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Case v. Law: Part 2: A Federal Survey on Protecting Confidential Information

The February 2012 issue of Pro Te: Solutio provides information on how federal district courts across the United States (from Alabama through Montana) handle the filing of confidential information. Part Two of this article surveys district courts in Nebraska through Wyoming.

Nebraska: The U.S. District Court for the District of Nebraska has enacted Local General Rule 1.3 regarding restrictions on access to sealed documents and documents containing personal identifying information protected by the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (Dec. 17, 2002) (codified at 5 U.S.C. §§ 3701-3707 and scattered sections). Parties and their attorneys are responsible under the rule for preventing the disclosure of certain confidential information in case filings. The clerk does not review case filings for compliance or independently redact or seal non-complying filings. Nebraska District Court’s Local Civil Rule 5.0.3 regarding privacy addresses mandatory and discretionary redaction for all filings with the court. Under this rule, the filing party may redact the following information from all documents and exhibits filed electronically or non-electronically, unless the assigned judge orders otherwise:

(1) personal identifying numbers, such as driver’s license numbers;

(2) home street addresses;

(3) medical or psychological records;

(4) employment history;

(5) individual financial information;

(6) proprietary or trade secret information;

(7) information that may identify a cooperating individual;

(8) information regarding a crime victim;

(9) national security information;

(10) sensitive security information as described in 49 U.S.C. § 114(s);

(11) education records as defined by 20 U.S.C. § 1232g(a)(4)(A); and

(12) other data as the court orders.

Nebraska Civil Rule 5.0.3 also provides that a party may restrict access to unredacted documents with the court’s leave. Nebraska Civil Rule 7.5 provides the procedure for sealing documents and objects.

Nevada: Rule 10-5 of the Local Rules for the U.S. District Court for the District of Nevada provides for notices for in camera submissions and motions seeking leave to seal documents. Rule 16.1-4 regarding confidentiality mandates that “[d]iscovery and initial disclosures […] cannot be withheld on the basis of confidentiality absent court order. Not later than fourteen (14) days after the Initial Scheduling Conference, the parties shall file a proposed protective order. Pending entry of a discovery confidentiality protective order, disclosures deemed confidential by a party shall be produced with a confidential designation (e.g., ‘Confidential — Attorneys Eyes Only’), and the disclosure of the information will be limited to each party’s outside counsel of record, including employees of outside counsel of record, and used only for litigation purposes.”

New Hampshire: Rule 37.1 of the Local Rules of the U.S. District Court of New Hampshire Motions provides the process for obtaining a protective order and sealing documents, which includes a requirement of a verbatim recitation of each interrogatory, request, answer, response, and objection, or a copy of the actual discovery document which is the subject of the motion, provided that the party shall file only that portion of the discovery document that is objected to or is the subject of the motion. When the court rules on a discovery motion, the discovery requested or relief sought shall be provided within fourteen (14) days of the court order, unless the order specifies a different time. All filings, orders, and docket entries shall be public unless a filing, order, or docket entry must be sealed pursuant to state law, federal law, the Federal Rules of Criminal or Civil Procedure, or Local Rules; a filing, order, or docket entry has been sealed by order of another court or agency; or the court issues an order sealing a filing, order, or docket entry. Rule 37.1 also provides for two levels of sealed filings. Filings, orders, and docket entries sealed at Level I may be reviewed by any attorney appearing in the action without prior leave of court. Filings, orders, and docket entries sealed at Level II may be reviewed only by the filer or, in the case of an order, the person to whom the order is directed without prior leave of court.

A motion to seal must be filed before the sealed material is submitted or, alternatively, the item to be sealed may be tendered with the motion and both will be accepted provisionally under seal, subject to the court’s subsequent ruling on the motion. The motion must explain the basis for sealing, specify the proposed duration of the sealing order, and designate whether the material is to be sealed at Level I or Level II. Any motion to seal, upon specific request, may also be sealed if it contains a discussion of the confidential material. If the court denies the motion to seal, any materials tendered under provisional seal will be returned to the movant. This rule sets forth filing procedures for submitting materials under seal or requesting sealed status.

Local Rule 83.8 presents provisions for special orders in “widely publicized and sensational cases,” including issuance of a special order governing matters such as extrajudicial statements by parties and witnesses likely to interfere with the conduct of a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the court deems appropriate.

