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Federal Bar Update: Proposed rule changes, redacting documents

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FedBarMaley-sigThe Judicial Conference Advisory Committees on Civil Rules has published proposed amendments to several rules and is seeking public comment. The proposed amendments are posted on the judiciary’s website at www.uscourts.gov in the Rules section. The public comment period is open until Feb. 17, 2015, meaning that Dec. 1, 2015, is the earliest the amendments could take effect.

Most significantly, the proposed amendment to Rule 6(d) would eliminate the provision adding three extra days when service is made by electronic means. The committee notes explain: “Rule 6(d) is amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served. Rule 5(b)(2) was amended in 2001 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.”

The notes further explain, “Diminution of the concerns that prompted the decision to allow the 3 added days for electronic transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow ‘day-of-the-week’ counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday.”

Redactions – The 7th Circuit – and Indiana’s federal judges – take seriously that judicial business is open to the public. This limits litigants’ ability to seal or redact filed documents. Magistrate Judge Mark Dinsmore recently addressed these issues in Eads v. Prudential Ins. Co. of America, 1:13-CV-01209 (S.D. Ind. Aug. 5, 2014).

In Eads, plaintiff moved to amend her complaint attaching documents that the defendant had produced as “confidential” under the court’s protective order; plaintiff simultaneously moved to file those materials under seal. Defendant then also moved to maintain the materials under seal.

At a hearing on the motion to amend, Magistrate Judge Dinsmore instructed defendant to submit the proposed documents with the admonishment to redact as little as necessary. In response to the request, defendant submitted a version of plaintiff’s memorandum with several sentences redacted and submitted two exhibits with the entirety of the content redacted, save the header and footer of each document, assertion that all of the information redacted qualifies as trade secrets. This was not well received by the court.

Magistrate Judge Dinsmore explained, “Upon reviewing motions to permanently seal documents that have been filed with the court, the Seventh Circuit requires that this Court be ‘ever vigilant to keep judicial proceedings public.’ Meharg v. AstraZeneca Pharm. LP, No. 1:08CV184DFH-TAB, 2009 WL 2960761 at *2 (S.D. Ind. Sept. 14, 2009) (citing Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006)). Documents that underpin judicial decisions are presumptively open to public examination. Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). Any action that ‘withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.’ Hicklin Eng’g, L.C., 439 F.3d at 348. Thus, only documents that warrant long-term confidentiality–such as bona fide trade secrets–may be kept under permanent seal, and even then only after weighing the party’s interest in maintaining confidentiality against the public’s interest in access to the information. See Baxter Int’l, Inc., 297 F.3d at 545; Matter of Cont’l Illinois Sec. Litig., 732 F.2d 1302, 1313 (7th Cir. 1984).”

Magistrate Judge Dinsmore then wrote that “the Court’s review discovered that large portions of the redacted content are readily accessible in publications available to any visitor to the U.S. Department of Veterans Affairs website. It is therefore evident that Prudential disregarded the Court’s admonishment to redact as little as possible, and, contrary to the laws of the Seventh Circuit, is seeking to seal a substantial amount of material that is publicly available and could not possibly be a ‘trade secret.’ Id. (citations omitted). Defendant was thus ordered to ‘submit revised proposed redacted exhibits within seven (7) days of the date of this order, this time taking extreme care to redact only proprietary and confidential information that meets the Seventh Circuit standard to maintain under permanent seal. Furthermore, Prudential is advised that over-redaction a second time may result in complete denial of its motion to seal.’” Id. (emphasis in original).

Save the date – The 2014 annual federal civil practice seminar will return Dec. 19; mark your calendars.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.

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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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