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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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