New Jersey: In the U.S. District Court for the District of New Jersey, Rule 5.3 addresses protective orders and public access under CM/ECF. Subject to this rule and to statute or other law, all materials and judicial proceedings are matters of public record and shall not be sealed. Notwithstanding, parties may enter into written agreements to keep materials produced in discovery confidential and to return or destroy such materials as agreed by parties and as allowed by law. Parties may submit to a judge or magistrate judge an agreed-upon form of order which embodies a written agreement. Any such form of order must be accompanied by an affidavit or attorney certification filed electronically under the designation “affidavit/certification in support of discovery confidentiality order.” The affidavit or attorney certification shall describe: (a) the nature of the materials to be kept confidential: (b) the legitimate private or public interests which warrant confidentiality: and (c) the clearly defined and serious injury that would result should the order not be entered. The affidavit or attorney certification shall be available for public review. No form of order submitted by parties shall supersede the provisions of this rule with regard to the filing of materials or judicial proceedings. The form of order may, however, provide for the return or destruction of discovery materials as agreed by parties. The form of order shall be subject to modification by a judge or magistrate judge at any time. Any dispute regarding the entry of, or the confidentiality of discovery materials under, any order under this section shall be brought before a magistrate judge pursuant to L. Civ. R. 37.1(a)(1).

Any request by a party or parties to seal, or otherwise restrict public access to, any materials or judicial proceedings shall be made by formal motion per L.R. 5.3(c). However, any motion to seal or otherwise restrict public access shall be available for review by the public. The motion papers shall describe: (a) the nature of the materials or proceedings at issue: (b) the legitimate private or public interests which warrant the relief sought: (c) the clearly defined and serious injury that would result if the relief sought is not granted: and (d) why a less restrictive alternative to the relief sought is not available. Proposed Findings of Fact and Conclusions of Law shall be submitted with the motion papers in the proposed order. If the information required is not within the knowledge of the movant, supplemental motion papers in support of the motion may be filed by a party, individual, or entity having such knowledge not later than fourteen (14) days after the filing of the motion. Any materials deemed confidential by a party or parties and submitted with regard to a motion to seal or otherwise restrict public access shall be filed electronically under the designation “confidential materials” and shall remain sealed until such time as the motion is decided. When a document filed under seal contains both confidential and non-confidential information, an unredacted version shall be filed under seal, and a version with only the confidential portions redacted shall be filed publicly. Any interested person may move to intervene pursuant to Fed. R. Civ. P. 24 (b) before the return date of any motion to seal or otherwise restrict public access.

Notwithstanding the above, on emergent application of a party or parties or sua sponte, a judge or magistrate judge may seal or otherwise restrict public access to materials or judicial proceedings on a temporary basis. The judge or magistrate judge shall do so by order which sets forth the basis for the temporary relief and which shall be filed electronically under the designation “temporary order to seal.” Any interested person may move pursuant to L. Civ. R. 7.1 and Fed. R. Civ. P. 24 (b) to intervene, which motion shall be made returnable on the next available return date.

No party or parties shall submit a proposed settlement agreement for approval by a judge or magistrate judge unless required to do so by statute or other law or for the purpose of retaining jurisdiction. Any settlement agreement filed with the court or incorporated into an order shall, absent an appropriate showing under federal law, be deemed a public record and available for public review.

Local Rule 5.3 also contains a comprehensive explanatory note, including the history of the Rule and its amendments, as well as annotations regarding each subsection.

New Mexico: Rule 37.1 of the Local Rules of the New Mexico U.S. District Court sets forth the procedure for submitting a motion for relief sought by protective order in discovery, including requirements that the movant attach a copy of the interrogatory, request for production or inspection, relevant portion of deposition transcript, or request for admission; and the response or objection thereto, and that the motion must comply with the requirements of the Local Rules. D.N.M.LR-Civ. 7.

New York: The Southern and Eastern Districts of New York do not have specific local rules addressing the filing of confidential documents. Rule 2.2 of the Local Rules for the Northern District of New York provides that not later than fourteen days (14) prior to the initial Rule 16 Conference and after conferring regarding the matter, the parties may, if desired, submit either a stipulated protective order pursuant to Fed. R. Civ. P. 26(c) or, if agreement cannot be reached, may each submit a counter-proposed protective order for the court’s consideration, highlighting for the court any areas of disagreement. In the event that the parties do not request the entry of a different Rule 26(c) confidentiality order at or prior to the Rule 16 scheduling conference, or if otherwise deemed appropriate, the court will enter a protective order pursuant to Fed. R. Civ. P. 26(c) in the form of that provided on the court’s webpage at www.nynd.uscourts.gov.

In the Western District of New York, Rule 5.3 addresses the sealing of complaints and documents in civil cases. This rule sets forth that, except where restrictions are imposed by statute or rule, there is a presumption that court documents are accessible to the public and that a substantial showing is necessary to restrict access. Upon a proper showing, the court may, sua sponte, enter an order directing that a case be sealed in its entirety, or as to certain parties or documents. The court may do so when the case is initiated, or at any stage of the proceeding. A party seeking to have a document, party, or case sealed shall comply with the procedures set forth in the court’s CM/ECF Administrative Procedures Guide (available at http://www.nywd.uscourts.gov/mambo/index.php?option=com_content&task=view&id=21&Itemid=26). A complaint presented for filing with a motion to seal and proposed order shall be treated as a sealed case pending approval of the proposed order, and the filing party shall comply with the sealing procedures set forth in the Guide. Unless otherwise directed by the court, a sealed document or case shall remain sealed even after final disposition of the case. A party seeking to have a sealed document unsealed must seek relief by motion on notice.

