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Federal Circuit re: Bulk Unsealing Plans—Never Mind


From today's order:

Upon further consideration of the court's August 17, 2022 Order, the court finds it impracticable at this time to continue to proceed with the proposed unsealing of previously-identified cases. Specifically, the court finds that there will be insufficient time and considerable, unanticipated administrative difficulty to both the court and to counsel in providing an opportunity for counsel and parties in the previously-identified cases to permit a physical review of the identified cases by the National Archives and Records Administration's December 31, 2022 deadline for the court to complete the accessioning of its remaining paper case records.


(1) The court's August 17, 2022 Order is hereby RESCINDED in full. Any impacted parties, counsel, and other interested parties are excused from any requirement to show cause pursuant to Federal Circuit Rule 25.1(a)(1). Any filed responses to the court's order are DENIED as moot.

(2) The cases identified in the Addendum to the August 17, 2022 Order shall remain under seal until further order of the court but without prejudice to a motion to unseal in an identified case consistent with the court's rules.

(3) The Clerk of Court is directed to accession the cases identified in the August 17, 2022 Order Addendum to the National Archives and Records Administration for permanent retention under seal….

Here's my post from last Wednesday, about the order that has now been rescinded:

An interesting order today, from the Federal Circuit:

The United States Court of Appeals for the Federal Circuit intends to unseal certain paper case records in accordance with Federal Circuit Rule 25.1(a)(1) in order to accomplish accession to the National Archives and Records Administration. Parties, counsel, or other impacted individuals with an interest in keeping sealed records in any case identified in the court's order must show cause no later than 60 days from the date of the order why those records must remain sealed. No response is needed unless parties or counsel intent to contest the unsealing. Please refer to the order for further details, including how to submit a response.

Notice of this order is being sent to all active members of the bar registered with the court's electronic filing service as well as to original counsel of record in the identified cases. Questions concerning the order or the process for responding should be directed by phone to the Federal Circuit Clerk's Office at (202) 275-8035.

From the linked-to order:

The court is in the process of accessioning its remaining paper case records to the National Archives and Records Administration for permanent retention. These records pre-date the court's transition to its electronic case management filing system in 2012 and once transferred to the National Archives will remain in only paper format and will not be made available online. Pursuant to Federal Circuit Rule 25.1(a)(1), "[a]fter five years following the end of all proceedings in this court, the court may direct the parties to show cause why confidential filings (except those protected by statute) should not be unsealed and made available to the public." Through the review of these records, the court has identified several cases containing confidential filings that remain under seal more than five years following the end of all proceedings.

The list in the order appears to include over 1000 cases. Note that, though NARA will apparently only store the records in paper format for now, I expect that anything publicly accessible at NARA could potentially end up getting scanned and placed online in the future.

Thanks to Michael F. Smith of the Smith Appellate Law Firm for the pointers both to the original order and to the rescinding order.