Although the legal standards for a motion to seal are usually straightforward, many attorneys are caught off guard by some of the non-substantive elements that go with such a motion. Additionally, many judges view such motions with a level of skepticism that attorneys are not always prepared for. Here are some tips help avoid some of the common pitfalls that befall attorneys moving to seal.
Check the Rules
Be sure to consult the local rules for any procedures regarding motions to seal; oftentimes they vary from the procedure you are accustomed to. Even if you have experience making a sealing motion in a particular court, an individual judge within that court may have her or his own protocol. Depending on the court and the judge, you may even risk delaying trial or forfeiting your chance to make the motion if you run awry of local practice.
The Sooner the Better
Even where there are no local rules on sealing procedure, don’t fall victim to the trap that ensnares many attorneys—failing to provide the court adequate time to read your papers and process your argument. Unless local rules provide otherwise, the pretrial conference is often an opportune moment to raise sealing issues.
Even where you have fully briefed the motion well in advance, don’t assume the court will read or rely on your papers in deciding the motion. Since the standards for sealing motions can be fairly straightforward, many judges decide the motion on the spot after asking a few questions about the motion. Any attorney with a pending request to seal should be ready to articulate the bases for sealing at a moment’s notice – a judge might not give you advance warning when she or he will address and decide the motion.
Know the Law
Attorneys should never assume that, simply because a sealing motion is without opposition, the judge will not seriously test the bases for the motion. A judge deciding a sealing motion will bear in mind the interests of the public at large, not just the parties. Thus, no motion to seal is ever truly “uncontested.”
Generally, neither a “confidential” designation, embarrassment to your client, nor an agreement amongst the parties that a document should be sealed is sufficient to warrant a sealing order. Additionally, a judge is typically required to narrowly tailor a sealing order; thus, a request to redact certain portions of a document is more likely to be granted than a request to seal the document in its entirety.
The standards for evaluating a motion to seal may vary widely depending on the court you are in. Make sure you are familiar with the relevant law, and structure your arguments accordingly. If possible, find prior sealing orders issued by the judge you are before—if the relevant precedent sets forth a dozen factors bearing on the motion, your judge might be primarily interested in two or three of those factors.
Local rules may dictate what happens to documents after a judge grants or denies a request to seal. These rules can even affect your client’s interests. For example, while one court might return or destroy all sealed documents after trial, another court might automatically unseal a document after a certain amount of time has passed.
Keep in mind that typically the “narrowly tailored” requirement also mandates that records should be unsealed once there is no longer a need to seal. For example, even if a judge seals financial documents on the basis that they would put your client at a competitive disadvantage, the sealing order might also provide that it will automatically expire at a time the judge believes that the information would become too historical to warrant sealing.
Depending on how sensitive a document is, and how important it is to your case, you may want to forgo its submission altogether. Although some judges may be amenable to a request to withdraw the submission if the motion to seal is denied, not all judges are so flexible. Where necessary, be sure to consult your client about the risks associated with a motion to seal.
Dustin Grant is an associate at Hoguet Newman Regal & Kenney, LLP, in New York City, and a former law clerk in the Commercial Division of the Supreme Court, New York County.