North Carolina: In the Eastern District of North Carolina, Rule 79.2 addresses the submission and filing of sealed documents. No cases or documents may be sealed without an order from the court. A party desiring to file a document under seal must first file a motion seeking leave in accordance with the court’s CM/ECF Policy Manual (available at http://www.nced.uscourts.gov/cmecf/default.aspx). All sealed and proposed documents shall be maintained electronically in CM/ECF unless otherwise ordered by the court. Unless otherwise permitted by the Policy Manual or order of the court, all proposed sealed documents must be accompanied by a motion to seal. The motion to seal shall be a public document and noted with a docket entry that gives the public notice of the request to seal. The docket entry for the proposed sealed document shall identify it as a “proposed” sealed document and describe the type of document it is (e.g., affidavit, record) and the substantive motion or other specific proceedings in the case to which it relates (e.g., “in support of defendant’s motion to compel at D.E.____”). The proposed sealed document is deemed to be provisionally sealed until the court rules on the motion to seal. If the motion to seal is granted, the clerk will remove the word “proposed” from the docket entry. If the motion to seal is denied, the document will remain sealed and the word “proposed” will remain in the docket entry for the document in order to preserve the record. The document will not be considered by the court, except as provided by the Rule or as otherwise ordered by the court. A party desiring to remove a proposed sealed document or docket entry from the docket sheet must file a motion to strike in accordance with Local Civil Rule 7.1. A party whose motion to seal is denied but that desires the court to consider a proposed sealed document as a publicly filed document shall file the document as a public document within three (3) days after entry of the order denying the motion to seal or within such other period as the court directs. This Rule also provides the process for the return of sealed documents.

In the Western District of North Carolina, Rule 6.1 addresses sealed filings and public access. Under this rule, no materials may be filed under seal except by order of the court, pursuant to a statute, or in accordance with a previously entered Rule 26(e) Protective Order. A request by a party to file materials under seal shall be made by formal motion, separate and apart from the motion or other pleading sought to be sealed, pursuant to the Local Rules. Such motion shall be filed electronically under the designation “Motion to Seal.” The motion or supporting brief shall set forth:

(1) a non-confidential description of the material sought to be sealed;

(2) a statement as to why sealing is necessary and why there are no alternatives to filing under seal;

(3) unless permanent sealing is sought, a statement as to the period of time the party seeks to have the material maintained under seal and as to how the matter is to be handled upon unsealing; and

(4) supporting statutes, case law, or other authority.

If necessary, information deemed confidential by a party may be redacted from the filed motion or brief and an unredacted version submitted under seal for in camera review. Materials deemed confidential may be submitted under seal for in camera review via cyberclerk. No motion to seal or otherwise restrict public access shall be determined without reasonable public notice. Notice shall be deemed reasonable where a motion is filed in accordance with the provisions of Rule 6.1. Other parties, interveners, and non-parties may file objections and briefs in opposition or support of the motion within the time provided by L.R. 7.1 and may move to intervene under Fed. R. Civ. P. 24. Orders sealing or otherwise restricting access shall reflect consideration of the factors set forth in Rule 6.1. In the discretion of the court, such orders may be filed electronically or conventionally and may be redacted. After an order permitting the filing under seal has been entered, any materials filed pursuant to that order shall be filed electronically with a non-confidential description of the materials filed. However, this Local Rule shall not limit the right of a party, intervenor, or non-party to file a motion to unseal material at any time. Such a motion to unseal shall include a statement of reasons why the material should be unsealed and any change in circumstances that would warrant unsealing. Unless otherwise ordered by a court, any case file or documents under court seal that have not previously been unsealed by the court shall be unsealed at the time of final disposition of the case. Unless otherwise ordered by the court, access to documents and cases under court 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 cases files or documents. However, nothing in this Local Rule limits the ability of parties, by agreement, to restrict access to discovery or other materials not filed with the court or to submit motions pursuant to Fed. R. Civ. P. for a Protective Order governing such materials.

North Dakota: Local Civil Rule 37.1 mandates an obligation to confer prior to a party submitting a motion for protective order, for the purpose of making a reasonable, good faith effort to resolve the dispute without involving the court. The filing of sealed documents and sealed files is governed by the court’s “Administrative Policy Governing Electronic Filing and Service,” available at http://www.ndd.uscourts.gov/cm_ecf.html.

Ohio: There is no local rule in the Northern District of Ohio governing confidentiality or sealing of information in civil cases. However, the Southern District’s Local Rule 26.2 governs the protection of personal privacy in civil actions.

