Sealing of Documents Filed in Court

This post is not political.  It is about redactions and confidentiality.

Erik Wemple wrote Opinion | What is Fox News hiding in the Dominion lawsuit? – The Washington Post (Mar. 6, 2023).  He describes documents produced in discovery with heavy redactions and asks what is being hidden.  The redactions that he reproduced give no reason why the redaction was made, although Mr. Wemple explains that there is an order allowing redactions to protect confidential materials in public filings.

Mr. Wemple wrote that “[i]mpenetrable black expanses… thwart a complete understanding of what was happening….” He suggests that “the filing is filled with frustrating dead ends,” which are the result of a litigant’s “aggressive effort to prevent disclosure of the internal communications that came out of discovery….”  The redactions are being challenged by news organizations and a litigant.

I don’t know anything about that lawsuit and can’t comment on it; however, I have written about the principles of law that govern redaction.  Relevance Redactions Rejected – Rule 26(f) Resolution.

“[E]ven proper redactions might engender distrust between the parties.”  S. Endo, “Contracting for Confidential Discovery,” 53 U.C. Davis L. Rev. 1249, 1296–97 (2020).

As a general principle:

A body of case law limits the right to redact for reasons other than privilege or work product.   “It is a rare document that contains only relevant information.” Bartholomew v. Avalon Capital Group, Inc., 278 F.R.D. 441, 451–52 (D. Minn. 2011). Redaction of information from a discoverable document – – simply because a portion is irrelevant or non-responsive – – is generally not permitted.  Id.

Confidential information may be governed by agreement between the parties. “[I]f a confidentiality order has been entered, redaction for confidentiality is generally prohibited.”  Id. at 452.

Here, however, the situation appears to be different. It appears that the confidentiality applies solely to information filed in court, i.e., information that would otherwise be available to the public.  The Washington Post article states:

Both parties are working under an order allowing them to protect certain discovery materials — sensitive, proprietary, commercially sensitive information, for example — from unrestricted public release. All filings containing such designated material must be filed under seal and appropriately redacted before public release.

District courts have broad discretion in fashioning protections.  United States v. Dynamic Med. Sys. LLC, 2023 WL 1995522, at *4 (E.D. Cal. Feb. 14, 2023).  As to filed materials, the First Amendment is implicated. In re Marriott Int’l, Inc. Customer Sec. Breach Litig., 2022 WL 18710, at *1 (D. Md. Jan. 3, 2022)(“The court may conclude that a redaction was correctly made under the Protective Order, but the public interest compels disclosure of what was redacted. The converse is also true.”)(report and recommendation of Special Master); see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

The Dominion Voting Lawsuit was filed in Delaware.  In the United States District Court for the District of Maryland, Local Rule 105.11 governs sealing of materials filed in Court:

Any motion seeking the sealing of pleadings, motions, exhibits, or other documents to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protection. The Court will not rule upon the motion until at least fourteen (14) days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. Upon termination of the action, sealed materials will be disposed of in accordance with L.R. 113.

Appendix D to those Local Rules contains a “Stipulated Order Regarding Confidentiality of Discovery Material.”  In ¶2, the sample order sets out a detailed procedure to protect the rights of all in connection with seeking to seal a court filing.  An Interim Sealing Motion permits temporary sealing.  The burden of proof remains on the party asserting confidentiality.  This process balances the need for confidentiality and the right of access to court records.