To Seal or Not to Seal, What is a Party Opposing a Motion to Seal to Do?

All documents filed in a court proceeding in the U.S. District Court for the Western District of Washington (and most places) are available to the public—unless filed under seal. In the Western District, a party can file a document under seal only: (a) where a statute, rule, or prior court order expressly authorizes it or (b) if the party filing the document under seal files a motion to seal (which the court may or may not grant) either before or simultaneously with filing the document(s) to be sealed.[1] In other words, this means that getting a filing sealed requires a motion in most instances.

But what happens when both parties have a copy of the same document, and one wants to file it while the other says it is confidential and must be filed under seal? For instance, in opposing a motion for a preliminary injunction in a noncompete case, the former employee may wish to refer to or submit customer lists or other customer information, which she contends is public information. The former employer, on the other hand, may take the position that the material is confidential and must be filed under seal. Alternatively, the former employer may have already filed the material under seal, with an accompanying motion to seal, while the former employee is in possession of the same information and wishes to use it in response.

Unless a protective order has been entered addressing the situation (unlikely at the preliminary injunction stage), there is no court rule preventing the former employee in the situation described above from publicly filing the very material that the employer maintains is confidential. But disregarding an opponent’s claim that it will suffer harm as a result of public disclosure risks not only negative repercussions with the opponent and the court but potential liability—for instance, if the information is eventually deemed to be a trade secret or the disclosure is deemed to violate a confidentiality agreement. Even if the filed material is subsequently ordered sealed, it has been exposed to the public in the meantime, and the damage may have been done.

One alternative would be to avoid the need to disclose the information by developing creative ways to refer to the allegedly confidential material without actually revealing its contents. But limiting a discussion with veiled references to the sealed material could greatly impair its persuasiveness.

The other alternative for the former employee is to file the material under seal. And this requires filing a motion to seal—i.e., for the very relief the former employee opposes. Local Rule 5(g)(3) addresses this situation in part. Where the parties have already entered into a protective order, the rule allows a party that wants to file a document designated by the other party as confidential to file a motion to seal without having to provide legal authority or argument in support of sealing. The party who designated the material as confidential must then provide the reasons for sealing in its response to the motion.

But Local Rule 5(g)(3) does not address situations where the parties have not entered into a protective order. Thus, there remain instances, such as the example above, where a party who does not think a document is confidential must either advocate for filing it under seal anyway or effectively take the law into its own hands by filing the material unsealed.

Amending the rule to allow burden-shifting even absent a protective order could cure this problem. Using the example above, if the former employer had already filed the material and a motion to seal, the rule could allow the former employee to file the same or similar material under seal without a separate motion. If the former employee wanted to file allegedly confidential material herself, the rule could require a motion by the former employee but require the former employer to justify sealing in its response, as the current rule does in cases where there is already a protective order in place.

Until then, this remains something that the parties must muddle through. As always, the best and safest approach often will be to try to coordinate these issues in advance with opposing counsel.

–Sarah Gohmann Bigelow