Oklahoma: In the Western district of Oklahoma, the court’s form for the parties’ Joint Status Report and Discovery Plan provides for the identification of necessary protective orders in the initial case management order. (Local Rules, Appendix II).

In the Eastern District of Oklahoma, Local Rule 79.1 provides that it is the court’s policy that sealed documents, confidentiality agreements, and protective orders are disfavored. Sealed documents and confidentiality agreements may be approved by the court only upon a showing that a legally protected interest of a party, non-party, or witness outweighs the compelling public interest in the disclosure of records. A party seeking to file a document under seal shall file a motion which meets the specific requirements of Rule 79.1. Titles of sealed pleadings will be docketed publicly, so caution should be taken to remove confidential information from such titles.

Similarly, in the Northern District of Oklahoma, Local Rule 79.1 provides that sealed documents, confidentiality agreements, and protective orders — which are disfavored — may be approved by the court only upon a showing that a legally protected interest of a party, non-party, or witness outweighs the compelling public interest in disclosure of records. All protective orders dealing with confidentiality must be approved by a magistrate judge and filed of record. In civil cases in which confidential information covered by a protective order must be attached to a pleading, attorneys should file an unsealed pleading with non-confidential exhibits and redacted confidential exhibits. At the same time, attorneys should file a supplemental sealed pleading which contains the unredacted exhibits covered by the protective order. The court strongly urges attorneys to present all arguments and all documents in unsealed pleadings. In an effort to do this, the Rule states that attorneys should use good judgment in generically referring to matters covered by a protective order without revealing confidential information. In those rare instances where specific confidential documents must be attached to a pleading, attorneys should file the supplemental sealed pleading referenced above. A person seeking to file a document under seal in a public case shall electronically file both a motion to seal and the sealed document separately. The motion seeking such an order must contain sufficient facts to overcome the presumption in favor of disclosure and may itself be filed under seal. The relief sought shall be narrowly tailored to serve the specific interest sought to be protected. A proposed order shall be submitted. If the motion to seal is denied, the court will direct that the document either be stricken or be unsealed.

Oregon: In Oregon U.S. District Court, Local Rule 5.2 governs the redaction of filings, stating that the responsibility to redact filings pursuant to Fed. R. Civ. P. 5.2 rests with counsel and the party or non-party making the filing. The clerk’s office is not required to review documents filed with the court for compliance with Fed. R. Civ. P. 5.2. Local Rule 26-4 sets forth the provision for motions for protective orders: “A party or person asserting there is good cause for the court to make an order that would limit access to discovery materials not filed with the court, or would authorize a party or person to file any materials with the court under seal, must show with respect to each particular material or category of materials that specific prejudice or harm will result if no order is granted. The showing must be sufficiently detailed to permit the court in its good cause examination to identify specific factors supporting entry of the order sought. Where the order sought would authorize a party to file materials under seal, the showing also must articulate why, as an alternative to filing under seal, the information sought to be protected could not be redacted. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the requirements of this rule. The showing must be made even if the other party stipulates to the entry of the order.”

Pennsylvania: In the Eastern District of Pennsylvania, Local Rule 5.1.2 directs that documents ordered to be placed under seal must be filed in paper copy filed in the traditional manner and not electronically. A motion to file documents under seal may be filed electronically unless prohibited by law. The order of the court authorizing the filing of documents under seal may be filed electronically unless prohibited by law. A paper copy of the order must be attached to the documents under seal and be delivered to the clerk of court.

In Pennsylvania Federal Court’s Middle District, Local Rule 7.5 requires that if a party submits a motion seeking a protective order, a supporting brief shall be filed with the motion. However, a brief shall not be required in support of any motion which has concurrence of all parties, and the reasons for the motion and the relief sought are fully stated therein. Rule 5 of the Middle District’s Local Rules provides that if entry of a protective order is sought, the movant must attach to such statement a copy of the proposed order, and include a statement justifying the propriety of such a protective order under existing Third Circuit precedent. Under Rule 5.2, if there is a dispute about whether a protective order should be entered, or about certain terms of the proposed order, each party’s position should be summarized.

District of Puerto Rico: The U.S. District Court for the District of Puerto Rico does not have a specific local rule regarding confidentiality or protective orders.

