Summary. Two different questions, two different standards, one checklist.

Phase 0 — The distinction

  • Private between the parties? Rule 26(c) good cause. Permissive. Usually stipulated.
  • Out of the public record once filed? The public right of access. Demanding. Not waivable by agreement.
  • Confirm everyone on the team understands that a designation does not entitle a party to file under seal.

Phase 1 — Negotiating the order

Tiers

  • Confidential — outside and in-house counsel, experts, employees with need to know
  • Highly Confidential / AEO — outside counsel and experts only
  • Source Code, if applicable — standalone machine, logged, printing limits
  • Custom tier for named individuals, if AEO would prevent the case from being litigated
  • Do not create tiers you do not need

Terms that matter

  • Whether in-house counsel may see Confidential material; competitive-decision-making analysis
  • Challenge procedure — burden on the DESIGNATING party
  • Challenge timeline and status of material pending resolution
  • Expert disclosure: identification required? objection rights? grounds?
  • Prosecution bar — scope, duration, barred activities; confirm it does not disqualify the client's regular counsel
  • Third-party designation rights and notice before filing or use
  • Source code procedures in detail
  • Express statement that designation does not permit sealing
  • Government or grand jury demands: notice and opportunity to object
  • Survival after final disposition; court retains jurisdiction
  • Return or destruction period with certification

Separately

  • Obtain a Rule 502(d) order — a clawback agreement between the parties does not protect against waiver as to non-parties or in other proceedings
  • The order should state that disclosure does not waive privilege in any proceeding, regardless of the care exercised

Phase 2 — Designating

  • Sample and categorize before bulk designation
  • No designation for anything already public
  • Confidential for non-public business information
  • AEO only where disclosure to a competitor's business personnel causes harm no order can undo
  • Log designations
  • Calendar the deposition designation window — the default protection expires
  • Do not rely on late designation as a strategy
  • Assign one owner for designation decisions

Credibility test: could you defend this designation document by document if challenged? If not, do not make it.

Phase 3 — Challenging over-designation

  • Sample 150–250 documents across custodians and date ranges
  • Categorize: already public / routine internal / historical financial / current competitive / genuinely sensitive
  • Send a letter with the categorization; challenge the plainly over-designated categories
  • Ask the producing party to re-review the production applying the same categories
  • Do not allege bad faith; offer a path cheaper than defending designations
  • If unresolved, move under the order's procedure with the burden on the designating party
  • Reserve the fight for the documents that matter — then consider a custom access tier rather than winning

Phase 4 — Planning filings

  • Before drafting a dispositive motion, decide what must actually be filed
  • Can the argument be made without the most sensitive exhibits?
  • Understand the escalating standard:
Accompanying Typical showing
Nothing — discovery only No access right
Non-dispositive discovery motion Good cause, in many circuits
Dispositive motion Compelling reasons
Trial exhibits Strongest presumption
  • Read the local rule on sealing and the judge's standing order before the deadline
  • Confirm the mechanics: conditional filing, lodging, deadline for the public redacted version
  • Confirm whether the designating party must support the seal

Phase 5 — The sealing motion

  • Read the exhibits. Identify those designated in error.
  • Document-by-document table: exhibit, description, information warranting protection, specific harm, relief sought
  • Declaration from a business person, not counsel — why the information is valuable, how it is protected internally, what a competitor could do with it
  • Proposed redacted public versions attached
  • Full sealing requested only where redaction is inadequate
  • Acknowledge the applicable standard expressly
  • Concede the exhibits that should not have been designated and file them publicly
  • Notify any third party whose material is at issue and let them support their own designations
  • Keep the argument short — the table does the work

Routinely sealed: trade secrets under 18 U.S.C. § 1839; current non-public financial data; personally identifying information; third-party material; statutorily protected material.

Routinely refused: merely embarrassing information; historical financials; material disclosed elsewhere; settlement terms presented for approval; anything designated without articulated reason.

Phase 6 — Redaction

  • Redact in the source document, then convert — do not draw boxes over text
  • Search the redacted file for the redacted terms to confirm removal
  • Check metadata, comments, tracked changes, hidden rows and columns
  • Second-reader check by someone who did not do the redaction
  • Download the filed version from the docket and verify
  • For any significant set, use a vendor with quality control

A redaction failure is not fixable. Once indexed, it is public.

Phase 7 — Third-party material

  • Check the underlying confidentiality agreement for notice obligations
  • Give notice promptly and in writing, with time to act
  • Do not designate on a third party's behalf without authority
  • Before filing or using third-party designated material, give the required notice
  • Confirm the order permits non-parties to designate and gives them standing to object
  • For a subpoenaed non-party: negotiate designation rights and notice before producing

Phase 8 — Trial

  • Raise confidentiality at the pretrial conference, not on the morning of trial
  • Prepare redacted versions of every exhibit expected to be offered
  • Consider summary exhibits with underlying detail unpublished
  • Consider sealed exhibits admitted but not published
  • Courtroom closure requires the demanding Press-Enterprise showing — essential to preserve higher values, narrowly tailored
  • Prepare witnesses on what may be said in open court
  • Expect a media intervenor if the pretrial record was heavily sealed
  • Decide in advance what evidence is too sensitive to offer

Phase 9 — The access log

Maintain continuously:

Person Role Entity Tier authorized Undertaking signed Date Material received Returned/destroyed
  • Every lawyer, paralegal, expert, consultant, vendor, and party employee
  • Signed undertakings retained
  • Experts tracked against disclosure obligations
  • Departing personnel briefed on what they may not take

Phase 10 — Enforcement

  • Meet and confer first — most violations are inadvertent
  • Motion to enforce for material violations: return, destruction, prohibition on use
  • Sanctions available under Rule 37 and the court's inherent authority
  • Disqualification only where information cannot be unlearned
  • Document the disclosure, its scope, and the specific harm

Phase 11 — Disposal

  • Calendar the deadline at final disposition — this is routinely missed
  • Identify every holder: firms, experts, vendors, translation and copy services, the client
  • Obtain certifications in the form the order requires
  • Note retention exceptions: archival set, pleadings, litigation holds in other matters

Phase 12 — Unsealing defense

  • Obtain and read the documents at issue
  • Reassess honestly; concede what is no longer sensitive
  • Build the business declaration you should have built originally
  • Offer targeted redaction
  • Address the passage of time — why is it still sensitive?
  • Notify third parties whose material is involved
  • Prevention: support the original motion properly; a stipulated seal is fragile

Related documents