Third Judicial Circuit Court of Michigan Sealing & Redaction Procedures

CRITICALCivil cases

At the opposing party’s request, confidential materials must be destroyed within 60 days after the action, including appeals, concludes, subject to the stated retention exceptions; receiving counsel must provide written verification of destruction upon request.

17. Within sixty (60) days of the conclusion of this action, including any appeals, all originals and reproductions of any materials designated as "Confidential" shall be destroyed at the request of the opposing party; provided however, counsel for the parties may retain one complete set (including exhibits) of pleadings and motion papers filed with the Court, and one complete copy of deposition testimony given in this action, in addition to materials designated as "Confidential" in a secure location - subject to any applicable Statute of Limitations. Upon request, counsel for the receiving party shall provide written verification to the producing party that all copies of such materials produced to the receiving party have been destroyed, other than as indicated in this paragraph. Materials designated as "Confidential" that are in the custody of the Court are excepted from the terms of this paragraph.

CRITICALCivil cases

Counsel must keep confidential materials in a secure location, but may use an ESI vendor or host that limits access to authorized persons.

13. Counsel shall maintain files containing materials designated as "Confidential” in a secure location. This provision shall not prevent use of an ESI vendor or host who restricts access to those persons permitted to review confidential materials as set forth in this Order.

CRITICALCivil cases

Other inadvertently produced privileged materials must be returned promptly when the producing party requests their return.

Any other inadvertently produced privileged materials shall be promptly returned upon the request of the producing party.

CRITICALCivil cases

Confidential material must not be made available to unauthorized persons, including when included in otherwise nonconfidential materials, and must be removed before those materials are shared with them.

11. Materials designated as "Confidential" shall not be made available to persons other than those authorized in paragraphs 9 and 10 above - even if attached to or contained within otherwise non- Confidential materials, such as transcripts, memoranda, discovery responses, or affidavits. The "Confidential" information must be removed before the remaining materials may be made available to those other persons.

CRITICALCivil cases

A party must obtain Court approval on a motion under MCR 8.119(1) before filing under seal or tendering a proposed sealed item to the Clerk.

18. This Order does not authorize or permit the filing of any documents under seal. Pursuant to MCR 8.119, as amended, the parties are not to file documents under seal without prior Court approval. The party seeking to file any paper under seal must file and serve a motion under MCR 8.119(1) that (1) describes each item proposed for sealing; (2) states the reason sealing each item is necessary and identifies the specific interest to be protected; (3) explains why there is no less restrictive means to adequately and effectively protect the specific interest; and (4) includes a memorandum of legal authority supporting the motion. The movant may not file or otherwise tender to the Clerk any item proposed for sealing unless the Court has granted a motion brought under MCR 8.119(1).

CRITICALCivil cases

Before disclosing confidential materials to the specified former employees, experts, or consultants, counsel must provide the order for review and obtain an executed confidentiality agreement; current employees must be advised of the order but need not sign the agreement.

12. Materials designated as "Confidential” shall not be disclosed by opposing counsel to a former employee of Plaintiff or Defendant, respectively, or to a testifying or non-testifying expert or consultant under paragraphs 9 and 10 unless and until such representative, expert, or consultant has first been supplied with and has read a copy of this Order and has executed a copy Of the Confidentiality Agreement attached as Exhibit A. Current employees of Plaintiff and Defendant are not required to execute a copy of the Confidentiality Agreement, but must be advised regarding the provisions of this Protective Order.

CRITICALCivil cases

14. No documents, information, or things designated as "Confidential," including that contained in pleadings, motions, briefs, declarations, or exhibits (except in sealed envelopes) shall be filed with the Court.

14. No documents, information, or things designated as "Confidential," including that contained in pleadings, motions, briefs, declarations, or exhibits (except in sealed envelopes) shall be filed with the Court.

CRITICALCivil cases

To the extent practical, only portions of a court filing containing confidential material should be sealed or submitted for in camera inspection.