Rhode Island: General Local Rule 102 addresses documents containing confidential information. It states that, in compliance with Fed. R. Civ. P. 5.2, Fed. R. Crim. P. 49.1, and the policy of the Judicial Conference of the United States, and in order to address the privacy concerns created by internet access to court documents, parties or non-parties shall refrain from including, or shall partially redact where inclusion is necessary, the enumerated personal data identifiers from all documents filed with the court. It is the responsibility of any party or non-party filing a document, not the clerk’s office, to review each document to determine if pleadings must be modified and are in the proper form. In cases where the personal information does appear on documents filed with the court, the party or non-party responsible for the filing shall file a Motion to Redact, along with a redacted version of the document containing personal information in compliance with Fed. R. Civ. P. 5.2, Fed. R. Crim. P. 49.1, and Judicial Conference policy. Upon receipt of the Motion to Redact, the clerk shall grant the motion by text order, restrict the document containing the above personal information from the docket, and replace it with the redacted version. Documents filed with the court may not be sealed unless ordered by the court. If a party or non-party filing a document has a good faith basis for believing that a document should be sealed, the document shall be accompanied by a motion to seal, which explains why the document should be sealed. Unless the court otherwise permits, if a party or non-party has good reason to believe that a document that such party or non-party proposes to file contains material that another party or non-party would maintain is confidential, the document shall not be filed until such other party or non-party has been notified and afforded an opportunity to file a motion to seal. If only a portion of a document contains confidential information, the party or non-party requesting sealing shall file both an unredacted version of the document and a redacted version that excises the confidential information. The motion to seal shall not be filed electronically, but shall be filed by hand or by mail, together with the documents or materials which are the subject of the motion. Upon receipt of a motion to seal in a civil case, the clerk shall docket the motion but not the documents which are the subject of the motion and shall immediately transmit the motion and documents to the chambers of the judge to whom the case has been assigned. If the court grants the motion to seal and unless otherwise ordered by the court, the sealed envelope shall be retained by the clerk in a secure location until further order of the court. If the court denies the motion to seal, the motion shall be docketed and filed in accordance with these Local Rules, and the memorandum and the documents accompanying the motion shall be returned to the filer, unless otherwise ordered by the court.

South Carolina: Under South Carolina District Court’s Local Rule 5.03, absent a requirement to seal in the governing rule, statute, or order, any party seeking to file documents under seal shall follow the mandatory procedure described in the Rule. Failure to obtain prior approval shall result in summary denial of any request or attempt to seal filed documents. Nothing in the Rule limits the ability of the parties, by agreement, to restrict access to documents which are not filed with the court.

Local Civil Rule 26.08 sets forth that there is no requirement for prior judicial approval of protective agreements intended to limit access to and use of materials gained in discovery. Protective agreements or orders which address the filing of documents with the court shall, however, require compliance with Local Civil Rule 5.03, or such other procedures as the court directs, before any document is filed under seal. Discovery materials protected by a court order issued pursuant to Fed. R. Civ. P. 26(c) shall not be filed without compliance with Local Civil Rule 5.03 unless the order provides other procedures to satisfy the requirements of governing case law.

South Dakota: In U.S. District Court in South Dakota, Civil Local Rule 5.2 requires parties to refrain from including or to partially redact certain personal information where inclusion is necessary. The Rule also provides that, when the court has entered a Protective Order, there is no need to file a redacted document. Rather, the party is to deliver the protected document to be filed under seal to the clerk’s office with a cover sheet stating: “This document to be filed under seal pursuant to the Protection Order issued on [insert date].” When received, the clerk’s office will file the document using the “Sealed Document” event.

Tennessee: In the Eastern District of Tennessee, Local Rule 26.2 sets forth the process of sealing of court records. Except as otherwise provided by statute, rule, or order, all pleadings and other papers of any nature filed with the court shall become a part of the public record. Court records or portions thereof shall not be placed under seal unless and except to the extent that the person seeking the sealing thereof shall have first obtained, for good cause shown, an order of the court specifying those court records, categories of court records, or portions thereof which shall be placed under seal; provided, however, documents that are the subject of a motion to seal may be temporarily placed in the court record under seal pending a ruling on the motion. Unless the court orders otherwise, the parties shall file with the court redacted versions of any court record where only a portion thereof is to be placed under seal.

Local Rule 8.1 of the Rules of the Western District of Tennessee provides the policy of the court that whenever an e-filer desires to electronically file a document under seal, the e-filer may do so, and ECF has been designed to allow the filer to make that option available whenever desired. The court will subsequently decide precisely how long a sealed filing will remain under seal, but initially any document can be filed under seal. Further, a document subject to an existing sealing order or sealing statute shall be filed electronically under seal pursuant to those procedures set forth in the court’s ECF User Manual. Under Local Rule 13.3, any case or document under seal shall not be available to the public through electronic or any other means; however, attorneys may be permitted access to sealed documents in cases in which they appear with permission of the court. Rule 13.4 mandates that attorneys are responsible for ensuring that their clients have sufficient information so that informed decisions are made regarding the inclusion, redaction, and exclusion of personal information in filings with the court. This Rule goes on to set forth the mandatory and discretionary redaction requirements of certain personal identifiers. Rule 13.4.3 requires attorneys and parties to exercise caution and consider redaction or consider filing a sealed document if specific other sensitive information is referenced, including medical records, proprietary or trade secret information, or employment history. Responsibility for redacting this information rests solely with attorneys and the parties. The clerk of court will not review filings for compliance. Attorneys and the parties are cautioned that their failure to protect the above-listed information may subject them to the disciplinary power of the court and may be the basis for claims against them.

