Procedures for Filing Redacted or Sealed Confidential or Highly Sensitive Documents

Revised: 
Tuesday, May 28, 2024

United States Bankruptcy Court for the Northern District of California

Procedures for Filing Redacted or Sealed Confidential or Highly Sensitive Documents

(Effective February 7, 2022, updated May 28, 2024)

General Instructions

Sealing or redacting filed documents is disfavored under the law and by this court. See 11 U.S.C. § 107. No document may be filed in redacted form or filed under seal and made part of the record except pursuant to court order. Accordingly, any request to file a redacted document or to file a document under seal must satisfactorily explain why the court should disregard well-established law and its long-standing policy of open access to the public record.

Parties opposing a request to file a redacted document or to file a document under seal should respond as soon as possible, as the court typically will act promptly and without a hearing on any motion filed pursuant to these Procedures.

These Procedures address the filing in redacted form and filing under seal of two categories of information or documents: (1) Highly Sensitive Documents (“HSD”); and (2) Confidential Documents. The procedures applicable to HSD do not apply to Confidential Documents and vice versa.

I. Highly Sensitive Documents

HSDs are a narrow subset of sealed documents that must, for their protection, be stored offline.  HSDs will be accepted for filing in paper format only, and no HSD should be submitted for filing by any means other than in paper format and as set forth in these Procedures.

HSD are defined very narrowly, and include a document or other material that contains sensitive, but unclassified, information that warrants exceptional handling and storage procedures to prevent significant consequences that could result if such information were obtained or disclosed in an unauthorized way.  Although frequently related to law enforcement materials, especially sensitive information in a civil case could also qualify for HSD treatment. 

Examples include ex parte sealed filings relating to: national security investigations, cyber investigations, and especially sensitive public corruption investigations; and documents containing a highly exploitable trade secret, financial information, or computer source code belonging to a private entity, the disclosure of which could have significant national or international repercussions.

Most materials currently filed under seal do not meet the definition of an HSD and do not merit the heightened protections afforded to HSDs.  The form or nature of the document, by itself, does not determine whether HSD treatment is warranted.  Instead, the focus is on the severity of the consequences for the parties or the public should the document be accessed without authorization.

Designating a document as HSD may be requested by a party in a bankruptcy matter.  HSDs vary in their physical form and characteristics.  They may be paper, electronic, audiovisual, microform, or other media.  The term "document" includes all recorded information, regardless of its physical form or characteristics.  An opinion or order entered by the court related to an HSD may itself constitute an HSD, if it reveals sensitive information in the HSD.  An HSD in the lower court's record will ordinarily be also regarded by an appellate court as an HSD.

HSD do not include personal or financial information, such as tax returns, account numbers, Social Security numbers, addresses, or other information typically included in schedules, a statement of financial affairs, or other documents required by Bankruptcy Rule 1007 and/or Bankruptcy Code section 521. Such information might be appropriate for treatment as confidential, but it is not considered highly sensitive for purposes of these Procedures.

The onus is on the party, including the Department of Justice and other law enforcement agencies, to identify for the court those documents that the party believes qualify as HSDs and the basis for that belief.  In moving for HSD treatment, the filing party must articulate why HSD treatment is warranted, including, as appropriate: the contents of the document; the nature of the investigation or litigation; and the potential consequences to the parties, the public, or national interests, in the event the information contained in the document is accessed or disseminated without authorization.

A. Preparation and Transmission of HSD and Related Pleadings

When an HSD is filed at the initiation of a case or adversary proceeding or in a pending case or adversary proceeding, the filer must provide the court an unredacted (or sealed) version of the HSD, and also a redacted version of the HSD.

(1) Submitting an Unredacted HSD - An unredacted HSD and any unredacted related pleadings must be prepared and submitted only in paper format.

To submit, place the unredacted HSD and unredacted related pleadings inside a single, sealed container (e.g., an envelope or box). Write or type the case name and number on the exterior of the container, along with “HIGHLY SENSITIVE DOCUMENTS”. Place that container inside a second, larger container, seal the larger container and deliver it to the court. The second, outer container should be addressed to the assigned judge, so that court staff may deliver the enclosed materials without opening either container.

The court strongly encourages parties to deliver the unredacted sealed HSD and related material via messenger or personal delivery. 

