Sometimes a litigant needs to tell a judge something without it becoming public. It could be that the case involves a trade secret, and filing details about it could ruin the secret. It could be that the case involves sensitive information about someone’s health or private life. Or it could be that the litigant signed a confidentiality agreement, promising to keep the information private.

In those events, courts generally have a procedure to allow a litigant to file a document “under seal” so that the judge can review the document but the public cannot.

Why should you read this post about filing under seal?

You have a good reason but you don’t want to publish it on this website.
You want to file some secret documents to complain about someone else filing secret documents.
You, like most people, enjoy posts about the details of electronic filing.

Image credit: https://en.wikipedia.org/wiki/Pinniped#/media/File:Weddell_seal_swims_underwater_in_McMurdo_Sound_(Image_3).jpg

Documents Are Normally Publicly Available

In federal courts, and in New York State courts, anyone can access court documents through the court websites. Most federal filings are available on PACER and most New York State court litigation documents are available for free on NYSCEF.

Many documents, but far from all, can be found on Google. So when people file a document in a court case, it is usually does not become a top result when people search for a relevant person or the case on a search engine.

Even for courts that do not publish all of their litigation filings online, filings are usually publicly available since their clerk’s office may make them available to anyone who visits and asks for the files.

Moving to File Under Seal

A litigant who wants to file a document under seal must seek the court’s permission to do so. In one federal circuit, the rules require a court deciding to seal a document to:

provide public notice of the request to seal and allow interested parties a reasonable opportunity to object,
consider less drastic alternatives to sealing the documents, and
provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives.

Accordingly a litigant who files a motion to seal should explain the reasons for sealing and explain why no less drastic alternatives are acceptable. The motion may not be granted until an opposition could be heard and considered.

Even after a litigant files documents under seal, another litigant may ask the court to lift the seal, arguing that the need to protect the documents is no longer substantial enough to prevent public access.

Courts are generally reluctant to allow filings under seal, and view requests for filing under seal with some skepticism. They also often welcome efforts to lift seals.

Actually Filing Under Seal

There is usually a complicated technical process for filing documents under seal. The federal court in Seattle has this guide to filing under seal: https://www.wawd.uscourts.gov/sites/wawd/files/Filing_a_Sealed_Document.pdf. Here is the one from the federal court in Chicago: https://www.ilnd.uscourts.gov/_assets/_documents/E-Filing%20Sealed%20Documents.pdf. Here’s the one from the federal court in Manhattan: https://www.nysd.uscourts.gov/sites/default/files/pdf/ecf_training/SDNY%20Sealed%20Filing%20in%20ECF.pdf. And here are instructions from a New York State court: https://www4.erie.gov/clerk/sites/www4.erie.gov.clerk/files/2023-02/erie_protocols.pdf. And individual judges may have their own rules about filing under seal, such as these: https://www.nycourts.gov/LegacyPDFS/courts/comdiv/NY/PDFs/part3-sealing-practices.pdf.

Usually the process involves uploading an unredacted version (a complete version) of a document and identifying it as being submitted under seal, as well as a redacted version (one with excerpts covered up) that will be available publicly but that conceals the confidential portions of the document. The process may also involve submitting explanations for each specific redaction and why it is necessary.

After the submission, a litigant may be required to email or deliver paper copies of the unreacted documents directly to the judge’s office.

This procedure is cumbersome and often litigants skip it, even though they are required to follow it if there is a confidentiality agreement or protective order that requires it. In those situations, an adversary may point out the breach, prompting the litigant to move the court to seal their previous filing.