United States District Court

(a) Definitions. As used in this rule the term:

"Restricted document" means a document or an exhibit to which access has been restricted either by a written order or by a rule;

"Sealed document" means a restricted document which the court has directed be maintained within a sealed enclosure such that access to the document requires breaking the seal of the enclosure;

"Document awaiting expunction" means a document or an exhibit which the court has ordered held for possible expunction but for which the period for holding prior to final destruction has yet to pass; and

"Restricting order" means any order restricting access to one or more documents filed or to be filed with the court.

(b) Terms of a Restricting Order. The court may for good cause shown enter an order directing that one or more documents be restricted. No attorney or party may file a restricted document without prior order of court specifying the particular document or portion of a document that may be filed as restricted. The final paragraph of the order shall state the following information: (1) the identity of the persons, if any, who are to have access to the documents without further order of court; and (2) instructions for the disposition of the restricted documents following the conclusion of the case.

(c) Filing restricted documents. A copy of the restricting order must be included with any restricted document presented for filing. The attorney or party submitting a restricted 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 e-mail 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; or

(d) At the discretion of the judge, the court may order the parties to retain copies of all documents containing confidential information which are provided in discovery under the protective order. Documents containing the confidential information shall not be filed with the clerk of court. 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 shall maintain the original documents intact for any further review. A redacted copy of all documents containing confidential information shall be filed with the clerk of court for the record.

(e) Docket Entries. The court may on written motion and for good cause shown enter an order directing that the docket entry for a restricted document show only that a restricted document was filed without any notation indicating its nature. Absent such an order a restricted document shall be docketed in the same manner as any other document except that the entry will indicate that the document is restricted.

(f) Inspection of Restricted Documents. The clerk shall maintain a record in a manner provided for internal operating procedures approved by the Court of persons permitted access to restricted documents. Such procedures may require anyone seeking access to show identification and to sign a statement to the effect that they have been authorized to examine the restricted document.

(g) Disposition of Restricted Documents. When a case is closed in which an order was entered pursuant to section (b) of this rule, the clerk shall maintain the documents as restricted documents for a period of 63 days following the final disposition including appeals. Except where the court in response to a request of a party made pursuant to this section or on its own motion orders otherwise, at the end of the 63 day period the clerk shall return the restricted documents in the sealed enclosure to the attorney or party who or which filed it.

Committee Comments

The amendment specifies what is required in order to file with the clerk of court materials to which access is restricted. Fed. R. Civ. P. 26(c) authorizes protective orders that limit disclosure of material produced in discovery. The current version of LR 26.2 allows for entry of a protective order that identifies categories of documents entitled to restricted status, and for parties thereafter to file documents with the clerk’s office under seal without further court order. The amendment to LR 26.2(b) (and the addition of new LR 26.2(c)) changes the existing 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. 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. The courtesy copy provided for the judge’s use in chambers may include a copy of the restricted documents.

The practice that is currently permitted under LR 26.2 is consistent with Seventh Circuit law. See Citizens First Nat’l Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 946 (7^th Cir. 1999) ("there is no objection to an order that allows the parties to keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record, provided the judge (1) satisfies himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets and (2) makes explicit that either party and any interested member of the public can challenge the secreting of particular documents"). That said, the amendment addresses two matters of increasing concern under the current rule.

First, Seventh Circuit precedent makes clear that particular care should be exercised when restricting access to materials that are filed with the court, for example, as an exhibit to a motion. While parties may have property or privacy interests that warrant the filing of certain documents under seal, "the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding." Citizens First Nat’l Bank, 178 F.3d at 945. By requiring a court order specifying that a particular document may be filed under seal, the amendment will discourage parties from being overly-generous in designating documents to be filed under seal, and thereby will better protect against the filing under seal of documents that should be in the public domain.

Second, the amendment will address the substantial volume of materials filed under seal that are accumulating in the clerk’s storage. The undue accumulation of materials filed under seal imposes a substantial cost on the court. That was an important consideration leading to the changes to Fed. R. Civ. P. 5(d) and to the predecessor to LR 26.2 eliminating the former practice of routinely filing in the clerk’s office discovery requests and responses. That consideration also weighs in favor of requiring specific court authorization before a particular document may be filed under seal.

The amendment to LR 26.2(e) (now redesignated at LR 26.2(f)) also addresses the burden on the clerk’s office in dealing with documents filed under seal. The amendment makes clear that the clerk is not required to retain documents more than 63 days following the disposition of the case and, in addition, directs that at that end of that period, the clerk simply return the documents under seal to the attorney or party filing them.

The amendment to LR26.2(d) offers a second option regarding protective orders. This option is a result of comments received from the general bar in response to the publication of the proposed amendment. The court noted that offering two options for protective orders will allow the court to test the proposal in which the parties maintain the sealed records and only provide redacted information to the clerk’s office. The general bar compared the proposed procedure to the current procedure for maintaining exhibits and felt this may be a more efficient way of keeping the volume of restricted documents manageable in the clerk’s office. Each judge has a web page that allows the judge to post which option will be used in the management of protective orders