The policies

There are three basic approaches that federal district courts have taken regarding the establishment of policies for when or whether to seal plea agreements. The following three districts are examples of these approaches.

Open Everywhere — U.S. District Court of the District of Columbia: The district views all plea agreements like any other document filed in the court. “Absent statutory authority, no cases or documents may be sealed without an order from the Court. Any pleading filed with the intention of being sealed shall be accompanied by a motion to seal. The document will be treated as sealed, pending the outcome of the ruling on the motion. Failure to file a motion to seal will result in the pleading being placed on the public record.” The vast majority of district courts have similar practices to D.C., although many don’t have formal or written policies. Instead the courts seal plea agreements on a case-by-case basis under an order by the judge. In these districts, if the agreements aren’t ordered to be sealed, they include any cooperation information and are open to the public and available on PACER, the federal online docketing system.

Separation of Cooperation Agreements — U.S. District Court of North Dakota:The district enacted a policy in 2007 to ensure that the public could not identify cooperating defendants. Basically, a plea agreement is filed and is available to the public, and a supplement to that document with cooperation information is filed under seal. The policy states: “Plea Agreements must no longer identify whether a criminal defendant has agreed to cooperate with the United States. A second document entitled ‘Plea Agreement Supplement’ must be filed under seal in conjunction with every Plea Agreement. If a criminal defendant has agreed to cooperate, the Plea Agreement Supplement must contain the cooperation agreement. If the criminal defendant and the United States have not entered into a cooperation agreement, the Plea Agreement Supplement will indicate that no such agreement exists.” More than ten districts have policies similar to the one in North Dakota although other districts have varying names for the “Plea Agreement Supplement,” including “Cooperation Agreement.”

Only at the Courthouse — U.S. District Court of the Eastern District of North Carolina: The court established a policy making all plea agreements available to the public only at the courthouse. According to the policy, “As to all plea agreements in criminal cases filed after August 28, 2009, the Clerk of this Court is directed to file said plea agreements in such a manner that there is no remote electronic public access to plea agreements … The public, including members of the news media, may have access to filed plea agreements at the public terminal in the clerk’s office, subject to existing rules regarding these access methods.” At least two other district courts have a similar policy, the U.S. District Court of the Northern District of California and the U.S. District Court of the Southern District of Ohio.