In the Middle District, Local Rule 37.01 requires counsel for a party moving for a protective order to file with the court, at the time of the filing of the motion, a statement certifying that he has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the issues raised and that counsel have not been able to do so. No such motion shall be considered by the court absent compliance with this Rule. If certain of the issues have been resolved by agreement, the statement shall specify the issues remaining unresolved.

Texas: In the Northern District of Texas, Local Rule 79.3 provides the process for a party wishing to file a motion to seal a document. A party may file under seal any document that a statute or rule requires or permits to be so filed. If no statute or rule requires or permits a document to be filed under seal, a party may file a document under seal only on motion and by permission of the presiding judge. When a party files on paper a motion for leave to file a document under seal, the clerk must file the motion under seal. The party must attach as an exhibit to the motion a copy of the document to be filed under seal. The party must also submit with the motion the original and a judge’s copy of the document to be filed under seal. The original of the document must neither be physically attached to the motion nor made an exhibit to the motion. If leave to file the document under seal is granted, the clerk must file the original of the document under seal. When a party files by electronic means a motion for leave to file a document under seal, the party may file the motion under seal and must attach the proposed sealed document as an exhibit. If leave is granted, the party must file the document under seal by electronic means. Unless the presiding judge otherwise directs, all sealed documents maintained on paper will be deemed unsealed 60 days after final disposition of a case. L.R. 79.4. A party that desires that such a document remain sealed must move for this relief before the expiration of the 60-day period.

Local Rule 5 of the Eastern District of Texas provides that, unless authorized by statute or rule, a document in a civil case shall not be filed under seal unless it contains a statement by counsel following the certificate of service that certifies that: (1) a motion to seal the document has been filed or; (2) the court already has granted authorization to seal the document. A motion to file document(s) under seal must be filed separately from the document(s) sought to be sealed. A motion to seal that is filed as a sealed document does not need to include the certification. Documents requested or authorized to be filed under seal or ex parte shall be filed in electronic form. Counsel is responsible for serving documents under seal to opposing counsel and may do so in electronic form. When a sealed order is entered by the court, the clerk will send a sealed copy of the order only to the lead attorney for each party who is responsible for distributing the order to all other counsel of record for that party.

Local Rule 5-2 of the Eastern District of Texas addresses the privacy of court filings, namely the redaction of personal identifying information from transcripts.

In the Western District of Texas, Rule 26(c) sets forth that, upon a motion by any party, the court shall enter a protective order in the form set out in Appendix “H” to the Local Rules, absent a showing of good cause by any party opposing entry of the order. In cases where the parties agree to a protective order, the form set out in Appendix “H” is approved.

In Texas District Court’s Southern District, Local Rule 83.6 addresses preserving confidentiality. On the filing of a civil action that the party desires be sealed, the party shall present an application to the clerk attaching the complaint and accompanying materials in a sealed envelope marked “sealed exhibit.” A miscellaneous case number will be assigned and the case file presented to the miscellaneous judge. Once that judge has ruled on the application, the case file and order will be returned immediately to the clerk for the drawing of a civil action number and random assignment to a judge.

Utah: Local Rule 5-2 provides for the procedure for filing cases and documents under seal. On motion of one or more parties and a showing of good cause, the court or, upon referral, a magistrate judge, may order all or a portion of the documents filed in a civil case to be sealed. A case may be sealed at the time it is filed upon ex parte motion of the plaintiff or petitioner and execution by the court of a written order. The case will be listed on the clerk’s case index as Sealed Plaintiff vs. Sealed Defendant. A pending case may be sealed at any time upon motion of either party and execution by the court of a written order. Unless the court otherwise orders, neither the clerk’s automated case index nor the existing case docket will be modified. No document may be designated by any party as “Filed under Seal” or “Confidential” unless: (1) it is accompanied by a court order sealing the document; (2) it is being filed in a case that the court has ordered sealed; or (3) it contains material that is the subject of a protective order entered by the court. Unless otherwise ordered by the court, the clerk will provide access to cases and documents under court seal only on court order. Unless otherwise ordered by the court, the clerk will make no copies of sealed case files or documents.

Rule 5.2 also addresses redacting personal identifiers in pleadings. The filer shall redact personal information in filings with the court, as required by Fed. R. Civ. P. 5.2. The court may order redaction of additional personal identifiers by motion and order in a specific case or as to a specific document or documents. Any protective order under Fed. R. Civ. P. 26(c) may include redaction requirements for public filings. This Local Rule also provides the requirements and responsibilities of attorneys to review transcripts for personal information which is required to be redacted under Fed. R. Civ. P 5.2 and provide notice to the court reporter of the redactions.

