CONFIDENTIALITY ORDERS AND RESTRICTING PUBLIC ACCESS UNDER

CM/ECF (a) Scope of Rule (1) This rule shall govern any request by a party or parties to seal, or otherwise restrict public access to, any materials filed with the Court or utilized in connection with judicial decision-making. This rule shall also govern any request by a party or parties to seal, or otherwise restrict public access to, any judicial proceedings. (2) As used in this rule, "materials" includes all documents of any nature and in any medium. "Judicial proceedings" includes hearings and trials but does not include conferences in chambers.

(3) This rule shall not apply to any materials or judicial proceedings which must be sealed or redacted pursuant to statute or other law. (b) Confidentiality Order (1) Parties may enter into written agreements to keep materials produced in discovery confidential and to return or destroy such materials as agreed by parties and as allowed by law. (2) as described above. Parties may submit to a Judge an agreed-on form of order which embodies a written agreement 10 (3) No form of order submitted by parties shall supersede the provisions of this rule with regard to the filing of materials or judicial proceedings.

The form of order may, however, provide for the return or destruction of discovery materials as agreed by parties. The form of order shall be subject to modification by a Judge at any time. (4) Any order under this section shall be filed electronically under the designation “confidentiality order.” (5) Any dispute regarding the entry of an order, or the confidentiality of discovery materials under any order, under this section shall be brought before a Magistrate Judge pursuant to L.Civ.R. 37.1 (a)(1). Absent extraordinary circumstances, a party shall not file a motion or other materials with (6) redacted information, absent a confidentiality order which expressly grants leave to file under seal or other appropriate leave of Court.

(c) Motion to Seal or Otherwise Restrict Public Access (1) Form of Motion. Any request by a party, parties or nonparty to file materials under seal, or otherwise restrict public access to, any materials or judicial proceedings shall ordinarily be made on notice, by a single, consolidated motion on behalf of all parties, unless otherwise ordered by the Court on a case-by-case basis, including any non-party which has produced materials as to which it seeks to restrict public access. No brief is necessary in support or in opposition to the motion unless a party believes it will assist the Court. The single, consolidated motion shall include all information required by (c)(3) below.

Any motion and supporting papers to seal or otherwise restrict public access shall be available for review by the public. In a motion that relies on materials designated as confidential material, only the specific relevant portions cited in the motion, as may be necessary to preserve the context, are to be part of the filing. Uncited confidential materials should not be included as part of the filing. (2) Any motion made under this rule shall be (a) filed within 14 days following completion Timing (i) Not later than 21 days after the first filing of sealed materials, the parties shall confer in an effort to narrow or eliminate the materials or information that may be the subject of a motion to seal.

(ii) of the briefing on the underlying motion of materials sought to be sealed, or within 14 days following the filing of the pleading or letter to the Court sought to be sealed, or within 14 days following ECF notice of availability of the transcript of a court proceeding sought to be sealed, or as may be ordered by the Court; and (b) filed electronically under the designation "motion to seal materials" or "motion to seal judicial proceedings," and shall be returnable on the next available motion date. (iii) In any action in which materials have been filed temporarily under seal pursuant to (c)(4) of this rule, and the motion or other filing which includes such materials is resolved or otherwise terminated before all briefing is completed, the party filing such materials shall have a continuing obligation to file a motion to seal. Such motion shall be filed within 14 days following the date on which the last of such materials was filed under temporary seal, or as may otherwise be ordered by the Court. (3) Contents of Motion.

Any motion papers shall include as part of an affidavit, declaration, certification or other documents of the type referenced in 28 U.S.C. § 1746, which shall be based on personal knowledge as required by Local Civil Rule 7.2(a), an index, substantially in form suggested by Appendix U, describing with particularity: (a) the nature of the materials or proceedings at issue; (b) the legitimate private or public interest which warrants the relief sought; (c) the clearly defined and serious injury that would result if the relief sought is not granted; 11 (d) why a less restrictive alternative to the relief sought is not available; (e) any prior order sealing the same materials in the pending action; and (f) the identity of any party or nonparty known to be objecting to the sealing request. Such index shall also include, as to each objection to seal any material: (g) the materials to which there is an objection; (h) the basis for the objection; and (i) if the material or information was previously sealed by the Court in the pending action, why the materials should not be maintained under seal. Proposed Findings of Fact and Conclusions of Law shall be submitted with the motion papers in the proposed order required by (c)(6) below. Any party opposing the sealing request shall submit an alternative proposed order including the party's Proposed Findings of Fact and Conclusions of Law.

