Right of Access

Guidance on Filing Sealed Documents

Don't just file the document unsealed, and then ask for sealing

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From Judge Daniel D. Domenico's order Thursday in Nichols v. Denver Hospital Auth.:

ORDER granting 148 Unopposed Motion for Leave to Restrict. The Clerk of Court is directed to place ECF Nos. 146-1 through 146-25 under Level 1 Restriction [basically, the label used for sealing in the federal district court for Colorado -EV].

It is FURTHER ORDERED that the parties acquaint themselves with the proper means of filing documents under seal, including documents subject to a motion to restrict. Plaintiff has, as both parties have previously, once again filed documents subject to a motion to restrict publicly. Both parties have submitted numerous exhibits subject to pending motions to restrict publicly and belatedly ask the court to seal these documents.

This practice obviously undermines the purpose of keeping these documents under restriction while restriction issues are adjudicated. Soliciting advice after the fact from the clerk's office does not absolve a party from failing to acquaint oneself with the rules before filing. Both parties have experienced counsel who should be familiar with the practices of this court, particularly after this court has warned the parties for repeated prior failures. Future cavalier treatment of confidential documents or documents with contested confidentiality will subject counsel to more severe consequences.

One possible consequence would be applying the "once the cat is out of the bag, the ballgame is over" principle; for instance, from a different Colorado federal judge and case,

The documents at issue in Defendants' motion were not filed under [seal]…. Only [some weeks later] did Defendants seek to [seal] the documents. Because Defendants failed to avail themselves of the protections provided by the District's local rules in filing [the documents], any claim to confidentiality has been waived. The cat has already been let out of the bag. Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ("Once the cat is out of the bag, the ball game is over.") …. After-the-fact sealing should not generally be permitted. See id. at 144 ("… We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again.").

This isn't a categorical rule; my sense is that attitudes on this vary from court to court, and even in demanding courts, judges might sometimes let you fix a mistakenly unsealed filing—but, as usual, that's less likely if the mistake looks like a part of a consistent pattern.