(2) Filing a Redacted HSD - A redacted HSD and any redacted related pleadings must be filed using CM/ECF (if the litigant is a Registered Participant) or in person at the San Francisco, San Jose, or Oakland Clerk's Office Intake Counter during business hours, by mail, or drop-box (if the litigant is not a Registered Participant).  Mailing addresses and drop-box availability is stated on each division's location page.

B. Filing HSD in or with an Initiating Pleading

For purposes of these Procedures, an “Initiating Pleading” is one that commences an adversary proceeding or a case such as, for example, a complaint or petition for relief.

(1) A litigant seeking protection for HSD submitted with or referred to in an Initiating Pleading must submit a “Certificate for Protection of Highly Sensitive Document” (a “Certificate”).  The Certificate must explain why the HSD meets the definition set forth above. The HSD must be attached to the Certificate.

(2) An unredacted version of the Certificate, attached unredacted HSD and any unredacted related pleadings must be prepared and submitted in accordance with § I. A. (1) Submitting an Unredacted HSD, of these Procedures.

(3) A redacted version of the Certificate, attached redacted HSD and any redacted related pleadings must be filed in accordance with § I. A. (2) Filing a Redacted HSD, of these Procedures, and also must be properly served on all necessary parties.

(4) The assigned judge (or, if the assigned judge is not available, the chief judge or a judge authorized by the chief judge) will review the unredacted (sealed) Certificate, attached HSD and related pleadings, and determine whether the designated materials constitute HSD.

In making this determination, the presiding judge may consider properly articulated concerns that the unauthorized access or disclosure of the information contained in the document at issue would result in significant adverse consequences that outweigh the administrative burden of handling the document as an HSD.

As a general matter, the presiding judge may give careful and appropriate consideration to the concerns articulated by the executive branch in matters implicating the authority of the executive branch to oversee the military and safeguard national security.  If relevant, the presiding judge has the discretion to consider the impact of the heightened protection provided by offline placement to any other party's right of access.

The fact that a document may contain sensitive, proprietary, confidential, personally identifying, or financial information about an entity or an individual, that may justify sealing of the document or case, does not alone qualify the document as an HSD.

(a) If the presiding judge rules that the designated materials constitute HSD, the presiding judge will enter an order to that effect. The unredacted Certificate and its accompanying unredacted materials (including the HSD) become part of the official record, and will be securely maintained by the court in hard copy, in accordance with these Procedures.

(b) If the presiding judge rules that the designated materials do not constitute HSD, the presiding judge will enter an order to that effect. The unredacted Certificate and its accompanying unredacted materials will not become part of the official record, but will be securely maintained by the court in hard copy, in accordance with these Procedures. If the litigant wishes to introduce into the public record the material that the court declined to protect as HSD, it will need to do so pursuant to a separately filed motion, declaration, request for judicial notice, or other appropriate pleading, including a motion filed in accordance with § II. Sealing or Redacting Confidential Materials or Documents, of these Procedures (below).

(c) If the presiding judge rules that some, but not all, of the designated materials constitute HSD, the presiding judge will enter an order to that effect. To the extent the unredacted Certificate and its accompanying unredacted materials include HSD, they will become part of the official record. The court will securely maintain the entire unredacted Certificate and its accompanying unredacted materials in hard copy, in accordance with these Procedures. If the litigant wishes to introduce into the public record the material or documents that the court declined to protect as HSD, it will need to do so pursuant to a separately filed motion, declaration, request for judicial notice, or other appropriate pleading, including a motion filed in accordance with § II. Sealing or Redacting Confidential Materials or Documents, of these Procedures (below).

C. Filing HSD in a Pending Case or Proceeding

(1) A party seeking designation of HSD to be filed in a pending case or proceeding must first file a “Motion for Protection of Highly Sensitive Document” (the “Motion”). The HSD should be submitted with the Motion, which must explain why the HSD meets the definition set forth in these Procedures.

(2) An unredacted version of the Motion, accompanying unredacted HSD and any unredacted related pleadings must be prepared and submitted in accordance with § I. A. (1) Submitting an Unredacted HSD, of these Procedures.

(3) A redacted version of the Motion, accompanying redacted HSD and any redacted related pleadings must be filed in accordance with § I. A. (2) Filing a Redacted HSD, of these Procedures, and also must be properly served on all necessary parties.

(4) The assigned judge (or, if the assigned judge is not available, the chief judge or a judge authorized by the chief judge) will review the unredacted (sealed) Motion, accompanying HSD and related pleadings, and rule on the Motion.

