(a) Good Faith. In addition to the certifications set forth in Fed. R. Civ. P.
11(b), any person who files a document or item under seal, with or without prior
leave, certifies that sealing is appropriate to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances
and with due regard to the public’s right of access and L.R. 1.3(a)(2).
(b) When Motion for Leave Required. A motion for leave to file under
seal is required unless the case is sealed or unless:
(1) a protective order is sought under Fed. R. Civ. P. 26(c) and L.R. 26.4;
(2) a party is submitting documents for in camera review; or
(3) filing under seal is otherwise preauthorized by state or federal law or
an order already entered in the case.
(c) Caption. Any document preauthorized to be filed under seal must
include the phrase “FILED UNDER SEAL” in the case caption, followed by
citation to the authority for sealing, e.g., “Per Fed. R. Civ. P. 45(e)(2)(B),” or “D.
Mont. L.R. 5.1(b)(1), 26.4.”
(d) Contents of Motion for Leave. A motion for leave to file under seal
must:
(1) be filed in the public record of the case;
(2) without disclosing confidential information, describe the document or
item to be sealed and explain why inclusion in the public record is not
appropriate; and
(3) either:
(A) state why it is not feasible to file a redacted version of the
document or item in the public record, or
(B) be accompanied by a redacted version of the document or item
filed in the public record.
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(e) Electronic Filing. Following the directions of the clerk’s office,
attorneys filing electronically must lodge under seal the document or item for
which leave to seal is sought. Unless ex parte filing is authorized, the filing party
must serve the sealed documents on all other parties.
(f) Nonelectronic Filing. Persons not filing electronically must submit to
the clerk:
(1) the document or item to be sealed, placed in an envelope with the case
number, date, and “Filing Under Seal Requested” clearly printed on
the envelope; and,
(2) if required, the motion for leave to seal and brief in support.
(g) Response and Order.
(1) The court may rule on a motion for leave to seal without awaiting a
response.
(2) If leave to file under seal is granted, the document or item will be
deemed filed under seal, and the party need not refile the document.
(3) The court may order that a document be redacted for the public
record. Until the filing party complies, the unredacted document will
not be deemed filed.
(4) If leave to file under seal is denied, the document or item will remain
in the record under seal but will be deemed not filed.
(h) Highly Sensitive Documents (HSDs). A Highly Sensitive Document
(HSD) is a document or other material that contains sensitive, but unclassified,
information that warrants exceptional handling and storage procedures to prevent
significant consequences that could result if such information were obtained or
disclosed in an unauthorized way. Factors to be considered in making the
determination include whether the document involves matters of national security;
foreign sovereign interests; cybersecurity; intellectual property or trade secrets;
terrorism; public officials; or the reputational interests of the United States.
(1) In order to have a document filed as an HSD, a party must submit to
the clerk’s office for filing a motion to treat a document as an HSD,
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the HSD sought to be filed, and a certificate of service. The required
documents shall be submitted nonelectronically to the clerk’s office in
a sealed envelope marked “HIGHLY SENSITIVE DOCUMENT.”
(2) Upon receipt, the clerk’s office will make an informational entry on
the case docket indicating that an HSD motion was received and
delivered to chambers.
(3) The court will issue an order on the motion and, if granted, an
informational entry will be made on the case docket indicating that the
HSD has been filed with the court. The clerk’s office will maintain the
HSD in a secure format outside CM/ECF. If the motion is denied, the
filing party is responsible for filing the document under existing
procedures set forth in these rules.
