Most Read Contributor in United States, January 2017
The preparation of motions to seal clients' confidential
materials can be – at times – an arduous task. In
an apparent effort to streamline the procedure and reduce the
duplicative, voluminous filings in support of sealing requests, the
District Court has amended Local Civil Rule 5.3, entitled
"Confidentiality Orders and Restricting Public Access Under
Effective September 30, 2016, the amendment makes sweeping
changes to the procedure previously used to request sealing
orders. Here is what New Jersey lawyers practicing before the
New Jersey District Courts need to know about the recent amendment
to Local Civil Rule 5.3.
Before, the filing party submitted a motion to seal along with
every filing containing information that it (or the adversary)
wanted sealed. Now, instead of filing a motion to seal along
with every single filing, litigants must work together to file a
single, consolidated motion to seal within 14 days after the
briefing in support of the application that relies on the
confidential material is complete.
Other important points to note with respect to this new sealing
No briefs need to be filed "unless a party believes it
will assist the Court." However, Proposed Findings of Fact and
Conclusions of Law must be submitted. Parties are permitted
to file alternative proposed orders if they oppose the movant's
If a party files redacted materials, then within 21 days of the
filing, the parties must meet and confer.
The party that wants the materials sealed must file the motion
absent agreement to the contrary.
Litigants must file the motion to seal even if the motion in
support of which the confidential materials have been filed is
resolved or terminated.
In support of the motion to seal, litigants are required to
submit a chart, setting forth specific information with
particularity. The preferred form for the chart may be found in
Appendix U to the Rules.
In emergent situations, if the Court temporarily seals
materials, either sua sponte or in response to an emergent
application, then the sealing party must file its motion to seal
within 14 days of the date of the Order.
There is also a new procedure that applies when anyone wants
portions of a transcript or digital recording sealed. In
addition to generally following the above procedure, the movant
must not file the proposed redacted transcript with the
motion. Instead, the movant must provide it directly to
Chambers. The movant must also serve a copy of the motion on
the court reporter/transcription agency with a cover letter
explaining the pendency of the sealing motion. While the
motion is pending, the transcription agency may not publicly
release the transcript or recording. If the Court grants the
motion, then the movant must submit a Statement of Redaction and
Sealing to the court reporter/transcription agency. That form
is available on the District Court's website.
It's fair to say that the amendments to Local Civil Rule 5.3
are a fundamental change to sealing procedures. Although time will
tell whether the amendments streamline sealing applications, at
first blush, the outlook is bright.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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