W.D. Va. Gen. R. 9

The following procedures govern documents under seal in criminal and civil cases in this

Court.

(a) General. A “sealed document” is a document in the form of a pleading, exhibit

or other paper to which access is restricted to the Court and authorized court

personnel. A document may be sealed only by order of the Court, except where

otherwise permitted by law or as set forth in paragraph (c) of this Rule. Portions

of a document cannot be filed or placed under seal—only the entire document

may be sealed. No sealed document may be disclosed except upon order of the

Court.

(b) Procedures for Filing a Sealed Document.

(1) Format. Any sealed document must be tendered to the Clerk and

conspicuously labeled “SEALED.”

(2) Motion to Seal. To obtain a sealing order a party must file an unsealed

written motion containing:

a. a generic, non-confidential identification of the document to be

sealed;

b. the bases upon which the party seeks the order, including the reasons

why alternatives to sealing are inadequate; and

c. the duration for which sealing is requested.

The moving party also must file with the motion a proposed unsealed order

granting the motion and setting forth the bases for the Court’s action. If it

already has not been tendered, the moving party also must tender to the

court, in camera, the document proposed to be sealed. The document will

be kept under seal by the Clerk pending a decision by the Court on the

motion. If the motion to seal is denied, the document will be returned by the

Clerk to the party tendering it, unless the Court orders otherwise.

(3) Public Notice of Motion to Seal or Sealing Order. A motion to seal and

any order to seal must be docketed according to the administrative

procedures of the Court.

(4) Objection to Sealing. Any person or entity, whether a party or not, may

object to a motion to seal a document or may file a motion to unseal a

document previously sealed.

(5) Agreement by Parties. These provisions do not limit the ability of the

parties by agreement to restrict access to documents that are not filed with

the Court. Any agreement calling for the sealing of any document to be filed

with the Court will be deemed to have incorporated the provisions of this

rule.

(6) Extension of Sealing. No order to seal will be extended except upon a

subsequent order of the Court obtained in accordance with this rule.

(7) Sealed Case. No case may be sealed in its entirety except by order of the

Court for cause shown, obtained in accordance with this rule.

(c) Exceptions.

(1) No motion or order is required to file the following under seal:

a. An unredacted version of a pleading, paper, exhibit, a reference list

or other document containing personal data identifiers, in

compliance with these rules, the federal rules of procedure, or the E-

Government Act;

b. An ex parte motion or application where sealing is permitted or

required by law;

c. Presentence investigation reports, pretrial services reports,

psychiatric or psychological evaluations in criminal cases, including

documents incorporating the content of the foregoing documents;

d. Affidavits submitted in support of a motion for in forma pauperis

status;

e. Motions, orders, notices, and other matters occurring before the

grand jury, subject to the provisions of Fed. R. Cr. P. 6;

f. Applications and orders for the disclosure of tax information (26

U.S.C. § 6103);

g. Motions and orders involving the Classified Information Procedures

Act (18 U.S.C. app 3 §§1 – 16) or Foreign Intelligence Surveillance

Act (50 U.S.C. § 1801);

h. Pleadings and documents involving the Juvenile Delinquency Act;

i. Requests and orders for authorization of investigative, expert, or

other services pursuant to the Criminal Justice Act;

j. Other documents required by law to be filed under seal.

(2) No publicly filed motion and order under this rule is required for sealing the

following:

a. Motion by the United States for a downward departure or reduction

of sentence in a criminal case, with leave of court upon a showing

of particular need in an individual case to prevent serious harm;

b. Search, seizure and arrest warrants and affidavits;

(3) A publicly filed motion and order citing only the statutory authority for

sealing is required for the following:

a. Applications and orders for pen/trap devices (18 U.S.C. §2703)

b. Applications and orders for wire, oral, or electronic communication

interception (18 U.S.C. § 2516).

(d) Unsealing. Unless the Court orders otherwise, the Clerk will unseal the following

sealed documents when indicated:

(1) Search Warrant. After the search is executed and the warrant is returned

to the Clerk;

(2) Arrest Warrant, and In a Violation Case, Any Violation Report.

After the arrest is made;

(3) Indictment. Upon the arrest or appearance of a single defendant. In

multi-defendant cases, and unless the court orders otherwise, upon the

earliest of any of the following:

a. 10 days following the arrest of any defendant;

b. 30 days after return of the indictment; or

c. when all defendants have been arrested or summoned.

In criminal cases, each defendant must be provided with a copy of the charges

against that defendant (with other portions redacted, if necessary), even if the

indictment or complaint is otherwise sealed. In multi-defendant cases in which the

indictment is to remain sealed, the government is responsible for submitting to the

magistrate judge for approval, reasonably in advance of the initial appearance, an

appropriately redacted indictment for disclosure to the defendant and to the public.

(4) Criminal Complaint. 30 days after issuance or when all defendants

named are in custody or have been summoned, whichever is the earliest.

(5) As for any other sealed documents, the documents will be unsealed 120

days from the date of entry of the sealing order, unless the sealing order

provides otherwise.

Commentary

This rule describes the procedures in criminal and civil cases relating to sealed documents,

including pleadings, motions, exhibits, and other material. Case law protects generally the right of

public access to documents filed in court, both under the First Amendment and the common law.

See, e.g., Va. Dept of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004).

Questions relating to sealed documents are presented in varying circumstances. For

example, a party to a case may desire to file an exhibit to a brief containing confidential business

information that has been disclosed to the opposing party under an agreement of confidentiality,

but which the parties do not wish the public to see. The procedure to be followed is to file a

motion not under seal that describes in a non-confidential way the document that the party desires

to file under seal (in this hypothetical example, the exhibit). The motion must also state, in a

generic, non-confidential way, the reasons why sealing is requested (in this case, the fact that the

exhibit contains confidential trade secrets whose disclosure would be harmful to the business of

the party) and why alternatives to sealing are inadequate. Finally, the motion must also state the

length of time that the party desires the document to be sealed. The motion must be accompanied

by the document desired to be sealed (the exhibit, in this example) for review by the presiding

judge, as well as a proposed unsealed order allowing the document to be sealed, which order recites

the necessary findings.

Often the parties to a case will enter into a confidentiality agreement that provides that

certain information exchanged between them in the course of discovery will remain confidential.

The procedures described in this rule do not affect the ability of the parties to enter into such an

agreement. However, the parties cannot agree to the sealing of documents filed in court without

following the mandatory procedures set forth in this rule.

In other words, the parties cannot seal documents filed in court merely by agreement or by

labeling them “sealed.”

There are certain exceptions to the rule that any document to be sealed must be

accompanied by an unsealed motion. Where the sealed document is an unredacted version of a

document required to be redacted by these rules, the federal rules of procedure, or the E-

Government Act, or a reference list of personal data identifiers, then no motion or order is required.

Like all sealed documents, however, the unredacted version or the reference list must be clearly

labeled “SEALED.”

The government, a defendant or other party may have a basis for a confidential

communication to the court that is permitted or required by law. There is no need for an unsealed

motion or order in those circumstances, but the motion must be clearly labeled “EX PARTE AND

SEALED.”

This rule provides that unless the Court orders otherwise, all documents in a case will be

unsealed at the conclusion of the case. The rule does not flatly prohibit the continued sealing of

a document, but leaves that decision to the presiding judge. As an alternative, the judge may order

a sealed document in paper form returned to the party submitting it at the conclusion of the case.

If a document is ordered sealed for a particular period of time, the period may be extended by a

later order, obtained by following the procedures set forth.