Careful with Filing Sealed Documents

For the third time in the last three weeks, I've noticed federal court documents that were supposed to be filed sealed but weren't. UPDATE (Monday, Aug. 6): Just came across a fourth instance, in a state trial court.

|The Volokh Conspiracy |

The first two were in the Central District of California and the Ninth Circuit, in the L.A. Times controversy I blogged about; now I saw it happen again in the U.S. District Court for the District of North Dakota.

I don't know if the problems were the fault of the lawyers, the clerks, the computer system designers, or some mix of the three. But it's a reminder that, if you're filing something sealed, you should be very careful, and you should likely check to make sure that the material did indeed get properly filed sealed, and be ready to call the clerk's office right away in case it wasn't. True, even a minute during which the document is unsealed on the docket can enable it to leak out, but a minute is better than an hour or a day.

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  1. With multiple instances such as this, id put it down to either a confusing computer system or intentional by some lawyers. I’d put more weight on the system design being poor but I wouldn’t rule out malice.

  2. Apparently the DC District is very big on using color to make this clear.
    The path to filing a sealed document has the CMECF screens in bright yellow, followed by bright red for the confirmation steps. See http://www.dcd.uscourts.gov/si…..ay2014.pdf

    I wish we could inline the images. PDF pages 4 and 8 especially.

    Not sure about other districts. Many of them don’t allow ECF filing of sealed documents, perhaps for this reason.

  3. A relative who is a law enforcement officer had this happen, I think due to the fault of an attorney with the prosecutor’s office. The mistake compromised well developed leads/investigations into persons preying on very underage children.

  4. One of my favorite “war stories” (although I wasn’t directly involved) has to do with a suit filed in federal court by an organization that solicited charitable donations. They brought suit to enjoin publication of an unfavorable report by a non-profit that reviewed organizations that solicited funds from the public. The suit and motion for TRO were filed (of course) on Friday afternoon. As I recall, the defendant wasn’t able to get counsel to the court until the following Monday. The defendant’s lawyer discovered that the plaintiff had attached the unfavorable report to the complaint and had not arranged to have it filed under seal. It was therfore a public document (i,e, the cat was out of the bag). The judge was mightily PO’ed that his time had been wasted, and the TRO was desolved and the case was dismissed on the ground that the report had been published by the plaintiff.

  5. Are people too immature NOT to use a picture of a baby seal to make sure everyone gets it right?

    1. too immature NOT to use a picture … note to self, better to remain silent and be thought a fool than to speak and to remove all doubt.

  6. I don’t believe in sealed court documents as they are most often used to save people from embarrassment (ex. divorce proceedings) and stalkers. People shouldn’t be shielded from the former, and the latter is a crime.

    Court documents, however, should be subject to our standard classification system when part of the issue is classified. This would still protect things like national security letters being disputed by telecomm giants.

  7. Can’t even trust lawyers to pour some wax and bang lead on the table hard enough these days. It wasn’t such a shambles pre-Lochner, you know. Back then, real men knew how to really seal things.

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