(4) Temporary Sealing Pending Decisions on the Motion to Seal; Redacted Public Filings. Any materials deemed confidential by a party or parties and submitted under temporary sealing subject to a motion to seal or otherwise restrict public access shall be filed electronically under the designation "confidential materials" and shall remain sealed until such time as the motion is decided, subject to Local Civil Rule 72.1(c)(1)(C). When a document to be filed contains both confidential and non-confidential information, an unredacted version of that document shall be filed under seal. Thereafter, and subject to further order of the court, a redacted, publicly available version of all corresponding filings shall be filed within 14 days following completion of the briefing on the underlying motion of materials sought to be sealed, or within 14 days following the filing of the pleading or letter to the court sought to be sealed, or within 14 days following ECF notice of availability of the transcript of a court proceeding sought to be sealed, or as may be ordered by the Court.

(5) Intervention. Any interested person may move to intervene pursuant to Fed. R. Civ. P. 24(b) before the return date of any motion to seal or otherwise restrict public access or to obtain public access to materials or judicial proceedings filed under seal. (6) Sealing Order. Any order or opinion on any motion to seal or otherwise restrict public access shall include findings on the factors set forth in (c)(3) above as well as other findings required by law and shall be filed electronically under the designation "order" or "opinion to seal." Such orders and opinions may be redacted.

Unredacted orders and opinions may be filed under seal, either electronically or in other medium. (7) Required Filing to Conform to Order. To the extent that any order or opinion grants less than the full relief sought for any document filed in redacted form, within 14 days after the order or opinion, or as otherwise directed by the Court, the filing party of the redacted materials shall file an amended redacted document or documents, reflecting the rulings of the Court. (8) Denial of Motion to Seal.

To the extent any order or opinion denies a motion to seal material that has been filed under temporary seal, such material shall be unsealed by the Clerk of Court following the 14-day period set forth in Local Civil Rule 72.1(c)(1)(C), unless a notice of appeal is timely filed. (9) Emergent Application. Notwithstanding the above, on emergent application of a party, parties, nonparties or sua sponte, a Judge may seal or otherwise restrict public access to materials or judicial proceedings on a temporary basis. The Judge shall do so by written order which sets forth the basis for the temporary relief and which shall be filed electronically under the designation "temporary order to seal." The sealing party shall have 14 days from entry of the order to file a motion to seal, in accordance with this rule.

Any interested person may move pursuant to L. Civ. R. 7.1 and Fed. R. Civ. P. 24(b) to intervene, which motion shall be made returnable on the next available return date. (10) Failure to Timely File. When a motion to seal or otherwise restrict public access is not timely filed in accordance with this rule, the Court may direct that the filings be publicly available without notice. (d) Settlement Agreements 12 (1) No party or parties shall submit a proposed settlement agreement for approval by a Judge unless required to do so by statute or other law or for the purpose of retaining jurisdiction.

(2) Any settlement agreement filed with the Court or incorporated into an order shall, absent an appropriate showing under federal law, be deemed a public record and available for public review. (e) Dockets No docket shall be sealed. However, entries on a docket may be sealed pursuant to the provisions of this rule. (f) Web Site The Clerk shall maintain for public review on the official Court PACER site a consolidated report which reflects all motions, orders, and opinions described by this rule.

(g) Transcripts/Digital Recordings (1) This subsection applies to transcript/digital recording redactions which are separate and apart from the redaction of personal identifiers mandated by Federal Rule of Civil Procedure 5.2 and the Court's Electronic Case Filing Policies and Procedures. (2) A motion to redact and seal any part or all of a transcript/digital recording shall satisfy the standards for sealing set forth in L.Civ.R. 5.3(c). All motions to redact and seal any transcript shall be deemed to apply to the original record as defined in 28 U.S.C. § 753. Any transcript that is the subject of a motion to redact and seal shall be temporarily sealed by the Clerk's Office, pending the Court's determination of the motion.

