A Notice to the Bar, dated September 1, 2021, was published late yesterday. It is available here. Issued by Judge Messano, the Notice is titled “APPELLATE DIVISION REMINDER TO COUNSEL REGARDING SUBMISSION OF CONFIDENTIAL DOCUMENTS AND OTHER ISSUES CONCERNING CONFIDENTIALITY.” Its purpose is “reminding attorneys about the submission and treatment of confidential material in Appellate Division matters.”
The Notice first addresses confidential personal identifiers, noting that Rule 1:38-7, applicable on appeal as well as at the trial level, defines “confidential personal identifiers” as “a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number, or information pertaining to an individual’s military status.” Such information may not be included in any submission to the Appellate Division “unless otherwise required by statute, rule, administrative directive, or court order.” Parties making Appellate Division filings are required to certify in their Case Information Statements that all personal identifiers have been and will continued to be removed from court filings.
The Notice then goes on to discuss the submission of confidential documents to the Appellate Division. “Rule 2:6-1(a)(3) describes the mechanism to submit documents that are excluded from public access in otherwise unsealed cases.” A separate confidential appendix is required. Certain highly confidential materials must be submitted in “three separate envelopes clearly marked for the confidential use of the court. See Notice to the Bar, Electronic Filing in the Appellate Division (“eDATA”) (January 21, 2015).”
Motions to seal the record are another subject of the Notice. “Records deemed confidential by statute, rule or case law will continue to be treated as confidential in the Appellate Division. [But t]rial court orders that designate other material and proceedings as confidential do not bind
the Appellate Division.” To seal the record, a party must move for that relief within 30 days of the filing of the notice of appeal. A brief demonstrating “good cause” by a preponderance of the evidence is required. “A certification will not suffice.” Good cause exists “when disclosure will likely cause a clearly defined and serious injury to any person or entity and the person’s or entity’s interest in privacy substantially outweighs the presumption that all court and administrative records are open to public inspection pursuant to Rule 1:38. Rule 1:38-11.”
Finally, the Notice reminds everyone that oral arguments are mandated to be conducted in open court, under Rule 1:2-1. “Counsel in certain proceedings, e.g., appeals in termination of parental rights matters, must exercise proper judgment to avoid using names and other personal identifiers during argument. Counsel should expect the details of the case to be discussed in open court.”
Relatedly, “[a]ll Appellate Division opinions, whether published or unpublished, are posted on the internet. An Appellate Division opinion may quote or reference court records that are otherwise excluded from public access. Rule 1:38-1A.” Thus, the Notice urges counsel to “discuss this with your clients before filing a notice of appeal and consider present and future implications of an opinion naming your client being posted on the internet. See, e.g., [Rule of Professional Conduct] 2.1. Once the appeal is posted on the internet, it is beyond the ability of the Appellate Division to remove it.”