4.7 Motions for Leave to File a Document Under Seal

LibraryFederal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

4.7 MOTIONS FOR LEAVE TO FILE A DOCUMENT UNDER SEAL

4.701 Eastern District of Virginia.

Rule 5 of the Local Civil Rules (E.D. Va. Civ. R.) implements the requirements for filing documents under seal with the court in accordance with Ashcraft v. Conoco, Inc., 1220 and other Fourth Circuit decisions. 1221

The Eastern District is clear that motions to file documents under seal are "disfavored and discouraged." 1222 Similarly, the movant "must make a good faith effort to redact or seal only as much as necessary to protect legitimate interests" as "[b]lanket sealing of entire briefs, documents, or other papers is rarely appropriate." 1223

Although the rule does not limit the ability of the parties, by agreement, to restrict access to documents which are not filed with the court, an agreement, by itself, is not sufficient justification for allowing a document or other material to be filed under seal. 1224

Under E.D. Va. Civ. R. 5(C), a party seeking to file a document under seal must:

A. File a motion requesting the filing of the document under seal accompanied by a nonconfidential memorandum, a separate nonconfidential notice identifying the motion as a sealing motion, and a nonconfidential proposed order.
1. The motion must be filed "contemporaneously" with the material for which sealing is required.
2. Failure to file a timely motion to seal may result in the document being placed in the public record.
B. The nonconfidential memorandum and the proposed order must include:
1. A nonconfidential description of what is to be sealed;
2. A statement as to why sealing is necessary and why another procedure will not suffice, as well as appropriate evidentiary support for the sealing request;
3. References to governing case law, an analysis of the appropriate standard to be applied for that specific filing, and a description of how that standard has been satisfied; and
4. Unless permanent sealing is sought, a statement as to the period of time the party seeks to have the matter maintained under seal and as to how the matter is to be handled under unsealing. 1225

A confidential memorandum for in camera review may also be submitted. 1226

The nonconfidential notice should inform the recipients that they may submit memoranda in support of or in opposition to the motion to seal within seven days after the filing of the motion. If no objection is filed in a timely manner, the court may treat the motion as uncontested.

Any information designated as confidential in a supporting or opposing memorandum will be treated as sealed pending a determination on the motion to seal.

When a party moves to file material under seal because another party has designated that material as confidential, the party designating the material as confidential must file a response to the motion complying with the requirements for such a motion (except it need not describe what is to be sealed). 1227

4.702 Western District of Virginia.

Rule 9 of the Local General Rules (W.D. Va. Gen. R.) governs the procedures for filing documents under seal in either criminal or civil cases.

Except where otherwise permitted, a document may only be sealed by court order. 1228 For a memorandum opinion denying the parties' joint motion for a protective order placing the parties' confidential settlement agreement and general release permanently under seal, see Appendix 4-1. 1229

Although the rule does not limit the ability of the parties, by agreement, to restrict access to documents that are not filed with the court, any such agreement will be deemed to have incorporated the provisions of W.D. Va. Gen. R. 9. 1230

Unlike its sister court, in the Western District, "[p]ortions of a document cannot be filed or placed under seal—only the entire document may be sealed." 1231

Under W.D. Va. Gen. R. 9(b), a party seeking to file a document under seal must:

A. File an unsealed written motion containing:
1. A generic, nonconfidential identification of the document to be sealed;
2. The bases upon which the party seeks the order, including the reasons why alternatives
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