Because transcripts are not available on PACER for ninety (90) days, the party filing the motion to redact and seal shall not electronically file its proposed redacted version of the transcript as part of its motion papers, but shall instead submit same directly to Chambers for the appropriate Judge's review. If the motion to redact and seal is granted, the party filing the motion shall submit to the court reporter/transcription agency a Statement of Redaction and Sealing pursuant to L.Civ.R. 5.3, available at http://www.njd.uscourts.gov/forms.html at form DNJ-CMECF-009. After receiving same, unless the entire transcript has been ordered sealed, the court reporter/transcription agency shall submit the redacted version of the transcript to the Clerk of the Court for filing on ECF. All other motion papers shall be available for public review in accordance with L.Civ.R. 5.3(c)(1).

(3) To prevent public access to any transcript/digital recording that is the subject of a motion to redact and seal, the party filing the motion to seal shall serve a copy of the Notice of Motion to Seal on the appropriate court reporter/transcription agency with a cover letter indicating that the transcript/digital recording is the subject of a pending motion to seal and should not be made available to the public until the pending motion is decided by the Court. (4) Any party who in good faith believes that the confidential information entitled to be sealed pursuant to L.Civ.R. 5.3(c) was discussed during a recorded judicial proceeding may make an application pursuant to L.Civ.R. 5.3(c)(9) to temporarily seal the contents of the transcript/digital recording of that proceeding pending the party's review of the transcript/digital recording and filing of a formal motion to redact and seal. Absent such an application being made and granted, any purchased transcript shall be available for viewing in its unredacted state at the court public terminal until a formal motion to redact and seal is filed. (h) Effective Date This rule shall be effective as of September 30, 2016 and shall apply to all motions under this rule.

Adopted: February 24, 2005. Amended: March 9, 2007; March 1, 2010; June 19, 2013; September 30, 2016, March 24, 2021. History. In June of 2004, the Board of Judges was presented with a Lawyers Advisory Committee recommendation for the adoption of a local civil rule that would provide for public (i.e., press) notice of 13 requests to seal, among other things, documents and proceedings.

Several months before, in February of 2004, the District of New Jersey implemented CM/ECF (Case Management/Electronic Case Filing). This allowed the electronic filing of pleadings, motions, briefs, etc., under descriptive “events.” CM/ECF also allowed remote access to dockets and filed materials as well as the creation of compilations or reports on the events. Recognizing that CM/ECF might have a significant impact on what the Lawyers Advisory Committee recommended, the Board of Judges deferred the recommendation. Thereafter, the proposed local civil rule in its current form (“the Rule”) was drafted.

It was reviewed on an informal basis by representatives of the Administrative Office of the United States Courts and the Federal Judicial Center. It was also reviewed by Professor Laurie Kratky Dore of Drake University Law School in Des Moines, Iowa. Professor Dore is the author of a leading article on confidentiality, “Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement,” 74 Notre Dame L. Rev. 283 (1999), and of “Settlement, Secrecy, and Judicial Discretion: South Carolina’s New Rules Governing the Sealing of Settlements,” 55 S.C. L. Rev. 791 (2004). The Rule was circulated among members of the Committee on Rules on Practice and Procedure of the Board of Judges and thereafter submitted to the Lawyers Advisory Committee.

The Rule is intended to reflect Supreme Court and Third Circuit law and does not set forth in detail all standards established by precedent. Subparagraph (a)(1). This subparagraph describes the scope of the Rule. It applies to any application to seal materials filed with the Court, materials utilized in connection with judicial decision-making, or judicial proceedings.

The use of the phrase, “otherwise restrict public access,” as used in the Rule, is intended to address any application which might seek less than the complete sealing of materials or proceedings. The phrase, “in connection with judicial decision-making,” is intended to exclude, among other things, letters to judges which are not substantive in nature. See, for the definition of a “judicial record”, In re Cendant Corp., 260 F.3d 183 (3d Cir. 2001), and for the distinction between discovery and non-discovery pretrial motions, Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir.1993).

