Withdrawing, Disposing of, and

Unsealing Papers and Exhibits (a) Withdrawing Papers and Exhibits. (1) In General. A paper or exhibit filed with the court may not be withdrawn from the office or custody of the clerk except by order of the court, but such an order should be entered only in extraordinary circumstances. Any withdrawal of a paper or exhibit pursuant to a court order must be recorded through an appropriate docket entry. (2) During Trial. The court reporter engaged to transcribe a trial proceeding may temporarily withdraw any paper or exhibit for use during that proceeding. All papers and exhibits admitted into evidence or designated to accompany the transcript of the proceeding must remain in the the reporter’s custody until transcript is filed with the clerk. (b) Disposing of Physical Exhibits. All trial exhibits, including models, diagrams, depositions, transcripts, briefs, tables, and charts, will be destroyed or otherwise disposed of by the clerk unless they are removed from the clerk’s custody by the party who produced them either: (1) within 60 days after the entry of final judgment by this court; or (2) in the event of an appeal, within 90 days after the receipt and filing of a mandate or other process or certificate showing a final disposition of the case by the appellate court. (c) Unsealing Papers and Exhibits. Unless otherwise required by statute or order and absent a timely objection by any party, the clerk, upon notice to the parties, may unseal any paper or exhibit filed under seal either: RCFC 77.4 94 (1) 5 years after the entry of final judgment by this court; or (2) in the event of an appeal, 5 years after the receipt and filing of a mandate or other process or certificate showing disposition of the case by the appellate court. (As revised and reissued May 1, 2002; as amended Nov. 15, 2007, Nov. 3, 2008, July 13, 2009; as renumbered July 1, 2019.) Rules Committee Notes 2002 Revision RCFC 77.3 has no FRCP counterpart. The rule has been amended in several respects: First, former subdivision (a) was deleted, thereby eliminating the practice of permitting temporary withdrawal of exhibits and papers by the parties. The need to accommodate the copying of extensive parts of a record shall be addressed directly through arrangements made by the clerk. Subdivision (a), formerly subdivision (b), was amended to clarify that the reporter is to retain custody of the transcript and exhibits until they are filed with the clerk. New subdivision (b), formerly subdivision (c), clarifies that no withdrawal of papers or exhibits from the clerk’s office may occur in the absence of a court order, and then only in extraordinary circumstances. The fact of withdrawal shall be preserved in the court’s docketing entries. New subdivision (c), formerly subdivision (d), was rewritten to clarify the practice with respect to the disposition of physical exhibits and to make clear the parties’ obligation to retrieve such exhibits, to avoid their loss through routine disposal. The reference to in camera materials was omitted, because such materials are not filed with the clerk’s office. New subdivision (d) establishes a procedure for handling materials filed under seal, requiring the parties affirmatively to indicate a desire to maintain filings in closed cases under seal. 2007 Amendment Subdivision (d) of RCFC 77.3 has been amended by substituting the introductory words “unless otherwise required by statute or order” in place of the former text “unless otherwise specified by order.” The amendment is intended to recognize that under certain statutes, materials originally filed under seal must be maintained under seal in perpetuity. See, e.g., National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-12(d)(4)(A). 2008 Amendment The language of RCFC 77.3 has been amended to conform to the general restyling of the FRCP. 2009 Amendment The last sentence of subdivision (a)(1) has been amended to clarify that the withdrawal of a paper or exhibit filed with the clerk must be recorded through an appropriate docket entry. Further, as an historical note, we add that the current structure of RCFC 77.3 relates back to the restyling of the rule in 2008 when former subdivisions (a) and (b) were combined into the remaining new subdivisions renumbered as subdivisions (b) and (c). subdivision (a) and the 2019 Amendment RCFC 77.4 formerly appeared in these rules as RCFC 77.3 and has been renumbered to accommodate the logical placement of new RCFC 77.3 (“Chief Judge Vacancy”), adopted July 1, 2019.