Vermont: Rule 5.2 of the Local Rules of the U.S. District Court for the District of Vermont provides the procedure for sealing documents. Cases or court documents cannot be sealed without a court order. Otherwise, all official files in the court’s possession are public documents. In order to seal a document, a party must: (1) file a separate motion for each document; (2) place the document in a sealed envelope; (3) affix a copy of the document’s cover page (with confidential information redacted) to the outside of the envelope; and (4) conspicuously mark the envelope with “SEALED DOCUMENT” or the equivalent.

Virginia: Rule 5 of the Eastern District of Virginia’s local civil rules provides that unless otherwise provided by law or court rule, no document may be filed under seal without an order entered by the court. A party submitting a document or portion of a document for filing under seal pursuant to a governing statute, rule, or order shall note on the face of the document that it or a portion of it is filed under seal pursuant to that statute, rule, or order. Any motion for a protective order providing prospectively for filing of documents under seal shall be accompanied by a non-confidential supporting memorandum, a notice that identifies the motion as a sealing motion, and a proposed order. A confidential memorandum for in camera review may also be submitted. The non-confidential memorandum and the proposed order shall include: (1) A non-confidential description of what is to be sealed; (2) A statement as to why sealing is necessary, and why another procedure will not suffice; (3) References to governing case law; and (4) Unless permanent sealing is sought, a statement as to the period of time the party seeks to have the matter maintained under seal and as to how the matter is to be handled upon unsealing. The proposed order shall recite the findings required by governing case law to support the proposed sealing. Other parties and non-parties may submit memoranda in support of or opposition to the motion, and may designate all or part of such memoranda as confidential. Any confidential memoranda will be treated as sealed pending the outcome of the ruling on the motion. Nothing in this Local Civil Rule limits the ability of the parties, by agreement, to restrict access to documents which are not filed with the court. Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.

Similarly, in the Western District of Virginia, Rule 9 governs sealed documents and states that a document (including a motion or other pleading) may be filed or placed under seal only if permitted by order of the court. Portions of a document cannot be filed or placed under seal — only the entire document may be sealed. A sealed document is a document to which access other than by the court or authorized court personnel is prohibited or restricted. The clerk may not otherwise disclose any sealed document except upon order of the court. To obtain an order allowing a document to be filed or placed under seal, a party must file an unsealed written motion containing: (1) a non-confidential description of the document to be sealed; (2) the non-confidential reasons why sealing is necessary, including the reasons why alternatives to sealing are inadequate; and (3) the duration for which sealing is requested. The party must also submit to the court at the same time a proposed unsealed order granting the motion, which order must contain findings setting forth the matters contained in (1), (2), and (3) above. The motion to seal must be accompanied by the document that is to be placed under seal, if it has not already been submitted. The document will be kept under seal by the clerk temporarily pending a decision by the court on the motion to seal. If the motion to seal is denied, the document will be returned by the clerk to the party submitting it, unless the court orders otherwise. Any motion requesting an order allowing a document to be filed under seal must be docketed in such a way to give public notice of its nature as a motion to seal. Any party or nonparty may file an objection to any motion to seal or to the sealing of any document or may file a motion to unseal a document previously sealed. These provisions do not limit the ability of the parties by a confidentiality agreement or otherwise to restrict access to documents that are not filed with the court. No confidentiality agreement or other agreement of the parties, however, will allow the filing of sealed documents without adherence to these provisions. A separate motion must be filed in each instance that a document is to be filed under seal. Whenever a document is unsealed, any related order or motion under seal will be unsealed, unless the court orders otherwise. In order to extend the period of time for which a document is to be sealed, an order of the court must be obtained using the procedures set forth in Rule 9. No motion or order, however, is required for the filing under seal of an unredacted version of a document or a reference list containing personal data identifiers, in compliance with these rules, the federal rules of procedure, or the E-Government Act, or an ex parte motion, under circumstances where such ex parte application is permitted.

Washington: In U.S. District Court for the Western District of Washington, Local Civil Rule 26(c) addresses protective orders, setting forth that any motion for a protective order must include 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. A good faith effort to confer under the Rule requires a face-to-face meeting or a telephone conference. If the court finds that counsel for any party, or a party proceeding pro se, willfully refuses to confer, fails to confer in good faith, or fails to respond on a timely basis to a request to confer, the court may take actions including a determination of an abandonment or failure to prosecute or defend diligently, and judgment may be entered against the defaulting party either with respect to a specific issue or the entire case, or it may issue other sanctions as the court may deem appropriate. The court will not sign stipulated protective orders to allow the sealing of unidentified documents that the parties have marked or expect to mark as confidential during discovery. Instead, parties seeking to file documents under seal must comply with the requirements of Local Civil Rule 5(g).

