Minn. R. Civ. App. P. 112

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Below is Rule 112 of the Minnesota Rules of Civil Appellate Procedure. Rule 112 deals with Confidential Information; Sealing of Portions of Record, and is indexed under TITLE II. APPEALS FROM JUDGMENTS AND ORDERS.

Rule 112.01 Status of Confidential Record Material on Appeal

Subdivision 1. Materials Not Available to the Public. Materials that are filed in the trial court under seal or in another manner that makes the materials unavailable to the public pursuant to statute, court rule, or trial court order, as well as any documents containing restricted identifiers as defined in Rule 11 of the General Rules of Practice, will remain under seal or not available to the public on appeal unless either the trial court or appellate court orders otherwise.

Subdivision 2. Sealing of Materials on Appeal. In extraordinary situations where material in the record is confidential or trade-secret information that was not protected by a confidentiality order in the trial court, a party may move to have it filed under seal on appeal. The motion must demonstrate the need for sealing the information and must set forth the efforts made to maintain the confidentiality of the information before the motion was brought.

(Adopted effective January 1, 2010.)

Advisory Committee Comment - 2009 Amendments

Rule 112 is a new rule intended to codify existing practices relating to handling confidential information on appeal. The rule applies to information that is filed under seal pursuant to a court order for sealing, as well as to other information that is not available to the public by operation of law.

The general policy of the Minnesota courts is that court records are accessible to any member of the public. See Rule 2, Minnesota Rules of Public Access to Records of the Judicial Branch, reprinted in MINNESOTA RULES OF COURT: STATE 1083 (West 2009 ed.). This general policy is carried forward by Rule 4 governing accessibility of case records. Rule 4, subdivision 2, specifies that restricting access to case records is governed by court rules. Many statutes limit access to particular case types. See Rule 4, Minnesota Rules of Public Access to Records of the Judicial Branch, Advisory Committee Comment—2005, reprinted in MINNESOTA RULES OF COURT: STATE 1085-86 (West 2009 ed.) (collecting citations to statutes). In addition, Minn. Gen. R. Prac. 11 requires filing of personal identifying information in a separate document filed under seal.

The majority of orders restricting access to court records in civil cases are entered pursuant to Minn. R. Civ. P. 26.03(e) (limiting persons present during discovery), (f) (allowing court to order sealing of depositions), and (h) (allowing court to order parties to file other documents under seal). See generally Minneapolis Star & Tribune v. Schumacher, 392 N.W.2d 197 (Minn. 1986). Criminal case protective orders are governed by Minn. R. Crim. P. 25. See generally Minneapolis Star & Tribune v. Kammeyer, 341 N.W.2d 550 (Minn. 1983); Nw. Publ’ns, Inc. v. Anderson, 259 N.W.2d 254 (Minn. 1977).

The most common situation relating to sealed materials on appeal relates to the continued protection of materials filed under seal in the trial court. Subdivision 1 of Rule 112.01 restates the general rule that documents that are sealed in the trial court will remain sealed on appeal.

Rule 112.02. Handling of Confidential Portions of the Appellate Record

Any materials that are filed under seal or in another manner that makes the materials unavailable to the public that need to be included in an addendum or appendix on appeal shall be prepared in a separately bound Confidential Addendum or Confidential Appendix and filed in a sealed envelope designated as “Filed under Seal pursuant to Order of the _____________ Court dated __________” or in substantially similar form that describes the basis for the assertion of confidentiality.

(Adopted effective January 1, 2010.)

Advisory Committee Comment - 2009 Amendments

Rule 112.02 creates the required process for handling sealed records on appeal. The rule is intended to permit the ready handling of confidential documents by the court and to ensure that sealed information remains inaccessible to the public. Despite the additional expense that may be incurred, the duty to maintain confidentiality may require a more cumbersome process to permit the parties to advance their appellate arguments without compromising confidentiality rights that are recognized under law.

Rule 112.03. Duty to Maintain Confidentiality

Every party to an appeal must take reasonable steps to prevent the disclosure of confidential information, both in oral argument and written submissions filed with the court, except in the manner prescribed in Rule 112.02.

(Adopted effective January 1, 2010.)

Advisory Committee Comment - 2009 Amendments

Rule 112.03 imposes an affirmative duty on all parties to maintain the confidentiality of information that is protected by statute, rule, or court order.

If the inability to discuss confidential information in motion papers or briefs would cause substantial hardship or prevent the fair presentation of a party’s argument, a party may seek leave to file separate “public” and sealed versions of the motion or brief, with confidential information redacted in the public version and stated as necessary in the sealed version. Each separately represented party would have to be served with both the “public” and sealed versions of any documents filed with the court and served on all parties. Other means to minimize the disclosure of confidential information include referring to parties by their initials or description rather than by name, or by describing this information in terms of its specific location in the confidential part of the record without disclosing the information itself.

Rule 112.04. Oral Argument

Appellate arguments are public hearings.

(Adopted effective January 1, 2010.)

Advisory Committee Comment - 2009 Amendments

Even in cases where portions of the record are confidential and filed under seal, the oral argument hearing will be in open court, open to the public, and possibly televised. The rule does not forbid closing a hearing to the public. Neither the Minnesota Supreme Court nor the Minnesota Court of Appeals has closed a hearing in the past.