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.

IT IS ORDERED THAT:

(1) The court's August 17, 2022 Order is hereby RESCINDED in full.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Here's my post from last Wednesday, about the order that has now been rescinded: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 [phone].

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.

Comments

[santamonica811]

Eugene,
Thanks for the update. But I was surprised that, in your OP, you did not give your own opinion on whether or not you think this is a good thing, on balance. And why you felt that way. I have my own (uninformed) opinion. But, given that 99.9+% of your readers don’t have federal appellate practice (or clerking) experience, it would be helpful to have your take on this development.

[jjsaz]

Maybe I’m missing something here, but I read this to mean that the public will never get to see these cases.

Unless, I’m mistaken, this is awful.

[BadLib]

(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.

Doesn’t it just mean that the situation returns to what it was — if you want one specific case unsealed, go for it by filing a motion to unseal?

[Mr. Bumble]

Welcome to America 2022, where nobody and nothing works.

[mydisplayname]

Is “insufficient time and considerable, unanticipated administrative difficulty” sufficient justification? If so, I hope to be able to use that same justification when, say, completing my tax returns. Perhaps even Donald Trump could use that justification.

Perhaps instead the Court should recognize the time and complexity of unsealing documents and, accordingly, refrain from sealing documents in the first place. Perhaps the executive branch should do so as well.

[Bored Lawyer]

Simple solution to this. All cases that have been closed for more than five years will be unsealed, unless counsel files a motion within 60 days demonstrating compelling reasons why particular documents must be sealed.

Then, going forward, sealing is not allowed absent a compelling showing, of specific documents.

[Mr. Bumble]

This task will only get bigger, as I assume that new cases are still being sealed. Since we don’t know the age of the backlog but in accordance with your suggestion why not start with the oldest cases and continue to work forward as quickly as possible.

[Kazinski]

Obviously someone thought it was a bad precedent, and someone in the future might 3nd up unsealing Epstein’s client list.

Federal judges generally have no desire to kill themselves.

[Noscitur a sociis]

Tell me you don’t know what the Federal Circuit is without telling me you don’t know what the Federal Circuit is.

[Brett Bellmore]

This is pretty lame; Are we seriously to believe the court had no idea how much work was involved until somebody pointed it out to them? That’s an amazing confession of ignorance on their part.

[Jerry B.]

“We won’t obey the law because it’s just too much trouble.”