From New Jersey Law Journal, December 27, 2004
Parties would not be able to expect courts to shield material on request
New Jersey's federal district court is considering a rule that would make it easier for the public to learn when parties to a case are trying to seal documents and proceedings.
Proposed Local Civil Rule 5.3, published for comment last Monday, would also clarify procedures for seeking protective orders and would generally bar judicial approval of settlements.
The rule, titled "Protective Orders and Public Access Under CM/ECF," strikes a balance between openness and the need to shield certain information. It applies broadly to requests to seal or to restrict access to court proceedings or materials filed with the court, or used in judicial decision-making.
In deciding such motions, judges would have to find specific factors and state the findings in an order or opinion. Those factors are "the legitimate public or private interests" that warrant confidentiality, "the clearly defined and serious injury that would result should the order not be granted" and the reason a less restrictive alternative is not available.
The rule goes further than counterparts elsewhere in scope and specificity, says Professor Laurie Dore of Drake University Law School in Des Moines, Iowa, who was consulted on the proposed rule.
It gives judges guidance but doesn't hamstring them, and imposes "some procedural safeguards that will protect the public interest in access," she says. It puts parties on notice that they cannot expect courts to seal materials on request, she says.
Motions to seal would be open to the public. Information claimed to be confidential, however, would be filed under seal, though a categorical description would have to be included in the motion papers. Any interested person could move to intervene.
The rule would prohibit sealing of entire dockets, while allowing it for specific docket entries.
It recognizes the parties' ability to enter into written confidentiality agreements regarding discovery materials. But to get a court order, they would have to submit an affidavit or certification setting forth the same information as on a motion to seal.
Rule 5.3's prohibition on court approval for proposed settlements, except where required by law or for the purpose of retaining jurisdiction, recognizes that although judges properly assist parties in settling cases, "the court's imprimatur on a private settlement is a nullity," says U.S. Magistrate Judge Ronald Hedges, the rule's drafter.
Settlement agreements that have been filed or incorporated into orders would be deemed public, absent a showing of good cause to the contrary.
The interest in public access at the heart of Rule 5.3 extends beyond the right to intervene.
The rule would require the court clerk to create a consolidated public report, accessible through PACER, listing all motions, affidavits and orders concerning efforts to seal or restrict access. Parties would have to file such documents under specified designations to enable tracking.
The consolidated public list is probably unique to New Jersey and is consistent with past practice in the district favoring public access. Existing local civil rule 79.2 makes all briefs presumptively part of the public record, even if not filed with the clerk, and establishes it as court policy that counsel should make copies available to the press and public.
Internet Broadened Original Goal
Rule 5.3 originated with media lawyer Donald Robinson, who approached the Lawyers Advisory Committee several years ago with a narrower proposal aimed at providing public notice of motions to seal.
The committee ultimately proposed a rule last June. By that time, however, electronic filing, which took effect in the district court on Jan. 5, 2004, and will become mandatory as of Jan. 31, 2005, had so altered the landscape that a rewrite was necessary to reflect the impact of Internet access.
Hedges drafted an expanded rule, which was informally reviewed by the Administrative Office of the U.S. Courts and the Federal Judicial Center, as well as by Dore.
He framed the provisions with an eye on relevant circuit case law, such as Pansy v. Borough of Stroudsburg, 23 F.3d 772 [1994], which defines what constitutes "good cause" to justify sealing.
"The primary thrust of the rule is that materials on file with the court and judicial proceedings are available to the public," says Hedges.
Rule 5.3 distinguishes between documents filed with the court, where blanket denial of access will not be ordered, and material produced in discovery, which can be the subject of mutually agreed blanket stipulations, Hedges notes.
Robinson, of Newark's Robinson & Livelli, is understandably pleased with the rule he helped instigate, stating it will promote uniformity, prevent rubberstamping of sealing requests and ease public input.
Intellectual property lawyer Gerard Norton, who comes at the question from the opposite perspective, also praises the rule's "best of both worlds approach" in balancing the public's right to know against the legitimate interest of some litigants in preserving the confidentiality of proprietary information.
It protects the public's need to know what the parties are fighting over without disclosing patents, trade secrets and other intellectual property, says Norton, of Norton & Diehl in Clark.
Sealed Settlements Rare
A report released last spring by the Federal Judicial Center found that sealed agreements occur in fewer than one half of 1 percent of civil cases.
Forty-nine districts have general rules on the sealing of documents but only two have rules on secret settlements, the report found. The District of South Carolina prohibits them, subject to exception for good cause, while the Eastern District of Michigan's rule allows them but unseals them after two years.
The contentiousness of the access issue is demonstrated by a recent rulemaking effort on the state level.
In its last round of rulemaking, the Supreme Court Civil Practice Committee voted 18 to 17 against amending Rule 4:10-3 on protective orders. The minority wanted to require a specific finding of good cause, even where parties stipulate to a protective order.
The state committee took up the issue at the suggestion of Judge Jack Sabatino in Estate of Frankl v. Goodyear, MER-L-3052-99. That case, involving the efforts of a consumer safety group to gain access to tire company documents produced during discovery in a products liability case, is on appeal to the New Jersey Supreme Court.
Comment on Rule 5.3 is open until Jan. 19.
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