More On Filing Under Seal In ED Texas

Posted on | September 8, 2008 | 1 Comment

Following our recent post on filing documents under seal in the Eastern District of Texas, ED Texas attorney, blogger and expert Michael Smith of EDTexweblog.com posted some comments as well as providing background on the process.

I ask Michael if I could re-publish it as a post so that everyone could get the benefit of his insight.  He agreed, and it is provided below.

Kyle,

Thanks for the opportunity to comment.  The "under seal" procedure in the ED Tex has a interesting history.  It all started several years ago when the local rules committee that I chair looked at the question of whether you should or shouldn’t need leave to file something under seal (this is all pre-e-filing).  There was no rule either way and the question came up almost daily since there are numerous filings that require attaching copies of confidential documents.  We opted for recommending getting court permission, and the judges agreed, and so the rule came into being.

With the advent of the patent docket, the clerk’s office could not keep up with the volume of filings under seal in paper, so shortly after e-filing of public documents became mandatory, filing documents under seal required submitting the documents on a CD so the clerk didn’t have to rescan them.  That became impossible to keep up with as well, and the clerk’s office pushed to get the capacity for attorneys to file under seal directly.  There were initially some steps attorneys had to follow, i.e. getting permission in the system to file under seal, but those have been worked out so the system for filing documents under seal is now fairly straightforward.

The language in the post is not current, by the way, even though it may be on something currently on the website.  You don’t file using CD-ROMs, even in nonpatent cases, nor do you need to contact the clerk’s office for permission, as was originally the case.

The rules on getting permission to file under seal have changed frequently however, as we have searched for the most efficient way of getting the permission to file under seal.  The current structure is still that you have to have permission to file under seal, but that permission can be granted en masse (usually in a protective order) for any filings that contain confidential documents.  Our intent was to try to eliminate as much motion practice as possible that the judges had to oversee just to get a document that contained confidential information on file, and I don’t recall there ever being any concern raised about parties filing under seal when a confidential document was attached or discussed (the system cannot parse out a filing so that part of it is sealed, and part is not).  I’m not saying that isn’t a valid issue – just that it wasn’t something that has been discussed, at least in the local rules committee.

Now the question of whether too much is being filed under seal is a valid one – I’ve seen a couple of cases recently where it seemed everything was under seal, and it wasn’t immediately apparent that anything confidential was involved.  But that is definitely the exception in my experience.  I would be interested to hear what people think about the filings under seal issue.  Where confidential documents are attached or discussed, there’s not much choice, and the protective orders always provide a mechanism for the opposing party to challenge an overbroad designation, although in practice it’s rarely a concern, unless documents are set at a higher level that doesn’t prevent examination by, say, in house counsel or client representatives.  But I can say that our principal concern, at least on the ED Tex’s rules committee when the issue has come up, was coming up with a mechanism to make filing under seal as easy as possible where the reason for the filing was that confidential documents were attached.

I don’t believe any issues with overuse of the filing under seal procedures have been brought up to us.  If there is an issue with too much being sealed, nows a good time to bring it up – I’d be happy to bring it up to the rules committee and see if a proposal to our judges to change the rules would be a good idea.  But at present, I haven’t heard any complaints from practitioners.  I understand that’s not everyone, so if anyone else has comments, please feel free to speak up.

Again, thanks for bringing the issue up.

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