Trial Court Rules  Uniform Rules on Impoundment Procedure Rule 13: Maintaining confidentiality of impounded material

The filer of any document in a case or court proceeding shall first ascertain whether any information contained within the document is subject to a court order of impoundment, or contains information designated as “impounded” by statute, court rule, standing order, or case law. Unless it is necessary to do so, a filer shall not include impounded information in documents filed with the court. 

The filer of a document containing impounded information shall simultaneously file a notice that shall (i) notify the clerk that impounded information is included within the document being filed; (ii) identify the specific legal authority requiring impoundment of the identified information; and (iii) identify the precise location of the impounded information within the document being filed. The clerk shall docket the notice and designate the referenced document as impounded. The cover page of the document containing the impounded information shall identify that it is impounded. The Chief Justice of the Trial Court shall have the authority to approve Trial Court departmental requests for Standing Orders that provide for exceptions to this notice requirement.

All persons shall protect the confidentiality of the impounded material. During any hearing or trial in public sessions, a filer shall not disclose impounded material, provided that in cases where such disclosure is necessary, a filer shall notify the clerk in advance and shall, in appropriate cases, make such disclosures in a manner which protects the confidentiality of the impounded material.

Any inadvertent filing of a document that contains impounded information, without the required accompanying notice, does not waive the confidentiality of the information. In such instances, any party may file a motion to strike such material from the record, or the court may act sua sponte. The court may order the material struck and to be refiled, with the appropriate notice and any necessary redaction.

URIP Rule 13 applies to both the initial filing of impounded material and the filing of impounded material after subsequent proceedings have taken place in the underlying court matter. As such, the filer of any document must identify whether any material contained therein is impounded pursuant to either an order of impoundment entered, or automatically by statute, court rule, standing order, or case law. The filer shall notify the court that impounded information is included within the document, and identify both the specific legal authority requiring impoundment of the identified information, and the precise location of the impounded information within the document being filed. 

The notice must always be filed along with the impounded material, no matter the stage of the underlying litigation. Notably, when a case or specific materials are impounded by a statute, court rule, standing order, or case law, the filer need not file a “motion for impoundment” because the information is already required to be impounded. In such instances, a notice that the filing “contains impounded information” enables the clerk and court staff to properly identify and set aside protected material. 

Form of Filing of Impounded Materials 

If the entire case has not been impounded, or only a portion of a filing is impounded, then the impounded material shall be submitted in a manner that keeps such material physically separate from other public materials. For example, an attorney may submit impounded material in a separate envelope that is prominently marked “IMPOUNDED.” In addition, the top page of the document must clearly indicate that the document contains impounded material or contains references to impounded material. The clerk shall keep separate the impounded material from the remainder of the case record in accordance with the Uniform Practices for the Clerk's Handling of Impounded Material. See Section 2 of [the] Handbook. 

References to Person Whose Name is Impounded 

If the name of a party or person has been impounded pursuant to either a court order issued or by a statute, court rule, standing order, or case law, counsel shall preserve confidentiality at all times, including all future filings and at any hearing, by using a pseudonym, initials, or otherwise obscuring the identity of the party or person whose name has been impounded.

Exceptions to Rule 13(b) 

The final sentence of Rule 13(b) is a technical amendment approved on September 24, 2015, which became effective on October 1, 2015.  The final sentence of Rule 13(b) provides the Chief Justice of the Trial Court with the authority to approve departmental requests for Standing Orders that allow for exceptions to the notice requirement set forth in Rule 13(b). As indicated above, the notice requirement is intended to enable the clerk and court staff to properly identify and set aside protected material. The amendment provides for the identification of circumstances for the requirement to be waived with respect to materials where the application of this requirement would not be necessary or useful to the clerk.

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