(a) If the Motion is granted, the presiding judge will enter an order to that effect. The unredacted Motion and its accompanying unredacted materials (including the HSD) become part of the official record, and will be securely maintained by the court in hard copy, in accordance with these Procedures.

(b) If the Motion is denied, the presiding judge will enter an order to that effect. The unredacted Motion and its accompanying unredacted materials will not become part of the official record, but will be securely maintained by the court in hard copy, in accordance with these Procedures. If the movant wishes to introduce into the public record the material that the court declined to protect as HSD, it will need to do so pursuant to a separately filed motion, declaration, request for judicial notice, or other appropriate pleading, including a motion filed in accordance with § II. Sealing or Redacting Confidential Materials or Documents, of these Procedures (below).

(c) If the Motion is granted in part and denied in part, the presiding judge will enter an order to that effect. To the extent the unredacted Motion and its accompanying materials include HSD, they will become part of the official record. The court will securely maintain the entire unredacted Motion and its accompanying unredacted materials in hard copy, in accordance with these Procedures. If the movant wishes to introduce into the public record the material that the court declined to protect as HSD, it will need to do so pursuant to a separately filed motion, declaration, request for judicial notice, or other appropriate pleading, including a motion filed in accordance with § II. Sealing or Redacting Confidential Materials or Documents, of these Procedures (below).

D. Designating Previously Filed Documents as HSD

A party requesting that the court designate and protect previously filed, sealed or redacted documents as HSD shall comply with § I. C. Filing HSD in a Pending Case or Proceeding, of these Procedures. In addition, any motion must set forth the docket number assigned to the relevant previously filed document(s).

E. Court’s Handling of HSD

Upon receipt of any HSD and related material (such as, for example a Certificate or motion required by these Procedures), the Clerk shall place the HSD, and related pleadings under seal and shall store them in a secured, paper filing system.

F. Court-Issued Documents Containing HSDs

If an opinion, order, or other court-issued document contains or refers to HSD, the issuing judge will create a redacted or unsealed version of the court-issued document, which will be placed in the publicly available record. The sealed or unredacted version of the court-issued document also will become part of the record of the case or proceeding, but it will be securely stored and not publicly available, in accordance with these procedures.

II. Sealing or Redacting Confidential Materials or Documents

An order authorizing the sealing or redaction of confidential material or documents (i.e. not HSD) will be issued only upon a motion which establishes that the allegedly confidential material or document(s) is/are entitled to protection under applicable law. The motion must be as narrowly tailored as possible, and shall specify the grounds on which the request is based. See11 U.S.C. § 107(b) and (c); Fed. R. Bankr. P. 9018.  Any such motion must be supported by a competent declaration that attests to the factual bases for the relief sought.  B.L.R. 9013-1(d).

Litigants shall review all information pertaining to sealed or redacted documents and the detailed docketing instructions posted on the court’s website at: http://www.canb.uscourts.gov/ecf/efiling-manual/sealed-events Compliance with these instructions will help avoid docketing errors and the unintentional disclosure of confidential information.

A. General Guidelines

  • CM/ECF has a Sealed Event category for all related sealed events.

  • Parties do not have to produce and submit to the court hard copies of electronically sealed documents unless the presiding judge requires chambers copies.  Refer to the Division Procedures for the posted copy requirements of the presiding judge.

  • The presiding judge and designated staff will receive electronic access to sealed or redacted documents.

  • Public access to sealed or redacted documents will be restricted.

  • These procedures do not apply to redacted filings authorized by Bankruptcy Rule 9037(b), which pertains to personal or financial information and which permits certain redactions without prior leave of court.

  • A “Motion to Redact Previously Filed Document” and a “Motion to File Redacted Document” are separate and distinct events in CM/ECF and serve separate purposes:

o Motion to Redact Previously Filed Document: This event is used when the filing party seeks to redact and limit access to personal information (see Bankruptcy Rule 9037) set forth in a document previously filed with the court (e.g., a proof of claim that includes a complete Social Security number or a pleading that includes a complete bank account number). This event is found under the “Motion” category in CM/ECF and requires payment of a $28.00 fee. For additional information, see District Procedure for Motion to Redact Previously Filed Document .

o Motion to File Redacted Document: This event should be used when a party seeks prior permission to file a document in which confidential information has been redacted. This event is located in the “Sealed Events” category in CM/ECF and does not require payment of a fee.