To the extent practical, only those portions of a filing with the Court that contain material designated as "Confidential" shall be filed under seal (as provided in paragraph 18) or provided to the Court for in camera inspection.

CRITICALCivil cases

Inadvertently produced facially privileged or work-product materials must be returned promptly when discovered.

Any and all facially privileged or work product materials inadvertently produced shall be returned promptly, when discovered, in accordance with ABA Rules of Professional Conduct Formal Opinion 92-368 (1992).

CRITICALCivil cases

If a party is served with process seeking another party’s confidential materials, its counsel must immediately give the designating party’s counsel written notice.

16. If either party is served with a subpoena or similar process, from any person or entity whatsoever, directing that party to produce any materials designated as "Confidential" by another party, counsel for that party shall immediately give counsel for the designating party written notice of such service so that the designating party may seek a protective order or otherwise act to protect the confidentiality of the designated materials.

CRITICALCivil cases

Confidential materials may be made available only to court staff, counsel and their case staff, and the listed persons or persons authorized by consent or court order.

10. All documents, information, or things designated as "Confidential" shall be made available only to the Court's staff and to counsel for the parties (including the paralegal, clerical, and secretarial staff employed by such counsel in connection with this case) and the following persons: a. The parties and those agents and employees that are directly involved in the prosecution or defense of this matter; b. experts or consultants (together with their clerical staff) retained by the respective parties to assist in this case; c. any court reporter employed in this case; d. a witness at any deposition or other proceeding in this case; e. a potential witness; and f. any other person with the written consent of the parties (and any affected non-party by producing party) or upon order of the Court.

WARNINGCivil cases

A non-producing party may designate deposition material as confidential using the same procedure available to a producing party.

A non-producing party may designate documents, information, or things disclosed at a deposition as "Confidential” in the same manner as a producing party.

WARNINGCivil cases

When previously disclosed discovery material is later designated confidential, the disclosing party must make good-faith efforts to preserve its confidential status and obtain compliance from recipients.

If discovery material has been disclosed and is subsequently designated as "Confidential," the disclosing party shall make good faith efforts to preserve the “Confidential" nature of such discovery material and to obtain compliance with this Order from any person to whom such discovery material was disclosed.

WARNINGCivil cases

Deposition transcripts and exhibits are deemed confidential for 30 days after receipt of the deposition transcript.

All deposition transcripts and exhibits will be deemed Confidential for a period of 30 days after the receipt of the deposition transcript.

WARNINGCivil cases

A party may redact discovery information that is irrelevant and would give the opposing party a business advantage if produced, and the opposing party may challenge the redactions before the Court.

d. Redacting information from documents produced in accordance with the discovery process, including information is irrelevant to this action and would provide the opposing party with a business advantage over the producing party if it is produced. Nothing in this sub- section limits the opposing party from challenging such redactions before this Court.

WARNINGCivil cases

The party asserting a confidential designation bears the burden of proving good cause for an order.

The party claiming the "Confidential" designation shall have the burden of proving good cause for the entry of an order

WARNINGCivil cases

A producing party may designate material as confidential if it determines in good faith that the material contains confidential or proprietary information.

Any document, information, or thing may be designated "Confidential" if the producing party determines in good faith that it contains confidential or proprietary information.

WARNINGCivil cases

Anyone not authorized to receive confidential information must be excluded from the portion of a deposition in which that information is discussed.

Further, during the period in which such "Confidential” information is discussed during the deposition, any person present during the deposition who is not authorized to receive such information under Paragraph 10 below shall be excluded from that portion of the deposition.

WARNINGCivil cases

A non-producing party may designate previously undesignated material as confidential by notifying all parties in writing and identifying the specific item.

A non-producing party may also designate any document, information, or things produced during the course of this proceeding, not already designated “Confidential" as "Confidential" as if it were a producing party. The non-producing party shall accomplish such designation by notifying all parties in writing of the specific item so designated.

