Maley: Sealed or redacted filings: Caselaw and procedures

Although most civil cases proceed to resolution or judgment without the need for sealing or redacting any filings, many cases do include filings with personal identifiers, trade secrets or other matters potentially suitable for sealing or redaction. Caselaw and procedural rules for such filings are exacting, and compliance is imperfect.

The basics

Several basic principles govern sealing or redacting filings. First, federal courts are public, so filings are presumptively open to the public. Dixon v. Jefferson Cap. Sys., LLC, 2021 WL 4943059, at *1 (S.D. Ind. Aug. 26, 2021) (“Documents filed by parties on a contested matter to be decided by the court — such as the plaintiff’s motion for class certification — are ‘presumptively open to public inspection unless they meet the definition of trade secret or other categories of bona fide long-term confidentiality. Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009).’”

Second, “generally, unless there is a statutory basis for sealing, the existence of a recognized privilege, or a demonstration that harm would result from disclosure and that that particular harm should overcome the presumption of public access, sealing documents from the public record is not appropriate.” Dixon, 2021 WL 4943059 at *1.

Third, that a party has designated a document as confidential, on its own or pursuant to a protective order does not by itself satisfy a sealed or redacted filing. K&C Properties, Inc. v. State Auto Property & Casualty Ins., No. 4:21-cv-00039 (S.D. Ind. April 18, 2023); S.D. Ind. Local Rule 5-11(d) (protective order does not authorize filing under seal).

Local rules

Beyond caselaw, local rules address the procedures for filing under seal or with redactions. Compliance with these rules is inconsistent, as evidenced by multiple court orders in Indiana federal cases.

Indiana Northern District: In the Northern District of Indiana, Local Rule 5-3 governs filing under seal and provides that the “clerk may not maintain a filing under seal unless authorized to do so by statute, court rule, or court order.” Local Rule 5-3(c) states, “To file a sealed document (other than an initial filing) or a document ex parte in a civil case, a party must file it electronically as required by the CM/ECF User Manual” (found on the court’s website under the Case Information upper-level tab).

Indiana Southern District: In the Southern District, Local Rule 5-11 governs sealing and redactions. It is a lengthy, detailed rule since its comprehensive revision in 2015. Designed to guide attorneys to assist in efficient judicial processing of such motions, errors are common. E.g, K&C Properties (designating party failed to respond as required within 14 days to motion to seal filed by opposing party relying on documents designated confidential); Hanover Ins. Co. v. Thermedx LLC, NO. 1:22-cv-01957 (S.D. Ind. May 9, 2023) (improperly seeking to file an entire summary judgment brief under seal). Practitioners — including those ultimately signing off on and thus responsible for such motions — need to know Local Rule 5-11 (this author reviews it fully every time filing such a motion).

Local Rule 5-11 has seven discreet subparts, (a) – (g). Each is summarized here.

First, subsection (a) addresses filing an entire case under seal (a rare occurrence), requiring the sealing motion before or with the initial pleading.

Second, subsection (b) sets the general rules for sealing, including that the “clerk may not maintain under seal any document unless authorized to do so by statute, rule, or court order.”

Third, subsection (c) addresses redactions in lieu of sealing, providing in part, “When any of the confidential information in a document is irrelevant or immaterial to resolution of the matter at issue, the filing party may redact, by blacking out, the confidential information in lieu of filing under seal. Any party who files such a redacted document must serve an unredacted and complete version of the document upon all counsel and pro se parties.”

Fourth, subsection (d) sets forth the Southern District’s detailed procedures for filing under seal. In summary, unless a sealed filing is authorized by statute, rule or court order (not a protective order), a motion to seal must be filed. If the filing party designated the subject information confidential, the movant must also file a supporting brief “that complies with the requirements of subsection (e), and a redacted public version of the document that is being filed under seal.”

If instead the filing party did not designate the subject information confidential — for instance, when a party moving for summary judgment relies on an exhibit or deposition testimony designated confidential under a protective order by the nonmovant — an identification of the designating party. In this situation, the nonmovant designating party must, within 14 days, file a response either authorizing unsealing, or a brief setting forth pursuant to subsection (e) the grounds for sealing.

Fifth, subsection (e) contains the detailed requirements for any brief in support of a motion to seal. This text is set forth verbatim; all four items are critical:

“A Brief in Support must not exceed 10 pages in length, without prior leave of court, and must include:

(1) identification of each specific document or portion(s) thereof that the party contends should remain under seal;

(2) the reasons demonstrating good cause to maintain the document, or portion(s) thereof, under seal including:

(A) why less restrictive alternatives to sealing, such as redaction, will not afford adequate protection;

(B) how the document satisfies applicable authority to maintain it under seal; and

(C) why the document should be kept sealed from the public despite its relevance or materiality to resolution of the matter; and

(3) a statement as to whether maintenance of the document under seal is opposed by any party; and

(4) a proposed order as an attachment.”

Sixth, subsection (f) provides, “Any opposition to a Motion to Maintain Document(s) Under Seal must be filed within 14 days of service of the Brief in Support. Any Brief in Opposition must not exceed 10 pages in length. A member of the public may challenge at any time the maintenance of a document filed under seal.

Finally, subsection (g) provides that if the court denies the motion, the clerk will unseal the document(s) after 21 days, absent an objection under FRCP 72, a motion to reconsider, an appeal or further court order.

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John R. Maley — [email protected] — is a partner with Barnes & Thornburg LLP practicing federal and state litigation, employment matters and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana. Opinions expressed are those of the author.