Judge Kinkeade Orders More Stringent Steps for Filing Under Seal
Increased Showing Required to File Under Seal in Judge Kinkeade’s Court
On November 20, 2023, Judge Kinkeade of the United States District Court for the Northern District of Texas, Dallas Division, entered an order setting forth additional requirements for parties to file documents under seal his court.
According to the order:
This Order governs requests to file materials in this case under seal. The Fifth Circuit has recently addressed in great depth an increasing trend of courts “sealing documents in run-of-the-mill cases where the parties simply prefer to keep things under wraps.” Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th Cir. 2021); see also June Med. Servs., L.L.C. v. Phillips, 22 F.4th 512 (5th Cir. 2022). The Fifth Circuit reaffirmed that “[t]he public’s right of access to judicial proceedings is fundamental.” Le, 990 F.3d at 418; see id. at 421 (“Legal arguments, and the documents underlying them, belong in the public domain. American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense.”). Thus, courts must be “ungenerous with their discretion to seal judicial records” and remain mindful that “the working presumption is that judicial records should not be sealed.” Id. at 418–19. It is an abuse of discretion where the court makes “‘no mention of the presumption in favor of the public’s access to judicial records’ and fails to ‘articulate any reasons that would support sealing.’” Id. at 419 (quoting SEC v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993)).
Duringthe discovery stage, the parties may agree to designate documents as confidential. Rule 26(c) of the Federal Rules of Civil Procedure permits a court to issue a protective order “for good cause” which may be used by the parties to govern the exchange of information at the discovery stage. Fed. R. Civ. P. 26(c). However, the fact that a protective order governs the designation of documents as “confidential” during discovery does not automatically permit the parties to then file those documents under seal with the Court. “At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper. Party- agreed secrecy has its place—for example, honoring legitimate privacy interests and facilitating the efficient exchange of information. But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous.” Le, 990 F.3d at 420.
These requirements no doubt increase the burden of filing under seal and likely will result in less of these type of filings. Download the full order here.
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