With the adoption of new Local Rule 5.6, the District of Minnesota will be changing the game for filing documents under seal in civil cases.
Currently, the Local Rules contain no standard process, and only set forth minimal substantive requirements beyond requiring a protective order or a motion, for filing motions under seal. Several Magistrate Judges have instituted sealed filing procedures particular to their personal preferences in some or all of their cases. At the same time, while the Court’s form protective order provides a basic definition of confidential information, parties to civil litigation have generally had leeway to devise case-specific requirements.
The new rule will address both what may be filed under seal and how under seal filing will take place in the District. The Court’s goal was to adopt uniform substantive requirements for and create a District-wide process of filing motion papers under seal, in the hopes of reducing the volume of documents filed under seal.
The new rule will restrict under sealed filing to documents that contain “confidential information.” Local Rule 5.6 defines confidential information as that which (1) the filer asserts as confidential or proprietary; (2) was designated confidential or proprietary by another party, nonparty, NDA, or protective order; or (3) is otherwise entitled to protection from disclosure by a statute, rule, order or other legal authority. As a practical matter, this definition should be broad enough to encompass nearly any protected information.
Local Rule 5.6 also outlines a new standard procedure for filing under seal comprised of four main steps:
- The filing party must submit the document under temporary seal and simultaneously either file a redacted version, or a statement that the entire document is confidential or that redaction is impracticable. The document will remain under temporary seal until the court makes a determination on the matter.
- After all documents relating to the underlying motion are submitted, the parties must complete and file a single Joint Motion Regarding Continued Sealing within 21 days of the final motion filing. The Joint Motion must list each document filed under temporary seal, briefly explain why it should remain sealed or be unsealed, state whether the parties agree as to sealing, and name any nonparty that designated the document as confidential. The District of Minnesota has posted an example of the Joint Motion online, stressing that the position explanations should be very brief. The court will typically rule on this motion without oral argument.
- Once the court rules on the Joint Motion, any objecting party can move for further consideration.
- After a ruling on a motion for further consideration, any party or nonparty can file an objection to the order.
The new rule will force new habits on those attorneys among us who routinely file briefs and other motion-related documents under seal. Local Rule 5.6 goes into effect February 27, 2017.