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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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