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Filing Confidential Documents

Counsel should be aware that amendments to Local Rule 26.2 in April 2006 changed certain aspects of the way documents designated as confidential must be dealt with in filings with the court. First, pursuant to amended L.R. 26.2(b), no document may be filed under seal without a prior order of the court specifying the particular document or portion of a document to be filed under seal. This amendment changed the rule by making clear that only the particular document that has been previously determined by the court to be deserving of protection may be filed under seal, regardless of the existence of any protective order. Thus, parties are not to file briefs or compilations of exhibits as restricted or under seal unless the court has expressly so ordered, with respect to the particular briefs or exhibits. See Committee Comments to L.R. 26.2. Second, pursuant to L.R. 26.2(c) and (d), the amended rule now offers Judges two options regarding how to handle documents designated as confidential when those documents are submitted for consideration in connection with a motion, brief or other matter. The two options are as follows:

1. Filing the confidential document with the Clerk=s Office. Under this option, the confidential documents must be filed with the Clerk=s Office, and each confidential document presented for filing must include a copy of a restricting order entered by the Judge for that specific document or portion of document. The attorney or party submitting the confidential document must file it in a sealed enclosure that conspicuously states on the face of the enclosure the attorney=s or party=s name and address, including email address if the attorney is registered as a Filing User of electronic case filing, the caption of the case, and the title of the document. See L.R. 26.2(c). The final paragraph of the restricting order shall provide: (1) the identity of the persons, if any, who are to have access to the confidential materials without further order of court; and (2) instructions for the disposition of the restricted documents following the conclusion of the case. See L.R. 26.2(b).

2. Submitting the confidential document in chambers and filing a redacted copy with the Clerk=s Office. Under this option, documents designated as confidential shall not be filed with the Clerk=s Office. Rather, any such documents requiring the court=s review shall be submitted to chambers in camera in a sealed envelope bearing the caption of the case, case number, the title of the motion or response to which the submitted confidential information pertains, and the name and telephone number of counsel submitting the documents. The producing party must file a redacted copy of all documents containing confidential information with the Clerk=s Office for the record. In addition, the producing party must maintain the original documents intact for any further review. See L.R. 26.2(d).

In cases where a protective order is within the scope of the District Judge=s referral, Judge Valdez will enforce the filing practice of the referring District Judge.

In consent cases, Judge Valdez follows the first option discussed above. Counsel seeking to file documents previously designated as restricted pursuant to a protective order must therefore use the following procedure:

If a party intends to file a motion or other paper with the court which contains information designated as confidential by the other party or a non-party pursuant to a protective order between the parties, the filing party shall give reasonable notice of that intention to the designating party. A party seeking to file its own confidential information under seal, or a designating party given notice that a party intends to file the designating party=s confidential information, shall file and notice for hearing a Motion to File Under Seal prior to the due date of the particular filing. The Motion to File Under Seal must demonstrate good cause by including a specific description of the document (or categories of documents) that the party seeks to file under seal and explaining why confidentiality is necessary, consistent with the Seventh Circuit=s descriptions of what is protectable. The movant=s counsel shall bring a copy of the document or documents to the hearing for examination by the court.

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