He New York City Bar Association Committee Exchange Of Confidential Information Page 2
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15court may prescribe appropriate notice and opportunity to be heard.
(b) For purposes of this rule, "court records" shall include all documents
and records of any nature filed with the clerk in connection with the action.
Documents obtained through disclosure and not filed with the clerk shall
remain subject to protective orders as set forth in CPLR 3103(a).
However, litigants have legitimate concerns about keeping private information private
and protecting trade secrets, particularly in this age of electronic filing and the Internet.
George F. Carpinello, "Public Access to Court Records In New York: The Experience
Under Uniform Rule 216.1 and the Rule's Future in a World of Electronic Filing," 66
Alb.L.Rev.1089 (2003). In fact, many proposed confidentiality orders are rejected,
particularly in the Commercial Division, because parties attempt to seal files by
agreement.
With respect to filing under seal, the Stipulation and Order provides that the party
who designated the documents as confidential will be given notice of the other party’s
intent to file such material with the court, and the designating party may then file a
motion to seal the document or the file within seven days. See e.g. Eusini v. Pioneer
Electronics (USA), Inc., 29 A.D.3d 623, 815 N.Y.S.2d 653 (2d Dep’t 2006). The
confidential material may not be filed until the court decides the motion to seal.
Alternatively, any party may submit confidential documents in a sealed envelope to the
clerk of the part or chambers, and the documents will be returned upon disposition of
the motion or other proceeding.
Attorneys’ Eyes Only
As for “Attorneys’ Eyes Only,” the Committee decided not to include the option
for such protection primarily out of a concern that it would be invoked far more than
necessary. Inevitable disputes over the propriety of a party’s invoking “Attorneys’ Eyes
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