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Judges and thereafter submitted to the Lawyers Advisory Committee. The Rule is intended to reflect Supreme
Court and Third Circuit law and does not set forth in detail all standards established by precedent.
Subparagraph (a)(1). This subparagraph describes the scope of the Rule. It applies to any application to
seal materials filed with the Court, materials utilized in connection with judicial decision-making, or judicial
proceedings. The use of the phrase, “otherwise restrict public access,” as used in the Rule, is intended to
address any application which might seek less than the complete sealing of materials or proceedings. The
phrase, “in connection with judicial decision-making,” is intended to exclude, among other things, letters to
judges which are not substantive in nature. See, for the definition of a “judicial record”, In re Cendant Corp.,
260 F.3d 183 (3d Cir. 2001), and for the distinction between discovery and non-discovery pretrial motions,
Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir.1993).
Subparagraph (a)(2). This subparagraph defines “materials” and “judicial proceedings.” The definitions
are intended to be broad and to allow for the development of case law. For that reason, the word “materials” is
used rather than “judicial records,” the latter approaching a term of art. Note that judicial proceedings are not
intended to encompass in-chambers conferences.
Subparagraph (a)(3). The purpose of this subparagraph is to make clear that the rule is not intended to
affect any “statute or other law” that mandates sealing of materials or judicial proceedings (for example,
amended Section 205 (c)(3) of the E-Government Act of 2002, Pub. L. No. 107-347, and the qui tam provisions
of the False Claims Act, 31 U.S.C. § 3729 et seq.).
Subparagraph (a)(4). The right of public access to filed materials and judicial proceedings derives from
the First Amendment and federal common law. Consistent with this right, this subparagraph establishes a
presumption in favor of public access.
Subparagraph (b). In keeping with the comprehensive nature of the Rule, this subparagraph is intended
to apply to unfiled discovery materials and to be consistent with footnote 17 of Pansy v. Borough of
Stroudsburg, 23 F.3d 772 (3d Cir. 1994): “because of the benefits of umbrella protective orders in cases
involving large-scale discovery, the court may construct a broad protective order upon a threshold showing by
the movant of good cause. ... After delivery of the documents, the opposing party would have the opportunity to
indicate precisely which documents it believed not to be confidential, and the party seeking to maintain the seal
would have the burden of proof with respect to those documents.” 23 F.3d at 787 n.17 (citation omitted).
As a general proposition, there is no right of public access to unfiled discovery materials. See, e.g., Seattle
Times Co. v. Rhinehart, 467 U.S. 20 (1984); Estate of Frankl v. Goodyear Tire and Rubber and Co., 181 N.J. 1
(2004) (per curium). This subparagraph, however, is not intended to prohibit any interested person from
seeking access to such materials.
Subparagraph (b)(1) recognizes the above proposition, allows parties to enter into agreements such as
that contemplated by Pansy, and also allows materials to be returned or destroyed. See, with regard to
“Agreements on Return or Destruction of Tangible Evidence,” ABA Section on Litigation Ethical Guidelines
for Settlement Negotiations, Guideline 4.2.4 (August 2002).
Subparagraph (b)(2). This subparagraph describes the procedure which parties must follow in
submitting blanket protective orders. Consistent with Pansy, there must be a showing by affidavit or
certification of “good cause” and specific information must be provided. The affidavit or certification must also
be available for public review. The intent of subparagraph (b)(2) is to allow parties to describe the materials in
issue in categorical fashion and thus to avoid document-by-document description. This subparagraph does not
go in greater detail as to the contents of the affidavit or certification. The sufficiency of an affidavit or
certification is a matter for individual determination by a Judge.
Subparagraph (b)(3). This subparagraph is intended to make plain the distinction between blanket
protective orders and orders for the sealing of materials filed with the Court. Blanket protective orders should
not include a provision that allows materials to be filed under seal with the Court.
Subparagraph (b)(4). This subparagraph, together with subparagraph (b)(2), describes “events” for
purposes of CM/ECF. Affidavits or certifications in support of blanket protective orders as well as the
protective orders should be electronically filed using these events.