NEW YORK, Sept 15 (Reuters) - The governing body of federal judges has told its members to keep an eye on wholesale sealing of civil cases in the courts.
The Federal Judicial Conference, which sets policies for thousands of federal judges and clerks across the country, on Tuesday adopted a policy designed to limit the number of civil court dockets that are sealed.
A case should only be sealed when there's a specific law that requires it -- such as national security law -- or if it is justified by "extraordinary circumstances," the policy states. Judges that seal dockets should issue orders explaining why, and once the reason for the sealing expires, docket entries should be unsealed.
As federal court dockets have gone digital and become more publicly accessible, the tension over the right of public access and the need to protect cases containing trade secrets or national security has increased.
Anecdotally, judges have become too willing to respond to litigants' requests to seal cases, some litigators say.
"The judge has to be particularly vigilant -- a thing that's not easy for an overworked judge to do -- and this policy reminds a judge to do that," said Jonathan Sherman, a First Amendment lawyer at law firm Boies Schiller & Flexner.
The judicial conference simply expressed a policy; it did not promulgate new hard-and-fast rules. However, since the conference is headed by Supreme Court Chief Justice John Roberts and comprised of top circuit and district court judges, its policies are widely respected.
"When it speaks on a topic like this, to remind judges that they have to follow the law, they speak with a great deal of authority and persuasiveness," said Sherman.
The new policy could represent an effort by the judiciary to address the issue before Congress does, said Arthur Hellman, a professor at the University of Pittsburgh School of Law who studies the federal courts.
Senator Herbert Kohl, a Democrat of Wisconsin, earlier this year introduced legislation to limit sealing of settlement documents in cases affecting public safety.
"This was a preemptive strike by the judiciary to address concerns, without the need for action by Congress," said Hellman.
"It was a shrewd move on their part, and sensible as far as the public interest is concerned," said Hellman.
The policy won't affect Kohl's efforts to pass the legislation this year, according to a spokeswoman for Kohl.
The issue came to the fore within the judicial governing body about five years ago, when Judge Frank Easterbrook, chief judge of the Seventh Circuit Court of Appeals, began looking into the frequency of docket sealing, according to a report accompanying the policy statement issued on Tuesday.
A vast survey, conducted by the research arm of the U.S. courts ensued. The Federal Judicial Center reviewed every federal court filing made in 2006.
While the survey showed only a tiny sliver -- .2 percent -- of civil cases were sealed entirely, it found some cases should not have been sealed to begin with.
"The FJC research also shows that some sealing orders that were proper when entered remain in place after the reason for sealing has expired, and that a small portion of sealed cases were sealed on grounds that raised questions," according to the report. It did not identify those cases.
"The numbers are probably less important than the fact that some of these may be high profile cases, or cases of national interest," said Hellman, the Pittsburgh law professor.
In a separate move on Tuesday, the judicial conference also authorized an increase in fees the public pays to view court filings. It used to charge 8 cents a page, and will charge 10 cents. The new fees will help develop a new online case filing system, the conference said.
(Reporting by Carlyn Kolker)