⚠ Recovered from a scanned original by OCR — check the official PDF before quoting exact language.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL, TEXARKANA AND TYLER DIVISIONS
REGARDING CASES ASSIGNED TO
U.S. DISTRICT JUDGE RODNEY GILSTRAP AND
U.S. DISTRICT JUDGE ROBERT W. SCHROEDER III
STANDING ORDER REGARDING PROTECTION OF PROPRIETARY AND/OR
CONFIDENTIAL INFORMATION TO BE PRESENTED TO THE COURT
DURING MOTION AND TRIAL PRACTICE!
WHEREAS, consistency and uniformity in both the form and substance of the methods
and procedures used by counsel to protect confidential and/or proprietary information presented
during motion or trial practice is a meritorious goal and further;
WHEREAS, reasonable planning and steps by counsel to efficiently marshal such
evidence in advance of the time for presentation will minimize the disruptions otherwise present
in such protective measures during motion or trial practice is an additional meritorious goal and
WHEREAS, such conduct, and these orders for the implementation of the same, fall
squarely within the Court’s inherent power to manage its docket and oversee the fair presentation
of evidence at all stages of the litigation process;
NOW, THEREFORE, IT IS ORDERED THAT :
1. Requests to seal or otherwise protect certain information of a confidential and/or
proprietary nature from public disclosure during a hearing or trial should be made before the
public disclosure of the information.
2. Any such request must demonstrate: a) that the information sought to be protected is
of such a sensitive nature that its disclosure creates a risk of harm that outweighs the strong
presumption in favor of public access to judicial proceedings; and b) that the parties have met
and conferred in good faith concerning the manner in which the sensitive information will be
presented at the hearing or at trial, with the goal of minimizing the need to seal the record and the
courtroom.
3. Except for requests to redact information referenced in Fed. R. Civ. P. 5.2(a),
requests to seal or protect information after its public disclosure at a hearing or trial must, in
addition to the preceding requirements, show good cause why the motion was not made in
advance of the disclosure.
4, The terms of this Standing Order shall immediately apply to and supplement all
active civil cases currently pending before the undersigned or that may otherwise be assigned to
the undersigned hereafter.
SIGNED AND EFFECTIVE THIS 1 DAY OF JUNE, 2016.
ow, Aven
U. S. DISTRICT JUDGE RODNEY GILSTRAP
Pu. bo fret (®
U.S. DISTRICT JUDGE ROBERT W. SCHROEDER II
*Commentary
Background
Since their adoption in 1937, the Federal Rules of Civil Procedure have required that at trial, the
testimony of witnesses must be taken in open court. See Fed. R. Civ. P. 43. Courts have
similarly recognized that "there is a strong presumption in favor of a common law right of public
access to court proceedings.” See In re Violation of Rule 28(d), 635 F.3d 1352, 1356 (Fed. Cir.
2011) (citing Nixon v, Warner Communications, Inc., 435 U.S. 589, 597-99 (1978)); see also
United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (Sth Cir. 2010) (there is
a “strong presumption that all trial proceedings should be subject to scrutiny by the
public.”), The U.S. Supreme Court has emphasized the societal importance of open trials,
writing that they "assure the public that procedural rights are respected, and that justice
is afforded equally" and cautioning that closed trials "breed suspicion of prejudice and
arbitrariness, which in turn spawns disrespect for law.” See Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 595 (1980),
In order to overcome the strong presumption of access, courts have held that a party seeking to
seal judicial records must provide "sufficiently compelling reasons that override the public
policies favoring disclosure. . . . That is, the party must articulate compelling reasons supported
by specific factual findings that outweigh the general history of access and the public policies
favoring disclosure, such as the public interest in understanding the judicial process. Apple Inc. vy.
Samsung Elecs, Co., 727 F.3d 1214, 1221 (Fed. Cir. 2013) (applying 9th Cir. law), When ruling
on a motion to seal court records, the Federal Circuit has held that a court must "conscientiously
balance the competing interests of the public and the party who seeks to keep certain judicial
records secret." Jd. Similarly, the Fifth Circuit has made clear that a district court’s discretion to
seal the record of judicial proceedings is to be exercised sparingly. Federal Say. & Loan Ins.
Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987)
Sealing of Courtrooms / Redaction of Trial Transcripts
As a result of privacy concerns due to the public availability of court documents online, Fed. R.
Civ. P. 5.2 was adopted in 2007 in compliance with section 205(c)(3) of the E-Government Act
of 2002, Public Law 107-347. The rule provided that four "personal identifiers" (parts of social
security numbers, years of birth, initials of a minor and certain digits of bank accounts) be
redacted from public filings. In response, the Eastern District of Texas adopted Local Rule CV-
5.2 which set forth a procedure for redaction of personal identifiers from court transcripts
through a process which took place after the hearing or trial. The rule was limited to personal
identifiers, but stated that parties could also request the redaction of additional information by
motion. This "additional information" most often takes the form of confidential technical or
financial information in complex civil cases. The rule did not set forth requirements for the
timing for such additional motions, or establish standards for such redactions, or for the
corresponding requests to seal the courtroom when information that would be the subject of such
requests is used.
Since the adoption of CV-5,2, parties have pursued different approaches to protecting
confidential information at hearings or trials. The parties to the case or an interested third party
may request that the courtroom be sealed during the presentation of such testimony. Or they
may seek alternative trial presentation procedures to protect the confidentiality of the information
without requiring sealing, i.e. requiring witnesses not to read the information aloud, or place it on
the courtroom display screens, or redacting names or financial numbers from the portions
displayed at trial while leaving them in unredacted form in the admitted exhibits.
In addition, parties have requested either at the time or - assuming that the same timing as
requests under CV-5,2 would apply - several days or weeks after the hearing or trial - that the
relevant portions of the trial transcript be "sealed." The term "sealing" is actually a misnomer,
since what is actually done is redaction of the publicly available version of the transcript, with
the original "locked" version of the transcript still available to the district and appellate
courts. The practice of processing substantial requests for redactions after a hearing or trial
imposes on court staff significant burdens, and in many cases the requested redactions are of
information which may have been publicly disclosed without any request for special treatment
during trial, or which could have been protected at trial without sealing by an alternative method
of presentation.
This Order
This standing order is based upon and codifies the existing case law which balances the interests
of parties seeking to protect confidential information against the strong presumption in favor of a
common law right of public access to court proceedings noted above. It does so by providing
guidance as to when such requests should be made, and what standards apply to such requests.
When Should the Request Be Made?
The above standing order makes clear that requests to seal or otherwise protect information from
public disclosure during a hearing or trial should be made before the public disclosure of the
information. This avoids the current problem of parties mistakenly assuming that redaction and
sealing requests can be made after the fact, as is the case for requests to redact information
referenced in Fed, R. Civ. P. 5.2(a), and gives parties the maximum opportunity to work out
sealing and redaction issues by agreement.
Requests to seal or protect information after its public disclosure at a hearing or trial are not
prohibited, but must, in addition to the normal requirements, show good cause why the motion
was not made in advance of the disclosure. Failing a clear showing of good cause such requests
should be denied.
What Are the Standards for Sealing/Redaction?
The standards for sealing and redaction are well-established, as noted above, and the above
standing order makes no substantive change to them, but instead simply brings them to the
parties’ attention by requiring that any such request must demonstrate:
a) that the information sought to be protected is of such a sensitive nature that its disclosure
creates a risk of harm that outweighs the strong presumption in favor of public access to judicial
proceedings; and
b) that the parties have met and conferred in advance and in good faith concerning the manner in
which the sensitive information will be presented at the hearing or at trial, with the goal of
minimizing the need to seal the record and the courtroom.
The latter requirement gives the parties and the Court the ability to utilize alternative methods of
presentation to avoid unnecessary sealing of the courtroom, and redactions to the transcript, as
well as opportunities to minimize the inherent courtroom disruptions that the sealing process
includes.
