Amendments to the Uniform Rules of Impoundment Procedure
by Chief Justice Paula M. Carey and Joseph Stanton
The Supreme Judicial Court has approved amendments to Trial Court Rule VIII, the Uniform Rules on Impoundment Procedure (URIP), which become effective on October 1, 2015. The URIP have not been amended since their adoption in 1986. The newly approved amendments are the product of the Trial Court Advisory Committee on Impoundment Law and Procedure, which recommended many substantive and stylistic changes in order to conform the URIP to case law and to facilitate their use. These amendments include application of the URIP to criminal proceedings, a trade secret exception, and imposition of a duty on filers to notify the court of any filing containing impounded information. Additionally, the committee has issued the Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure (“Handbook”), which contains annotations and guidance for each rule. This article identifies the substantive changes to the newly amended rules.
Rule 1 Applicability and Definitions. Most significantly, the URIP as amended are expressly applicable to criminal proceedings, as well as civil proceedings, in each Department of the Trial Court. Also, the language in the prior Rule 1, which permitted a court to impound the existence of a case from the court’s docket or index, has been deleted.
Rule 2 Motion for Impoundment. Several substantive amendments have been made to conform the URIP to case law. The new Rule 2(a) requires that the movant describe with particularity the reasons why impoundment is necessary, why alternatives are inadequate, and identify the requested duration of the order. It also requires that the movant file a proposed order and findings, as well as an affidavit in support of the motion. Rule 2(a)(3) requires the motion and supporting affidavit to be publicly available unless otherwise ordered. Rule 2(b)(1) mandates that a motion for impoundment must be filed and ruled upon prior to submission of the materials sought to be impounded, unless filed pursuant to Rule 2(b)(2)’s new procedures for in camera review. If the court denies a motion for impoundment after in camera review, the movant will have fourteen days to retrieve or file the documents, after which unretrieved materials will be destroyed.
Rule 3 Ex Parte Impoundment. Rule 3 has been substantively amended due to the application of the URIP to criminal proceedings. Rule 3 provides that upon a motion and affidavit, or by the court sua sponte, and a showing of immediate and irreparable injury, as well as good cause, the court may enter an ex parte order of impoundment for ten days, unless otherwise extended for good cause shown. The court may, but is not required to, hold a hearing before issuing an ex parte order of impoundment. Any party or interested nonparty aggrieved by an ex parte order may file a written motion to vacate or modify. Rule 3(e) establishes the procedure for filing an ex parte motion to impound materials related to the issuance and/or execution of a search warrant, including any motion to modify or terminate such an order.
The Handbook contains examples of common situations when ex parte orders are entered, including search warrants containing sensitive investigative information, documents pertaining to an ongoing grand jury investigation, or information the public disclosure of which could compromise a defendant’s right to a fair trial or the Commonwealth’s interest in the fair administration of justice.
Rule 4 Service. Service of filings under URIP is effected pursuant to the Rules of Civil Procedure. Notably, this continues the current practice of employing essentially the same service methods for civil and criminal proceedings. Rule 4(d) instructs that an interested nonparty’s motion to obtain access to impounded documents in a criminal case should be served on the parties and on the Office of the Attorney General (OAG), who shall have an opportunity to be heard on the motion. The movant has the burden to notify the court of the OAG’s right to be heard. Rule 4(e) requires that the affidavit of service specify the names and addresses of those served, and the method and date of service.
Rule 6 Involvement of Interested Nonparties. The title of Rule 6 has been amended from “Motion by Third Person to be Heard” to “Involvement of Interested Nonparties.” Rule 6 governs the participation of an “interested nonparty,” which Rule 1(b)(11) defines as:
[A] person who is not or was not a party to the underlying matter in which an impoundment issue has arisen, but who nevertheless expresses to the court (through a motion, an appearance limited to impoundment, filing, or otherwise) an interest in the impoundment proceeding, or who has been named by the court as a person who shall receive notice.
Rule 6 allows an interested nonparty to request, oppose, modify, or terminate an order of impoundment. The rule sets forth different procedures for pending cases and cases in which a final disposition has been entered.
