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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. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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