LCJ is working to protect litigants’ ability to file documents under seal by advocating against a proposal currently before the Advisory Committee on Civil Rules that would create an expansive new role for federal courts to serve as a clearinghouse for accessing private information. 

The proposal is authored by Eugene Volokh, a professor at the UCLA School of Law, and supported by the Reporters Committee for Freedom of the Press and the Electronic Frontier Foundation. It would: 
  • Establish a presumption of public access
  • Impose an onerous four-part test for sealing
  • Require courts to make "particularized findings" to justify sealing
  • Allow members of the public to challenge sealing orders "at any time"
  • Automatically terminate all sealing order 60 days after disposition of the case
 
There is a comprehensive and effective legal framework already in place to govern the sealing of documents, including Rule 5.2, district court local rules, and an extensive body of caselaw.  There is no reason for the Committee to re-visit this complicated issue.  But, if the Committee undertakes to draft a new national standard, it should set aside the unworkable proposal and instead fashion a rule that provides pragmatic guidance for courts and parties balancing the legitimate need for litigants to seal proprietary information with the public interest in oversight of the judicial process.  Any new rule should:
  • ​(i) Clearly distinguish between discovery and court-filed documents;
  • (ii) Allow parties to stipulate to protection of discovery information;
  • (iii) Apply the presumption of public disclosure only to documents that are important to the determination of case merits;
  • (iv) Provide a mechanism to ensure information exchanged during discovery is appropriately protected from cybersecurity threats; and 
  • (v) Establish a procedure for parties and courts to minimize the amount of potentially confidential information that gets filed with courts in the first place.
 
Here are some important materials: