How to Avoid Annoying Your Judge with Your Sealing Requests

Lawyering requires care and attention to detail. No less an authority than Daniel Webster explained, “If he would be a great lawyer, he must first consent to become a great drudge.”

A lawyer who comes to court and asks a judge to do something for his client has a professional obligation to take time to think carefully and in granular detail about the relief that he’s requesting to make sure it’s warranted. In addition, the lawyer should do his level best to make the judge’s life as easy as possible. Make exhibits accessible. Prepare them in a way that makes sense. Review and comply with the judge’s procedures. Don’t do things that shift work from lawyer to judge. In short, think about a submission as a whole—whether it enables the judge to address it or whether it interferes with those efforts, and whether it conveys to the judge that a lawyer gave its preparation due care.

The lawyers in this case have fallen short of those obligations in connection with their submissions of summary judgment motions, a supporting statement of facts and exhibits, and a related motion to seal. They do not identify the specific documents they seek to seal or even which documents fall into the categories of information they seek to seal. They propose to seal categories of documents for which there could be no possible basis to seal. And they submitted a summary judgment record that is unnecessarily difficult for me to parse because they have submitted exhibits that are at the same time duplicative and needlessly disjointed.

The fact that these problems arise in the context of a motion to seal is, unfortunately, no surprise. Too often, lawyers treat those motions as an afterthought. The result is a submission that lacks detail about the reasons for sealing and the specific harm that would arise from disclosure of any particular piece of information.

Those failures leave me, as the steward of the public’s interest in access to judicial records, to do work that the lawyers should have done to justify whether a document belongs under seal. That’s what has happened in this case. It shouldn’t be my job to do the lawyers’ work for them, and so this opinion will call out the multitude of ways that the lawyers in this case have fallen short in their submissions.

[A.] Summary Judgment Exhibits

The Parties’ submission of summary judgment exhibits illustrates their lack of care in their filings. As I noted, they submitted exhibits that overlap, that duplicate each other, and that unnecessarily segment a single transcript into multiple exhibits. This is as inefficient as it is confounding. It made the process of reviewing the exhibits to assess sealing challenging. And it would make the process of assessing summary judgment even harder than it has to be.

I won’t let the Parties foist extra work on my clerks (who bear the brunt of this) and me. Instead, I will require the Parties to resubmit their exhibits in a way that makes more sense and is more efficient, eliminating any duplication or unnecessary segmentation of exhibits. And I will require them to provide me with an updated SOF that cites to the corrected exhibits.

[B.] Sealing

There are a litany of problems with the Parties’ sealing requests, some categorical and others document-specific. I could just deny the request as a whole, given the problems. However, given the interests at stake (third-party privacy and prison security), I have reviewed the documents and arguments to try to determine what, if anything, belongs under seal.

1. Threshold issues

Before I address specific categories of documents that the Parties propose to redact or seal, I will address several threshold issues that pervade their motion. First, consistent with Federal Rule Of Civil Procedure 5.2(a), the Court’s Local Rules Of Civil Procedure require that “[p]ersonal identifiers such as Social Security numbers, dates of birth, financial account numbers, and names of minor children must be modified or partially redacted in all documents filed either in paper or electronic form[.]” Thus, the Parties can—and must—redact such information wherever it appears in their filings.

The Parties’ decision to include this category of information in their sealing motion demonstrates that they didn’t review the Local Rules. And the result of that failure is argument that I had to review unnecessarily. I note, however, that unless I need this PII for purposes of my ruling, the better practice is to redact it from all court filings, rather than to submit unredacted versions to me (or another judge) under seal.

Second, the fact that the Parties agree that I should seal all or part of certain judicial records is not a sufficient reason to shield those records from public view…. And in situations like this one, where there is no opposition to a sealing request, judges become “the primary representative[s] of the public interest in the judicial process[.]” …

Third, and relatedly, the Parties’ designation of materials as “confidential” or “attorneys’ eyes only” during discovery does not control whether anyone has satisfied the burden of demonstrating that I should seal those documents once they become judicial records on the docket.

Indeed, the governing Discovery Confidentiality Agreement And Order recognizes this distinction and requires the parties to seek leave from me in order to file designated material under seal. If designating a document “confidential” were a sufficient basis to seal judicial records, then this paragraph would be meaningless. As I’ve explained before, “[p]arties routinely over-designate materials as ‘confidential’ in discovery, and there’s not a judicial check on [those] designations.” While agreed-upon secrecy may be appropriate during discovery, “at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous.”

2. Categories of documents

In this case, the Parties did not even try to meet Avandia’s more rigorous standard for sealing. [Avandia is a Third Circuit precedent on sealing. -EV] Nevertheless, given the legitimate security and privacy concerns at issue, I will permit the Parties to seal some of the information they have identified. Yet even for categories where sealing is appropriate, the Parties’ submission suffers from a lack of detail that makes it impossible for me to make a final determination as to their arguments….

[For more details, read the opinion, but here’s an excerpt: -EV] The Parties seek to seal or redact a mish-mash of other materials that do not fall into any specific category. Rather than attempt to satisfy the two prongs of the Avandia inquiry, the Parties seem to rely on the fact that they designated this material as “confidential” or “attorney’s eyes only” during discovery, which I’ve already explained is not good enough.

In fact, some of these proposed designations are mystifying, and they demonstrate how little meaningful thought the Parties put into their sealing request. For example, the Parties seek to redact Mr. Boccella’s name on Mr. Funkhouser’s cellmate history. There is no scenario where this proposed redaction would make sense in this case. The very first page of the Estate’s Second Amended Complaint states that “[Mr.] Funkhouser was placed in a cell with inmate Shad Murray Boccella,” and the pleading goes on to detail Mr. Funkhouser’s murder by Mr. Boccella.

The fact that I had to review this proposed redaction as part of my document-by-document review is a waste of scarce judicial time. Similarly, the Parties propose to redact the County Report of Serious Incidents form relating to Mr. Funkhouser’s murder. Again, I cannot conceive of any valid reason to seal this document given the numerous references to this incident on the public docket since March 13, 2024. These requests aren’t just problematic in their own right. They call into question my ability to rely on the Parties’ submissions more broadly because I know they aren’t applying any meaningful rigor….

The Parties have [also] sought to redact the vast majority of the SOF [Statement of Facts], which includes 187 paragraphs, spans 51 pages, and references 175 exhibits. This is, once again, an unserious effort to propose narrowly tailored redactions. Parties who ask the Court to keep information from the public must do far more, and it is not my job to craft arguments for them. If a paragraph references material that I have permitted the Parties to redact or to file under seal, then they may redact that reference in the SOF. But I remind the Parties that this is a case involving public facilities and a matter of public concern. Redactions should be the exception, not the rule….