The Supreme Court’s September 4, 2024 Order providing for the posting online of most Appellate Division and Supreme Court briefs in argued cases, discussed here, has led to an interim Order that begins to address issues raised by that new procedure. In that Order available here, the Supreme Court has mandated a new certification for briefs filed that “a party who files a document or pleading in a public court matter in the Supreme Court or in the Appellate Division of the Superior Court shall be required to certify to the court that the submission contains no confidential information (as set out in Rules 1 :38-3 and 1 :38-5) or confidential personal identifiers (as set out in Rule I :38-7). Further, the filing party shall be required to avoid the disclosure (including, but not limited to, in an online posting or open or livestreamed court proceeding) of confidential information and confidential personal identifiers.” The new requirements are effective immediately.
The Order goes on to state the precise required language of the new certification:
“Briefs Posted Online. I understand that the presence of confidential information or confidential personal identifiers in a document that has been posted on the Judiciary’s public website will be grounds for the removal of such online posting, pending correction by the filing party, on an expedited timeline. The court in its discretion may postpone further proceedings pending the resubmission of the document.
“Confidential Information / Confidential Personal Identifiers (must select one). I certify that I have reviewed Rules 1 :38-3, I :38-5, and 1 :38-7 and:”
“[1.] This document or pleading does not contain any confidential information or any confidential personal identifiers, or
“[2.] This document or pleading previously contained confidential information or confidential personal identifiers, which have been redacted or anonymized, including through the use of fictitious first names or initials. The cover of the redacted version of the document or pleading contains the word “REDACTED.” I acknowledge that a non-redacted version must be filed contemporaneously with the redacted version in matters where the confidential information is necessary to the disposition of the matter.
“Return and Resubmission. I certify that if any confidential information is discovered in this submission and brought to the court’s attention, the court will return the document or pleading to me, and I will be responsible to redact or anonymize the confidential information before resubmission. I understand the court may impose sanctions, including suppression of the brief, dismissal in extraordinary cases, and other measures for a failure to accurately make this certification or for the discovery of confidential information in a document that has been filed.”
Finally, “[t]o support timely posting of briefs for matters before the Supreme Court and Appellate Division of the Superior Court, IT IS FURTHER ORDERED that Rules 2:6-l(c), 2:6-6(a), and 2:8-l(a) are relaxed to provide that briefs and motion briefs shall be filed separately from appendices.”
Anyone who handles appeals needs to become familiar with this Rule relaxation and include the required certification in any filed appellate brief. The Order makes clear that this relaxation is an interim step that “shall remain in effect pending the development and adoption of amendments to the Court Rules.” An evaluation of what amendments might be appropriate is already underway.