Draft in progress: The Need for Uniformity in Filing ESI Under Seal

The District Courts have assigned the subject matter of filing materials with the court under seal to varying Federal Rules of Civil Procedure, with no national uniformity as to which rule applies. Moreover, courts find sealing authority from diverse sources and apply that authority inconsistently. Sealing requirements and procedures vary widely from one court to the next, with some courts imposing expensive, complex, and burdensome requirements to file under seal. This process can be further complicated when the materials to be filed under seal are in electronic form. This Drafting Team will consider the various approaches to filing under seal and prepare a draft Commentary that proposes a uniform set of procedures for the sealing of civil litigation documents and electronically stored information (ESI). Among other things, the draft Commentary should: (i) recommend a consistent process for filing ESI and documents under seal that is supported by existing authority; (ii) provide guidance and best practices to practitioners regarding the need for sealing and the steps required for doing so; and (iii) explore alternative methods of protecting civil litigation documents and ESI without sealing, so as to minimize the burden on the court.