B. CM/ECF Filing Sequence for SEALED Documents

(1) File “Motion to File Document Under Seal”. The docket entry and motion will be viewable by the public. DO NOT ATTACH sealed documents to this event.

(2) File Proposed Sealed Document. The document must be clearly marked “PROPOSED DOCUMENT FILED UNDER SEAL”. The docket entry will be viewable by the public, but access to the document itself will be restricted. This means that clicking on the document’s hyperlink will cause CM/ECF to display the following message: “You do not have access to the restricted document.”

(3) Upload “Order re: Motion to File Document Under Seal”.

(4) Declaration(s) in Support of or in Opposition to a Motion to File Document Under Seal.  Following Movant's submission of the material described in steps (1) - (3), above, within 4 court days any party may file a declaration in support of or in opposition to the Motion.  Such declaration shall clearly identify the specific documents or portions thereof that should or should not be sealed or redacted, and shall clearly explain the grounds for such relief.

(5) Judge will review Order, Motion, and Proposed Sealed Document(s).

(a) If Motion is Granted: The Proposed Document(s) Filed Under Seal will remain sealed and become part of the record. The Clerk will annotate the original docket entry as follows: PROPOSED SEALED DOCUMENT(S) APPROVED – REFER TO DOCKET ENTRY #_____.

(b) If Motion is Denied: The Proposed Document(s) Filed Under Seal will remain on the docket with access restricted but will not become a part of the record. The Clerk will annotate the original docket entry: PROPOSED SEALED DOCUMENT(S) DENIED – REFER TO DOCKET ENTRY #_____.

(c) If Motion is Granted in Part and Denied in Part: Proposed Document(s) filed Under Seal will not become part of the court's record unless the Movant files within 7 calendar days following entry of the order a redacted version of the document that comports with the court's order.

C. CM/ECF Filing Sequence for REDACTED Documents

(1) File “Motion to File Redacted Document”. The docket entry and motion will be accessible by the public. DO NOT ATTACH proposed redacted documents to this event.

(2) File Unredacted Version of the Proposed Redacted Document. The document must be clearly marked “UNREDACTED VERSION OF PROPOSED REDACTED DOCUMENT”. The docket entry will be viewable by the public, but access to the document will be restricted. If a user attempts to access the document by clicking on its hyperlink, the CM/ECF system will display the following message: “You do not have access to the restricted document.” The filer must highlight in yellow the portion(s) of the document to be redacted. This permits the court to distinguish between redacted and unredacted information and helps minimize the possibility that the court will accidentally disclose redacted/confidential material in open court or in an order or decision.

(3) File the Redacted Document. The redacted version may be entered on the docket and the document must be clearly marked “REDACTED VERSION OF [Insert Title of Proposed Redacted Document]”. E.g., REDACTED VERSION OF OBJECTION TO PROOF OF CLAIM NO. 2-1. The filer is responsible for ensuring the effectiveness of its redaction, i.e., that all confidential information has been redacted and that the redaction method actually conceals the confidential information. The docket entry and the Redacted Document will be viewable by the public.

(4) Upload “Order re: Motion to File Redacted Document”.

(5) Declaration(s) in Support of or in Opposition to a Motion to File Redacted Document.  Following Movant's submission of the materials described in steps (1) - (4), above, within 4 court days any party may file a declaration in support of or in opposition to the Motion.  Such declaration shall clearly identify the specific documents or portions thereof that should or should not be sealed or redacted, and shall clearly explain the grounds for such relief.

(6) Judge will review Order, Motion, and Proposed Redacted Document(s).

(a) If Motion is Granted: The Redacted Document will remain as part of the record. The Clerk will annotate the original docket entry as follows: PROPOSED REDACTED DOCUMENT APPROVED – REFER TO DOCKET ENTRY #_____.

(b) If Motion is Denied: Access to the unredacted document will be restricted and it will not become part of the record. The Clerk will annotate the original docket entry: PROPOSED REDACTED DOCUMENT DENIED – REFER TO DOCKET ENTRY #_____.

(c) If Motion is Granted in Part and Denied in Part:  Proposed Redacted Document(s) will not become part of the court's record unless the movant files within 7 calendar days following entry of the order a revised redacted version of the document that comports with the court's order.