Sealing, Redux

A decade ago I wrote an article here on sealing: https://works.bepress.com/curtis_karnow/13/. If my recent experience in San Francisco's law and motion department is a guide, it's time for an update.

Lawyers and judges spend too much time on what should be a straightforward process - or worse, they're not spending any time on it at all, and a lot of material is sealed that should not be.

Lawyers don't care much about sealing, because it's easier to just agree documents are confidential to expedite discovery, and there's little incentive to tease out what really needs sealing when it comes to later motion practice.

Judges, on the other hand, are supposed to care a lot, because sealing is, at heart, the same as closing the courtroom. First amendment rights are at stake. So it's a high bar, a difficult test to meet. Fact findings must be made. Orders have to be specific. Only the minimum redaction possible is allowed. CRC 2.550- 2.551; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (cited in the Advisory Committee comments).

I recall that right after NBC was published, the Chief Justice, who wrote the unanimous opinion, asked our Judicial Council committee to draft up the rule on sealing. The case itself didn't deal with sealing (except for a few transcripts), but rather closing courtrooms in civil trials. The Chief, both in his opinion and to us on the committee, made it clear that the same high interests in public access controlled sealing, just as they did open courtrooms.

So I provide a few ideas to smooth the way to legitimate sealing orders. Some of this is just law. Other bits, such as my recommendation on "delta documents," are practical. Consider this as you draft motions to seal:

Supporting declarations must address each portion sought to be sealed, and they must consist of admissible evidence. Generally counsel don't have personal knowledge of the reasons why materials should be sealed.

The proposed order must make required findings. CRC 2.550 ff. Boilerplate will not suffice. The order should be so precise that someone not connected with the case, given the order and the full document, would know exactly which words and numbers to redact for the public file.

The party seeking protection should provide a "delta document," a redline showing the specific words or numbers sought to be redacted from the public file. This shows the "delta" or difference between the proposed public and sealed versions. This allows the judge to see at a glance exactly which words are the subject of the motion, without having to rip open envelopes or compare documents. The delta document is only lodged, never filed, and the judge destroys it after the motion is decided.

It is almost never proper to seal an entire document: usually, much of the data, such as a title, date, boilerplate, and other content, does not give away secrets, so none of that should be redacted.

Regardless of any agreement among the parties, only the party desiring sealing files the sealing motion. See CRC 2.551 and especially 2.551(b)(3)(B). I've seen stipulated protective orders which require the party using the material to file the sealing motion, even if it's not that party's secret material. That conflicts with the rules, and it creates a mess because the moving party doesn't care about sealing and doesn't have access to admissible evidence why the material has to be sealed.

So, a tip: Don't put anything except a cite to CRC 2.550-2.551 into the protective order on the process of sealing; otherwise there's a high risk of a conflict between the rule and the order.

The parties should withdraw items (or pages of them with sensitive data) which, on reflection, need not be part of the record for the underlying motion. There is no need to provide - and so no need to seal - materials which are irrelevant to the underlying motion. Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 500. Read this case. It will tell you that burdening the judge with a ton of paper to be reviewed in sealing motions is sanctionable, and the stuff can be stricken, if it doesn't matter to the underlying motion.

If a document needed for the underlying motion has secret text, but that secret text is immaterial to the underlying motion, then don't file a motion to seal. Just file the redacted document in the public file, and the judge will only consider the redacted document.

But where sealing is needed because secret text is relevant to the underlying motion, a courtesy copy of the unredacted document should be lodged with the court. The redacted version - e.g. volumes of blacked out pages, which lawyers routinely provide to me - is usually pointless.

An agreement to seal, including prelitigation agreements that materials will be kept confidential - is interesting, and might show the documents haven't been exposed to the public - but agreements aren't enough: parties cannot stipulate to sealing. Cf., McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 35.

Envelopes create headaches. Some lawyers put everything in "sealed" envelopes, with dire warnings that they can't be opened without a court order. But envelopes should only be used for documents which, if the sealing motion is granted, will be handed to the clerk for filing as a sealed document. Avoid confusing envelopes for courtesy copies and delta documents. If you feel you have to use an envelope - for example, your messenger will leave the item in the box outside the courtroom - then ensure the envelope is boldly marked "courtesy copy" and/or "delta document."

This leaves us with materials filed in connection with discovery motions, because the sealing rules expressly don't cover those papers. E.g., Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68. Can all those papers be sealed? Who decides? Do we need court orders? It's not clear. Maybe we don't need court orders for routine discovery motions on e.g., burdensome interrogatories or pointless objections: lawyers might just file under seal. But other discovery motions might need first amendment scrutiny. H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894. Perhaps the best bet for counsel is to seal only what in good faith they need sealed. Perhaps the issue of what portions of discovery motions are legitimately sealed is tested only if someone moves to unseal them. And that's a motion which by and large anyone - party or not - can bring. CRC 2.551(h)(2).