Subparagraph (a)(2). This subparagraph defines “materials” and “judicial proceedings.” The definitions are intended to be broad and to allow for the development of case law. For that reason, the word “materials” is used rather than “judicial records,” the latter approaching a term of art. Note that judicial proceedings are not intended to encompass in-chambers conferences. Subparagraph (a)(3).

The purpose of this subparagraph is to make clear that the rule is not intended to affect any “statute or other law” that mandates sealing of materials or judicial proceedings (for example, amended Section 205 (c)(3) of the E-Government Act of 2002, Pub. L. No. 107-347, and the qui tam provisions of the False Claims Act, 31 U.S.C. § 3729 et seq.). Subparagraph (a)(4). The right of public access to filed materials and judicial proceedings derives from the First Amendment and federal common law.

Consistent with this right, this subparagraph establishes a presumption in favor of public access. Subparagraph (b). In keeping with the comprehensive nature of the Rule, this subparagraph is intended to apply to unfiled discovery materials and to be consistent with footnote 17 of Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994): “because of the benefits of umbrella protective orders in cases involving large-scale discovery, the court may construct a broad protective order upon a threshold showing by the movant of good cause. ...

After delivery of the documents, the opposing party would have the opportunity to indicate precisely which documents it believed not to be confidential, and the party seeking to maintain the seal would have the burden of proof with respect to those documents.” 23 F.3d at 787 n.17 (citation omitted). As a general proposition, there is no right of public access to unfiled discovery materials. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984); Estate of Frankl v. Goodyear Tire and Rubber and Co., 181 N.J. 1 (2004) (per curium). This subparagraph, however, is not intended to prohibit any interested person from seeking access to such materials.

14 Subparagraph (b)(1) recognizes the above proposition, allows parties to enter into agreements such as that contemplated by Pansy, and also allows materials to be returned or destroyed. See, with regard to “Agreements on Return or Destruction of Tangible Evidence,” ABA Section on Litigation Ethical Guidelines for Settlement Negotiations, Guideline 4.2.4 (August 2002). Subparagraph (b)(2). This subparagraph describes the procedure which parties must follow in submitting blanket protective orders.

Consistent with Pansy, there must be a showing by affidavit or certification of “good cause” and specific information must be provided. The affidavit or certification must also be available for public review. The intent of subparagraph (b)(2) is to allow parties to describe the materials in issue in categorical fashion and thus to avoid document-by-document description. This subparagraph does not go in greater detail as to the contents of the affidavit or certification.

The sufficiency of an affidavit or certification is a matter for individual determination by a Judge. Subparagraph (b)(3). This subparagraph is intended to make plain the distinction between blanket protective orders and orders for the sealing of materials filed with the Court. Blanket protective orders should not include a provision that allows materials to be filed under seal with the Court.

Subparagraph (b)(4). This subparagraph, together with subparagraph (b)(2), describes “events” for purposes of CM/ECF. Affidavits or certifications in support of blanket protective orders as well as the protective orders should be electronically filed using these events. Subparagraph (b)(5).

This subparagraph contemplates that disputes may arise with regard to the terms of blanket protective orders and the designation of materials under such orders. Should such disputes arise, the parties are directed to the procedure set forth in Local Civil Rule 37.1(a)(1) for the resolution of discovery disputes. The Rule is not intended to be applicable to materials submitted with regard to discovery disputes. Subparagraph (b)(6).

This subparagraph has been added to further remind parties that there must be in place either a confidentiality order with an express leave to file under seal or other order of the Court before any documents can be filed under seal. Only in extraordinary circumstances, which are rare, such as commencement of an action with an order to show cause, should a motion to seal in the absence of a confidentiality order be filed. In any event, even where there are extraordinary circumstances, a separate motion to seal must be filed in accordance with this Rule. Subparagraph (c).