In the Eastern District of Washington, Local Rule 37.1 governs discovery motions and provides that motions for protective orders must set forth, without reference to other pleadings or documents, the objects sought to be produced. This rules also mandates an obligation to confer prior to submitting such motion. If they are unable to do so, at least fourteen (14) days before the date of the hearing, the parties shall file a statement setting forth the matters on which they have been unable to agree.

West Virginia: Rule 5.2.1 of the Local Rules of West Virginia’s Southern District recognizes privacy protection for filings made with the court and transcripts of hearings, and provides for specific information to be partially redacted or omitted. The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The clerk will not review each pleading for compliance with this rule.

In the Northern District of West Virginia, Local Rule 6.0.1 states the requisites for filing a document under seal, including the requirement that a party must first electronically file a Motion for Leave to File Under Seal. If the Motion for Leave to File Under Seal itself contains sensitive information, the party shall: (1) Electronically file it under seal in CM/ECF and, because this is a sealed event that is inaccessible to recipients of the notice of electronic filing, parties shall effect service of process traditionally, or (2) File the motion with the clerk’s office in paper. The clerk’s office will then file the motion under seal. The parties remain responsible for effecting service of process traditionally. Along with the motion to file under seal, the party shall file a memorandum of law that explains why sealing is required. If necessary, the filer may present exhibits that contain the sensitive information in an envelope marked “sealed” to the clerk’s office. If filing the Motion for Leave to File Under Seal is itself filed under seal, the filer may attach the exhibits to the Motion for Leave to File Under Seal. If the court grants the Motion for Leave to File Under Seal, the judge will electronically enter the order authorizing the filing of the documents in the appropriate manner. The party then may file the document under seal in CM/ECF or may bring the document to the clerk’s office to be filed as appropriate. Sealed filings produce a notice of electronic filing, but the recipient cannot open the attached document. Consequently, filers must effect service through traditional means, as appropriate.

The Northern District’s Local Rule 26.05 governs protective orders and sealed documents. It provides that if a party, or parties jointly, seek entry of a protective order to shield information from dissemination, the movant or movants must demonstrate with specificity that: (1) the information qualifies for protection under F. R. Civ. P. 26(c); and (2) good cause exists for restricting dissemination on the grounds that harm would result from its disclosure. The rule notes that requiring public inspection of court documents is necessary to allow interested parties to judge the court’s work product in the cases assigned to it, and that this rule may be abrogated only in exceptional circumstances. Unless otherwise authorized by law, a motion to seal shall be accompanied by a memorandum of law which contains the reasons why sealing is necessary, including the reasons why alternatives to sealing, such as redaction, are inadequate; the requested duration of the proposed seal; and a discussion of the propriety of sealing, giving due regard to the parameters of the common law and First Amendment rights of access as interpreted by the Supreme Court and the Court of Appeals.

Wisconsin: In the Eastern District of Wisconsin, General Local Rule 79(d) addresses confidential matters and sealed records. Subject to its Local Rules, the court will consider all documents to have been filed publicly unless they are accompanied by a separate motion requesting that the documents, or portions thereof, be sealed by the court. Any motion to seal must be accompanied by proof of good cause for withholding the material from the public record. All material that a party seeks to have treated as confidential, but as to which no sealing order has been entered, must be filed in a sealed envelope conspicuously marked “Request for Confidentiality Pending,” together with a motion requesting an order to seal. The separate motion for sealing must be publicly filed and must generally identify the documents contained in the sealed envelope. The documents must be transmitted by the clerk of court in a sealed envelope to the judge, together with the moving papers. If the motion is denied, the documents must be filed by the clerk of court in an open file, unless otherwise ordered by the judge assigned to the case. To the extent that any answers to interrogatories, transcripts of depositions, responses to requests for admissions, or any other papers filed or to be filed with the court contain material designated as confidential, these papers, or any portion thereof, must be filed under seal by the filing party with the clerk of court in an envelope marked “SEALED.” Any party filing material claimed to be confidential must include with that filing either: (1) a motion to seal the material pursuant to this rule; or (2) an objection to the designation of the material as confidential and a statement that the objection to the designation has been provided to the person claiming confidentiality. If such an objection is made, the person having designated the material as confidential may file a motion to seal within twenty-one (21) days of the objection. The comment to this rule notes that a motion to seal should be limited to that portion of the material necessary to protect the movant from the harm that may result from disclosure, e.g., the fact that a single page or paragraph of a document contains confidential material generally will not support a motion to seal the entire document. Counsel may, and in most circumstances should, submit a redacted version of the document, with a separate request to seal the portions containing confidential material.

In Wisconsin’s Western District, Administrative Order 296 provides that, in civil cases, documents may be sealed only if they are subject to a prior protective order or are accompanied by contemporaneous motion to seal (the motion to seal may also be filed under seal).

Wyoming: Rule 37.2 of the Local Rules for the U.S. District Court provides that the filing of a motion for a protective order shall stay the discovery to which the motion is directed pending further order of the court.

Finis