We often get questions about sealed documents on appeal. This post sets out a few items that might not be obvious to someone new to the Sixth Circuit or that has not dealt with the issue in a while. The most important thing to know is that if a sealed document has an entry on PACER that document is easily and fully accessible to the Court. There is no need to include the document in an addendum, appendix, or other special filing. You can even cite to those documents using the standard format: (R.12, description, PageID123.) But because PACER does not allow access to the version of the document with the PageID, you will often need to use the internal page numbering or other markings to direct the court to the relevant pages of the document. If the document lacks page numbering, or will be cited many times in your brief, you may want to ask the case manager to send you a copy of the sealed document with the PageID numbering.
Sealed documents that do not have an entry on PACER should be treated as any other document not in the electronic record. Documents that are important to the appeal and were obviously considered by the district court should be included in an appendix under 6 Cir. R. 10(b). But remember that 6 Cir. R. 25(h) also requires that document sealed in a lower court be filed under seal in the Sixth Circuit. It is also a good practice to ask opposing counsel whether they have an objection to the filing because Rule 10(e) states that the district court should resolve any questions about what is in the record. If there is a dispute about what should be in the record, the Sixth Circuit will often stay the appeal and require you to ask the district court to resolve it.
Of course, a good first step on any sealing issue is to call the responsible case manager at the Sixth Circuit and explain what you are trying to do; they are very helpful and can often save you a lot of time.
