Sunday, January 11, 2015

Appellate Practice: Filing Documents Under Seal In Appellate Proceedings

By Jessica Dareneau

Failing to ensure that sensitive information is not filed publicly could result in irreparable harm. Despite broad sunshine laws, Florida law protects social security numbers, medical records, trade secrets, and other private and sensitive information. See Fla. R. Jud. Admin. 2.420(c)(9). Before the electronic age, such documents would simply be filed in a sealed envelope. Since the implementation of mandatory electronic filing, however, the written procedures don’t quite mesh with filing realities. Thus, it is critical for the filing attorney to ensure such information is not inadvertently made available to the world for review. Do not wait until the deadline to file your brief because it will likely take some time to ensure that information is filed under seal. 

James Birkhold, clerk of the Second District Court of Appeal, has provided some helpful guidance for attorneys wishing to file documents under seal in the Second District. 

In proceedings involving review of a final order, the lower court clerk prepares the record and is responsible for informing the district court clerk of any sealed information contained in the record pursuant to Rule 2.420(g)(8). Issues for attorneys will mainly arise in the review of non-final orders because the attorney must prepare an appendix. If there is already an order from the lower court sealing the information, then isolate the information you are seeking to seal from the other documents in the appendix. Next, alert the appellate court of the lower court’s order sealing the information. This can be accomplished by selecting the confidential option in the e-portal and then filing the information with a cover letter with bold and large font stating that the document must be sealed. The cover letter should cite to the lower court’s order sealing the information, and the order should be attached. 

If there is not already an order from the lower court sealing the information, then you will need to file a motion with the appellate court under Rule 2.420(g), Florida Rules of Judicial Administration. This rule sets forth strict parameters for sealing information in the court’s file. 

Do not file your sensitive information until the district court has ruled on your motion to seal. If the court grants your motion, a separate appendix should be prepared with the sealed information. If the confidential information is of a nature that the other side should be restricted from accessing it as well, do not electronically file the sealed appendix because it will be electronically served on the opposing party automatically. Clerk Birkhold suggests instead filing a motion in which you request court approval to email the district clerk the confidential portion of the appendix.  

The electronic filing system is evolving and will eventually have a method to replace the traditional sealed envelope method. Until then, it is always best to contact the clerk of the district in which you are filing well before the filing deadline for guidance, as each district will likely have different methods and preferences.