Sealed Documents and Protective Orders

5.1. General principles. (a) (b) “Persons” defined. References to “persons” in this rule include parties and nonparties who are interested in the confidentiality of a document. is “Provisionally under seal” defined. “provisionally under seal” if it is filed electronically with a confidential designation in the electronic-filing system or if it is filed in paper inside of a sealed envelope or container marked “Contains Confidential Information – Provisionally Under Seal.” A document 11 TOC Rule 5 (c) Open courts. A person who appears before the Court should strive to file documents that are open to public inspection and should file a motion to seal a document only if necessary. A person who seeks to have a document sealed bears the burden of establishing the need for sealing the document. Reference to a stipulation or protective order that allows a party to designate a document as confidential is not sufficient to establish that the document should be sealed. (d) Scope. This rule does not apply to documents that are closed to public inspection by operation of statute or other legal authority. This rule does not affect a person’s responsibility to omit or redact private information from court documents pursuant to statute or other legal authority. 5.2. Procedure for sealing a document. (a) Filing. A person who seeks to have a document (or part of a document) sealed by the Court must file the document provisionally under seal and file a motion that asks the Court to seal the document. The motion must comply with the requirements of BCR 7. (b) Motion. The motion to seal must contain: (1) (2) (3) (4) (5) (6) a nonconfidential description of the document the movant is asking to be sealed; the circumstances that warrant sealing the document; an explanation of why no reasonable alternative to sealing the document exists; a statement that specifies whether the document should be accessible only to counsel of record (as opposed to the parties); a statement that specifies how long the document should be sealed and how the document should be handled upon unsealing; a statement, if applicable, that (i) the movant is filing the document provisionally under seal because another person has designated the document as confidential and the terms of a protective order require the movant to file the document provisionally under seal and (ii) the movant has unsuccessfully sought the consent of the other person to file the document unsealed; and 12 TOC Rule 5 (7) a statement, if applicable, that a nonparty who designated the document as confidential under the terms of a protective order has been served with a copy of the motion and notified of the right under BCR 5.2(c) to file a brief in support of the motion. (c) Briefing. A person may file a brief in support of or in opposition to the motion no later than twenty days after having been served with the motion. The Court may extend this deadline for good cause. The brief must comply with the requirements of BCR 7. (d) Disclosure pending decision. Until the Court rules on the motion, a document that is provisionally under seal may be disclosed only to counsel of record and unrepresented parties unless otherwise ordered by the Court or agreed to by the parties. (e) Decision by Court. The Court may rule on the motion with or without a hearing. In the absence of a motion or brief that justifies sealing the document, the Court may order that the document (or part of the document) be made public. (f) Public version of document. If the movant seeks to have only part of a document sealed by the Court, then the movant must file a public version of the document no later than ten days after filing the document provisionally under seal. The public version of the document may include redactions and omissions, but the redactions and omissions should be as limited as practicable. If the movant filed the document provisionally under seal because another person designated the document as confidential and the terms of a protective order required the movant to file the document provisionally under seal, then the movant must consult with the person who designated the document as confidential before filing the public version of the document. If the movant seeks to have the entire document sealed, then the movant must file a notice that the entire document has been filed provisionally under seal instead of filing a public The notice must contain a version of the document. nonconfidential description of the document. 5.3. Protective orders. The procedure for sealing a document in BCR 5.2 should not be construed to change any requirement or standard that governs the issuance of a protective order. The Court may therefore enter a protective order that contains standards and processes for the handling, filing, and service of a confidential document. To the extent that a proposed protective order outlines a procedure for sealing a confidential document, the proposed protective order should include (or incorporate by reference) the procedures described in BCR 5.2. Persons are 13 TOC Rule 5 encouraged to agree on terms for a proposed protective order before submitting it to the Court. History Note. 372 N.C. 911; 372 N.C. 844; 381 N.C. 886.