WARNINGCivil cases

A party intending to use or offer confidential materials at trial must inform the producing party reasonably in advance, unless the Court orders otherwise.

c. Disclosing or using, in any manner or for any purpose, any information, document, or thing at the trial of this matter. But if a party intends to use or offer into evidence at such trial any materials designated as "Confidential," that party must, unless otherwise ordered by the Court, so inform the producing party in a reasonable time in advance to allow the producing party to take such steps that it deems reasonably necessary to preserve the confidentiality of such information or documents.

WARNINGCivil cases

A producing party that discovers an inadvertently unmarked document must notify the receiving party promptly and within 30 days, after which the receiving party must return it for replacement with a properly marked document.

If a party producing documents inadvertently fails to mark a document as "Confidential” for which it desires such treatment, it shall so inform the party receiving the documents forthwith, but in no event later than thirty (30) days following discovery of the inadvertent disclosure. The receiving party thereupon shall return the unmarked documents to the producing party and the producing party shall substitute properly marked documents.

WARNINGCivil cases

An inadvertent disclosure does not waive confidentiality if the producing party promptly notifies receiving parties and in all events does so within 30 days after learning of the disclosure.

The inadvertent or unintentional disclosure by a producing party supplying confidential discovery material, regardless of whether such discovery material was designated as "Confidential," shall not be deemed a waiver in whole or in part of the producing party's claim of confidentiality with respect to the discovery material disclosed, provided that the producing party making such inadvertent or unintentional disclosure notifies the receiving parties forthwith, but in no event later than thirty (30) days after it learns of such inadvertent or unintentional disclosure.

WARNINGCivil cases

Deposition material may be designated confidential on the record or by written notice within 30 days after receipt of the transcript, identifying the item or transcript lines and pages.

A producing party may designate documents, information, or things disclosed at a deposition as "Confidential” on the record during the deposition or, within 30 days of receiving the deposition transcript, by notifying all parties in writing of the specific item so designated or the lines and pages of the transcript that are "Confidential."

WARNINGCivil cases

If material is filed with the Court before notice of its inadvertent undesignated disclosure, the producing party is responsible for seeking appropriate relief from the Court.

If a producing party, at the time of disclosure, inadvertently fails to identify as "Confidential " any discovery material (including, without limitation, documents, oral, visual, or recorded information) for which it desires such treatment, and another party files the material with the Court prior to receiving notice that such material was in advertently disclosed without the desired designation, the producing party who made the inadvertent disclosure shall be responsible for seeking appropriate relief from the Court.

WARNINGCivil cases

The Order remains in effect after the action and appeals, but use restrictions end for Confidential materials used as trial exhibits unless those exhibits were used under seal or under a protective order at trial.

20. The terms of this Order shall remain in effect after the action and any related appeals are concluded, except that there shall no longer be any restriction on use of materials designated as "Confidential" that are used as exhibits at trial (unless such exhibits were used under seal or protective order at trial).

INFOCivil cases

Parties may generally refer to confidential-designated documents in court filings without sealing those filings, provided no confidential information is disclosed.

Provided that no "Confidential” information is disclosed, the parties may generally refer to documents designated as "Confidential" in pleadings, motions, briefs, affidavits, or exhibits filed with the Court, without filing such pleadings, motions, briefs, affidavits, or exhibits under seal.

INFOCivil cases

A party or its attorneys may show confidential materials to a person who prepared or reviewed the document or is shown to have received it.

a. Showing materials designated as "Confidential" to an individual who either prepared or reviewed the document, or is shown by the document to have received the document.

INFOCivil cases

A party or its attorneys may disclose or use confidential-designated information from that party’s own files for any purpose.

b. Disclosing or using, in any manner or for any purpose, any information, documents, or things from the party’s own files that the party itself designated as "Confidential."