Federal Courts Corner: The New and Improved Procedure for Motions to Seal

October 18, 2016Articles Garden State Gavel Blog

The preparation of motions to seal clients’ confidential materials can be – at times – an arduous task. In an apparent effort to streamline the procedure and reduce the duplicative, voluminous filings in support of sealing requests, the District Court has amended Local Civil Rule 5.3, entitled “Confidentiality Orders and Restricting Public Access Under CM/ECF.”

Effective September 30, 2016, the amendment makes sweeping changes to the procedure previously used to request sealing orders. Here is what New Jersey lawyers practicing before the New Jersey District Courts need to know about the recent amendment to Local Civil Rule 5.3.

Before, the filing party submitted a motion to seal along with every filing containing information that it (or the adversary) wanted sealed. Now, instead of filing a motion to seal along with every single filing, litigants must work together to file a single, consolidated motion to seal within 14 days after the briefing in support of the application that relies on the confidential material is complete.

Other important points to note with respect to this new sealing procedure include:

  • No briefs need to be filed “unless a party believes it will assist the Court.” However, Proposed Findings of Fact and Conclusions of Law must be submitted. Parties are permitted to file alternative proposed orders if they oppose the movant’s sealing request.

  • If a party files redacted materials, then within 21 days of the filing, the parties must meet and confer.

  • The party that wants the materials sealed must file the motion absent agreement to the contrary.

  • Litigants must file the motion to seal even if the motion in support of which the confidential materials have been filed is resolved or terminated.

  • In support of the motion to seal, litigants are required to submit a chart, setting forth specific information with particularity. The preferred form for the chart may be found in Appendix U to the Rules.

  • In emergent situations, if the Court temporarily seals materials, either sua sponte or in response to an emergent application, then the sealing party must file its motion to seal within 14 days of the date of the Order.

There is also a new procedure that applies when anyone wants portions of a transcript or digital recording sealed. In addition to generally following the above procedure, the movant must not file the proposed redacted transcript with the motion. Instead, the movant must provide it directly to Chambers. The movant must also serve a copy of the motion on the court reporter/transcription agency with a cover letter explaining the pendency of the sealing motion. While the motion is pending, the transcription agency may not publicly release the transcript or recording. If the Court grants the motion, then the movant must submit a Statement of Redaction and Sealing to the court reporter/transcription agency. That form is available on the District Court’s website.

It’s fair to say that the amendments to Local Civil Rule 5.3 are a fundamental change to sealing procedures. Although time will tell whether the amendments streamline sealing applications, at first blush, the outlook is bright.