The Commercial Division of the Supreme Court of the State of New York recently adopted a new form of confidentiality order that eliminates the option to e-file documents redacted for confidentiality without a motion to seal. The new confidentiality form, which became effective on July 1, 2016, requires the “Producing Party” who originally designated the documents as confidential to file a motion to seal promptly after any party files redacted copies of the documents. This puts an end to the option of avoiding filing a motion to seal – an alternative that many attorneys had found convenient when confidential information was submitted to the court on a motion or at trial. The effect of the new rule will likely be to expose more confidential information used in litigation to public scrutiny, or to drive up the cost of avoiding such public exposure, or both.
Under paragraph 12 of the new form, a party who files deposition transcripts, exhibits, interrogatory responses or other documents that had previously been designated as “Confidential Information” must (1) serve the other parties with the documents, both redacted to screen out the confidential information and unredacted; (2) file the redacted version; and (3) transmit both the redacted and unredacted versions to chambers. Then the “Producing Party” must make a motion to seal within seven days, failing which, the filing party must publicly file the unredacted version. In contrast, the old confidentiality form gave parties the alternative to file redacted versions of confidential documents without the need for filing a motion to seal.
The revision was motivated by a concern that under the previous procedure substantial parts of the record in many lawsuits were being submitted only to chambers and the parties, with no lasting presence in the court’s files. That made for difficulties in preparing complete and accurate records on appeal, and also ran counter to the presumption that the public is entitled to access to judicial proceedings. The new rule is calculated to eliminate these problems. Given that the existing rule on sealing requires the moving party to show good cause and the court to consider the “interests of the public,” see 22 N.Y.C.R.R. § 216.1, there will be cases where parties fail to meet the standard, or decide that it is not worth the effort to try.
Ensuring accurate records and public access to judicial proceedings are, without a doubt, laudable goals. But it cannot be overlooked that the new process will involve definite costs. Commercial Division judges, who already have busy dockets, will have to address more motions to seal. Parties who have produced confidential documents will be forced to file such motions in short order after their adversaries file such documents, perhaps at a time when the producing party is already very busy dealing with a dispositive motion by the filing party. Indeed, parties might tactically decide – appropriately or not – to load their filings with an adversary’s confidential documents to create added pressure on the producing party. Additionally, if producing parties fail to move to seal within the seven days required by the rule, some filing parties may conceivably neglect to file unredacted documents, as required by the new Rule, raising the institutional and ethical issues associated with having rules on the books that are neglected.
One can only hope that these costs prove minor compared to the benefits of a more open judicial process. In any event, counsel accustomed to the process provided for in the old form of confidentiality order will have to adapt to the new form going forward.