange but not filing of briefs until after all briefing is complete, so as to reduce disagreements over what is subject to the motion to seal.

LOCAL RULE 5.4 CHECKLIST The party filing the motion to seal must submit this Checklist to the assigned district judge's ECF mailbox within three (3) business days of filing the motion to seal.

1._____ Public version filed with redactions noted for items to be sealed (Doc. #_____)

2._____ Sealed version filed with all attachments, including unredacted document(s) to be sealed (Doc. #_____)

3._____ Sealed version is highlighted to show what was redacted from the publicly-filed document(s)

4._____ Public motion to seal is filed (Doc. #____) with a non-confidential description of what is to be sealed and either: ______ a sufficient showing legally and factually as to why sealing is necessary and why less drastic alternatives to sealing will not afford adequate protection, with evidentiary support including affidavits or declarations; OR ______in the event of a motion to seal by a filing party who is not the party claiming confidentiality, with a statement that the materials are confidential items of another party or entity who will be responsible for filing LR 5.4(c)(3) materials to support the sealed filing.

5._____ Sealed supplement to motion to seal ___ was filed under seal (Doc. #____) to discuss confidential information in order to make the requisite showing; or ___ was not necessary 6._____ Does the motion include an election to have the underlying documents withdrawn if the motion to seal is denied? ____ Yes ___No 7._____ Summary Chart:

Docket No. of Public Version | Docket No. of Sealed Version | Description of Document | Party (or non-party) designating confidential | Length of time to be sealed | Any disagreement as to sealing? | Basis for Sealing 1This explanation should be short, with a more detailed explanation and supporting materials filed as required by LR 5.4(c)(3). A non-exhaustive list of examples includes: 1. reveals trade secrets of a party (or non-party) 2. reveals proprietary business methods of a party (or non-party) 3. confidential financial records 4. confidential personal health information 5. contains confidential personnel information regarding non-party employees 6. reveals information regarding a minor 7. contains information ordered sealed by the court on DATE [Docket No. XX] 8. Unknown – to be addressed by party claiming confidentiality pursuant to LR 5.4(c)(3)