Local Rule LCrR 49.1.1: SEALED RECORDS AND PUBLIC ACCESS

LCrR 49.1.1 SEALED RECORDS AND PUBLIC ACCESS

(a) Presumption of Public Filing. To further openness in criminal case proceedings, there is a presumption under applicable common law and the First Amendment that pleadings filed in this Court will be filed unsealed. Unless allowed by the United States Code, the Federal Rules of Criminal Procedure, or these Local Criminal Rules, decisions as to whether to seal a particular pleading or any portion thereof will be made on a case-by-case basis by the Court upon the filing of a motion, with findings specific enough that a reviewing court can determine whether the sealing is consistent with the First Amendment or the common law right to public access. Motions to seal a particular pleading or any portion thereof and orders disposing of such motions are governed by the requirements for sealing provided by LCvR 6.1, incorporated herein by reference.

(b) Sealing Criminal Cases. At the time of filing a complaint or information, or upon the return of an indictment, the government may move to seal such case by accompanying the charging document with an ex parte motion and proposed order requesting that all or part of the documents in the criminal case be sealed. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order submitted by the government if the facts justify sealing. The Clerk of Court shall seal the case or documents as specified in the order.

(c) Unsealing Criminal Cases. Unless the Court grants a motion to keep a case or document(s) sealed, the case or document(s) shall be unsealed as follows:

(1) Where the case involves a single defendant, at the time of the defendant's initial appearance;

(2) Where the case involves more than one defendant, at the time of the last defendant's initial appearance; or

(3) Upon motion of the government to unseal.

(d) Pending Cases. Upon a motion filed separately from the motion or pleading sought to be sealed, the Court may enter an order sealing a pending case or any portion thereof after the moving party has provided such notice as required by law or these Rules. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order if the facts justify sealing. The sealing motion and proposed order presented to the Court should specifically identify the part of the record to be sealed, such as:

(1) The case file;

(2) The case docket;

(3) A specific pleading and/or its docket entry; or

(4) The identity of new defendants brought into the case.

(e) Documents. Documents sealed by the Court or otherwise required to be sealed by statute shall be marked as such within the document caption. If the document is sealed pursuant to a prior Court order, the pleading caption must include a notation that the document is being filed under Court seal and include the order's entry date. No document shall be designated by any party as "filed under seal" or "confidential" unless:

(1) It has been sealed by prior order of the Court;

(2) It is being filed in a case that the Court has ordered sealed; or

(3) It contains material subject to a protective order entered by the Court.

(f) Case Closing. After final disposition of any criminal case where the file or documents under seal have not previously been unsealed by Court order, all sealed files, sealed pleadings, or any portions thereof shall remain sealed indefinitely until otherwise ordered by the Court on a case-by-case basis.

(g) Access to Sealed Documents. Unless otherwise ordered by the Court, access to documents and cases under seal shall be provided by the Clerk of Court only pursuant to Court order. Unless otherwise ordered by the Court, the Clerk of Court shall make no copies of sealed files or documents.

(h) Arrest, Search, and Seizure Warrants. Any application for an arrest, search, or seizure warrant shall be sealed until all the warrants have been executed and returned to the Court. No motion to seal shall be required for such materials. The government, defendant, or interested nonparties may move to unseal before the execution or delivery of all warrants. The government may move to continue the seal after the execution of all warrants. After the Court considers alternatives to sealing, the Court may enter either its own order or adopt a proposed order submitted by the government if the facts justify sealing.

(i) Public Notice. The Clerk of Court shall provide public notice by docketing the motion in a way that discloses it as a motion to seal unless otherwise ordered by the Court consistent with this Rule and applicable law. Within the time allowed by the Court for the non-moving party to respond to the motion to seal, other parties and non-parties may submit memoranda supporting or opposing the motion and may designate all or part of the memoranda as confidential. Any confidential memorandum will be treated as sealed pending the outcome of the ruling on the motion. While the Court may act on a motion to seal before the time for response has run, motions to unseal may be filed at any time by a party or third person.

Advisory Committee Notes Proposed LCrR 49.1(a) remedies the earlier issues raised under former LCrR 55.1(h) by providing that parties must seek leave of Court to file matters under seal unless allowed to seal as a matter of federal law, a federal rule, or these Local Rules. The new Rule then incorporates by reference LCvR 6.1, which details procedures and what must be shown to seal a filing. It should be noted that submissions to the Court by USPO are not technically sealed, but are "non-public" submissions. See Fed. R. Crim. P. 32 & 49.1 (Advisory Committee Notes, 2007 Adoption). The Advisory Committee notes that while counsel in criminal litigation have experience in seeking leave to file under seal, it may be appropriate for a subgroup, perhaps drawn from IP litigation, to form an advisory group to provide examples of effective motions and briefs. Likewise, due to the anticipated increase in motions to seal, the Court may wish to develop template orders touching on Rule 6.1 concerns.