Rule 7 Hearing. Rule 7 continues the URIP requirement that a hearing shall be held before the court enters an order of impoundment, except as otherwise provided in the URIP. Rule 7(b) adds a non-exhaustive list of factors a court shall consider in determining good cause, including, for instance, balancing in criminal proceedings the public’s right of access against the defendant’s constitutional right to a fair trial. Whereas the prior version of Rule 7 permitted the court to close the entire hearing if a public hearing would risk disclosure of information sought to be impounded, the new Rule 7(d) authorizes the court to conduct, in camera, only that portion of a hearing that may risk disclosure.
Rule 7(e) as amended includes a trade secret exception to the requirement for a hearing. The court may allow a motion for impoundment without a hearing upon a finding of good cause when “(1) the reason for the impoundment is to protect trade secrets or other confidential research, development, or business information, (2) the motion is by agreement or the motion is unopposed, (3) no party or other person has requested a hearing, and (4) the information does not involve an alleged or potential public hazard or risk to public safety.”
Rule 8 Order of Impoundment. Rule 8(a) states that “[a]n order of impoundment, whether ex parte or after notice, may be entered only upon a written finding of good cause.” Rule 8(b) requires the order to identify specifically the material to be impounded, and include a date certain for expiration of the order. Rule 8(c) requires the court to narrowly tailor the scope of the impoundment, and authorizes the court to require the filer to submit a redacted copy for public inspection. Rule 8(d) provides that the order be entered on the docket, kept in the public file, and made available for public inspection. “The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment. All information stating or disclosing the impounded material shall be omitted or redacted from the order prior to public inspection.”
Rule 12 Review. The amendments to Rule 12 are significant, but principally codify existing procedures established by case law. Rule 12 now distinguishes between two procedures for review of impoundment orders, depending on whether the order was entered in “ongoing proceedings” or in “proceedings which have concluded.” Under Rule 12(a), applicable to ongoing proceedings, a party or interested nonparty aggrieved by an order entered under the URIP may seek review from a single justice of the Appeals Court, in accordance with the procedures governing single justice practice. Under Rule 12(b), which governs concluded proceedings, challenges to URIP orders must proceed in accordance with the Massachusetts Rules of Appellate Procedure.
Rule 13 Maintaining Confidentiality of Impounded Material. Rule 13 is a new rule. It imposes a duty on the filer of any document to ascertain whether any information in the document has been designated “impounded” by order, statute, court rule, standing order, or case law. For any such document, Rule 13(b) requires that the filer “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 cover page of the document containing the impounded information must identify that it is impounded. Rule 13(c) imposes upon “all persons” a duty to protect the confidentiality of impounded materials, and prohibits the unnecessary disclosure of impounded information at hearings, trials or in written filings. Rule 13(d) states that the inadvertent filing of a document containing impounded information 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 to strike the material and/or order it refiled with the appropriate notice and any necessary redaction.
Handbook. The Handbook, in addition to annotations and guidance as to each rule, contains sections intended to promote uniformity and consistency in the administration of URIP filings and orders, and in the clerk’s handling of impounded materials. The Handbook also contains a sample impounded notice form for filers, a sample order form for the court, and a list of Massachusetts authorities that designate certain information as impounded, confidential, or not available for public inspection.
The full text of the amended URIP is posted on the Judicial Branch’s website, including the Handbook which, thanks to the efforts of the Trial Court Law Libraries personnel, contains hyperlinks to the referenced authorities. Also, as of the time of submission of this article, the Appeals Court has posted for public comment proposed amendments to its Standing Order Concerning Petitions to the Single Justice, which will govern the filing requirements for a petition for review of an impoundment order, pursuant to URIP Rule 12(a). In addition, the Supreme Judicial Court has proposed amendments to S.J.C. Rule 1:15, which governs impoundment procedure in the appellate courts. It is anticipated that these amendments will become effective on October 1, 2015, the effective date of the amendments to Trial Court Rule VIII.
Trial Court Chief Justice Paula Carey and Appeals Court Clerk Joseph Stanton are co-chairs of the Trial Court Advisory Committee on Impoundment Law and Procedure.