This subparagraph establishes the procedure by which applications must be made to seal or otherwise restrict public access to filed materials or judicial proceedings. Such applications may be made in advance of, as part of, or parallel with substantive motions. Subparagraph (c)(1). This subparagraph provides that any such application must be made by formal motion.

Subparagraph (c)(2). This subparagraph provides that any motion must be available for public access and must set forth, at a minimum, certain specified information. Subparagraph (c)(3). Under Third Circuit precedent, the filing of otherwise confidential material may make that material a public record and subject to public access.

See, e.g., Bank of America Nat’l Trust and Savings Ass’n v. Hotel Rittenhouse Assoc., 800 F.2d 339 (3d Cir. 1988). This subparagraph is intended to allow confidential materials to be filed and remain under seal until a motion to seal or otherwise restrict public access is ruled on. Otherwise, arguably confidential materials would be “transmuted” into materials presumptively subject to public access.

See Gambale v. Deutsche Bank AG, 377 F.3d 133, 143 n.8 (2d Cir. 2004). Subparagraph (c)(4). “[T]he procedural device of permissive intervention is appropriately used to enable a litigant who was not an original party to an action to challenge protective or confidentiality orders entered in that action.” Pansy, 23 F.3d at 778.

Consistent with Pansy, this subparagraph allows a person to move to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure before a motion to seal or to otherwise restrict public access is returnable. This subparagraph is not intended to foreclose any subsequent motion to modify or vacate an order. 15 Subparagraph (c)(5). This subparagraph serves two functions.

First, it identifies the “event” corresponding to a sealing order or opinion, as subparagraph (c)(1) identifies events for sealing motions. Subparagraph (c)(5) also reminds Judges that, as appropriate, opinions and orders on motions to seal or otherwise restrict public access may be filed in redacted and unredacted form. Subparagraph (c)(6). This subparagraph is patterned after Section 7(a) of the Vermont Rules for Public Access to Court Records.

It is intended to address emergent applications by parties where there may be a legitimate need for a temporary sealing order (for example, when an ex parte seizure order is sought in a trademark infringement action). The subparagraph identifies the appropriate CM/ECF event and also provides for motions to intervene. Subparagraph (d). As a general proposition, settlement agreements are not presented to Judges for “approval.” Such approval has no legal significance.

See. e.g., Pascarella v. Bruck, 190 N.J. Super. 118 (App. Div. 1983). Moreover, judicial approval of a settlement may make that settlement a public record and subject to public access.

See Jessup v. Luther, 277 F.3d 926 (7th Cir. 2002). For these reasons, subparagraph (d)(1) proves that settlement agreements will not be approved by Judges unless such approval is required by law (for example, in class actions or actions involving infants). Subdivision (d)(1) does, however, provide for judicial approval of a settlement if the intent of the parties in seeking that approval is to have the Court retain jurisdiction to enforce a settlement agreement.

See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994). Subdivision (d)(2) provides that, once filed with the Court or incorporated in an order, a settlement agreement becomes a public record and subject to public access absent an appropriate showing. Subparagraph(e).

Dockets are sources of basic information about civil actions and are historically public records. See, e.g., United States v. Criden, 675 F.2d 550 (3d Cir.1982). Thus, this subparagraph provides that dockets will not be sealed but that, consistent with the Rule, specific docket entries may be. See Webster Groves School Dist. v. Pulitzer Publishing Co., 898 F.2d 1371 (8th Cir.

1990). Subparagraph (f). This subdivision requires the Clerk to maintain a report which reflects all motions, order and opinions described in the Rule. The intent of this subparagraph is that reports be generated based on the “events” referred to in the Rule and be available to the general public through PACER.

SUPPLEMENTAL EXPLANATORY NOTE

After publication on December 20, 2004, several comments were received. These comments led to the addition of language in the Explanatory Note (History and subparagraphs (b), (b)(5), (c) and (c)(4 intended to clarify the intent of the Rule. Subparagraph (d)(2) of the Rule and the accompanying Explanatory Note were revised to reflect that the appropriate standard may derive from other than Fed. R. Civ. P. 26(c). Finally, a new subparagraph (g) was added to the Rule.