Think Before You Seal
Lisa R. Hasday, Litigation News Associate Editor – December 21, 2011

Judges are normally happy to enter orders to which all parties have agreed. In the case of agreed motions to seal entire files in civil cases, however, lawyers can expect changes. This fall, the Judicial Conference of the United States issued “a national policy that encourages federal courts to limit those instances in which they seal entire civil case files.”

The New Guidance
The policy states that a court should seal an entire civil file only when consistent with four criteria. Complete sealing is appropriate when, first, “[s]ealing the entire civil case file is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives (such as sealing discrete documents or redacting information), so that sealing an entire case file is a last resort.”

Second, the judge should “make or promptly review the decision to seal a civil case.” Third, “[a]ny order sealing a civil case contains findings justifying the sealing of the entire case, unless the case is required to be sealed by statute or rule.” Lastly, “[t]he seal is lifted when the reason for sealing has ended.”

According to the Judicial Conference’s press release, “[t]he Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism ‘that would remind judges to review cases under seal annually.’” Last year’s Sealing Court Records and Proceedings: A Pocket Guide—which is published by the Federal Judicial Center—similarly instructs judges “to keep confidential only what must be kept secret, temporarily or permanently as the situation requires.”

Thinking Before Sealing
The new recommendations mean “a lot more work and consideration and thinking” for both lawyers and judges, says Judge Marvin E. Aspen, Chicago, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “In the past, a busy judge might easily lose track of something that was filed under seal that the judge assumed would be temporary but turned out to be permanent. I don’t think in the vast number of instances there’s been an abuse, but there may have been times where files were sealed where they should not have been sealed.” Aspen believes the new policy will go a long way toward correcting this periodic occurrence.

Indeed, according to a 2009 Federal Judicial Center report that analyzed all federal cases filed in 2006, a “large percentage” of civil files that were sealed entirely could have instead been redacted or at least unsealed by the time of the report. Specific cases are not identified, but it is likely that some involved threats to public health that were not disclosed, on the ground that the cases contained trade secrets. Such cases have been the focus of recent congressional attempts to pass a Sunshine in Litigation Act.

Promoting Openness
Given the broader policy concerns, there appears to be support for the new recommendations despite the higher burden imposed. “Our democratic process is such that it’s better to put as much in the public eye as is practical,” says Joan K. Archer, Kansas City, Missouri, also a cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee. Even cases involving trade secrets, which comprise a significant part of Archer’s practice, include much that does not require sealing despite largely concerning confidential information, she notes.

It is less clear that other kinds of civil litigation should be open to the public, says Betsy P. Collins, Mobile, Alabama, the final cochair of the Section’s Pretrial Practice and Discovery Committee. “Is it really everybody in the country’s business that Joe Blow and his brother Billy can’t get along after they inherit Daddy’s business?” she asks. “At the end of the day, you just have to put faith and confidence in the discretion vested in the trial judge.”

Aspen believes that judges will follow the policy, although it is a recommendation, and not a hard and fast rule. “Judges are not likely to flout a United States Judicial Conference policy,” he explains. Collins, by contrast, wonders whether the policy will become a rule. In her view, the policy is “a cautionary tale” and suggests “a slope where they’ll go further the next time.”

The Federal Rules of Civil Procedure currently address sealed documents in Rule 5.2(d), which states that a court may order that a filing be made under seal and may later unseal the filing or order that a redacted version be filed. In addition, Rule 5.2(f), provides for unredacted versions of redacted documents to be filed under seal. The policy does not apply to criminal cases, although the 2009 Federal Judicial Center report found that courts seal a larger percentage of criminal cases in their entirety than they do civil cases.

Ultimately, the new policy will not affect most civil litigation, as only a small fraction of such cases are sealed entirely. According to the 2009 report, just 0.2 percent of civil cases filed in 2006 were completely sealed. In those instances when a party still desires that the court seal an entire file, however, it is important for practitioners to be aware of the new policy and plan accordingly.

Keywords: litigation, sealed civil case files, Judicial Conference of the United States

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