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Worse Than Sealed Court Records: Sealed Motions to Seal

A judge rightly speaks out against them.


From Wednesday's decision by District Judge Miranda M. Du, in Barron-Aguilar v. Olsen (D. Nev.):

Respondents' sealed motion for leave to file exhibit under seal … addresses Exhibit C, the Nevada Department of Correction's ("NDOC") COVID-19 Protocol and Statistics report, submitted in support of Respondents' opposition to Petitioner Tito Barron-Aguilar's emergency motion for release. Respondents contend that NDOC's report contains confidential information regarding prison procedures and protocols and sensitive medical information, which could potentially be used to compromise safety and security at NDOC facilities.

Having reviewed and considered the matter in accordance with the Ninth Circuit Court of Appeals' directives set forth in Kamakana v. City & Cty. of Honolulu (9th Cir. 2006), and its progeny, the Court finds that a compelling need to protect safety and security at NDOC facilities outweighs the public interest in open access to court records. Respondents have met their burden of establishing compelling reasons for Exhibit C to remain sealed.

The Court further notes, however, that the Motion to Seal was erroneously filed under seal when the Motion to Seal itself does not contain any confidential information—only the attached exhibit(s) presents confidential information. If a motion to seal itself contains confidential information, the moving party may file a redacted motion to seal on the public docket and an unredacted motion under seal with the sealed exhibits. However, this practice is disfavored as litigants should attempt to meet their burden under Kamakana without specific references to confidential information. Parties must file confidential information separately under seal as a "Sealed Exhibit(s)" and link the sealed exhibit(s) to the motion to seal….