United States District Court, D. Connecticut
RULING ON MOTION TO UNSEAL
W. THOMPSON UNITED STATES DISTRICT JUDGE
Intervenor has moved to unseal (1) the government's
motion to seal and the accompanying motion for a downward
departure, and (2) the defendant's sentencing memorandum.
For the reasons set forth below, the Intervenor's motion
is being denied except to the extent the Intervenor seeks to
have a redacted version of the defendant's sentencing
FACTUAL AND PROCEDURAL BACKGROUND
defendant pled guilty. In anticipation of sentencing, the
defendant filed a motion to seal, accompanied by a sealed
sentencing memorandum (the “Defendant's Sentencing
Memorandum”). The court granted that motion to seal the
next day. The defendant's motion to seal explained that
he sought to seal the sentencing memorandum because it relied
upon and contained references to cooperation with the
government by the defendant and by another individual (the
“Additional Cooperator”). The motion stated that
the sealing was necessary for the defendant's safety
during his period of incarceration, and also necessary for
the safety of the Additional Cooperator.
thereafter, the government filed a motion for a downward
departure and a supporting memorandum (the
“Government's Motion”), accompanied by a
motion to seal. The court granted the government's motion
to seal two days later. The government's motion to seal
explained that its sealing motion and its substantial
assistance motion and memorandum contained information
related to one or more individuals which, if filed publicly,
could expose the individuals to harassment or victimization.
As a result of inadvertence, the government submitted its
sealing motion and its substantial assistance motion and
memorandum through the court's electronic filing system
using the menu option “Motion to Seal”, unaware
that its submission could be publicly accessed unless and
until the court granted the motion to seal. During the
intervening period between the filing of the Government's
Motion and the court's granting of the motion to seal, a
reporter for the Intervenor publicly accessed the documents
court held a sentencing hearing, which had been publicly
noticed on the docket, in open court. On the day of the
sentencing, the Intervenor published an article about the
defendant's sentencing, which recounted nearly all of the
information that was in the Government's Motion.
Intervenor filed a motion to intervene and to unseal the
Defendant's Sentencing Memorandum and the
Government's Motion. The court granted the motion to
intervene and scheduled a hearing on the motion to unseal and
subsequently, the parties submitted briefing.
factual and procedural background appears in the sealed
addendum to this ruling.
courts employ two related but distinct presumptions in favor
of public access to court proceedings and records: a strong
form rooted in the First Amendment and a slightly weaker form
based in federal common law.” Newsday LLC v. County
of Nassau, 730 F.3d 156, 163 (2d Cir. 2013).
the First Amendment form, the Second Circuit has:
. . . applied two different approaches when deciding whether
the First Amendment right applies to particular material. The
“experience-and-logic” approach applies to both
judicial proceedings and documents, and asks
“both whether the documents have historically been open
to the press and general public and whether public access
plays a significant positive role in the functioning of the
particular process in question.” [Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir.
2006)] (internal quotation marks omitted). The second
approach-which we adopt only when analyzing judicial
documents related to judicial proceedings covered by the
First Amendment right-asks whether the documents at issue
“are derived from or are a necessary corollary of the
capacity to attend the relevant proceedings.”
Id. (internal quotation marks and alteration
Id. at 164. “Courts adopting the first
approach have applied the test for establishing presumptive
openness that the Supreme Court distilled from its precedents
in Press Enterprise II, where it formulated a two-pronged
inquiry for evaluating whether particular proceedings should
enjoy openness.” Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 92 (2d Cir. 2004).
Press Enterprise II v. Superior Court of California for
Riverside Cty., the Court explained:
In cases dealing with the claim of a First Amendment right of
access to criminal proceedings, our decisions have emphasized
two complementary considerations. First, because a tradition
of accessibility implies the favorable judgment of
experience, we have considered whether the place and process
have historically been open to the press and general
public.... Second, in this setting the Court has
traditionally considered whether public access plays a
significant positive role in the functioning of the
particular process in question.
478 U.S. 1, 8 (1986). “This analysis has been
summarized as requiring examination of both ‘logic'
and ‘experience' in establishing the public's
and press's qualified First Amendment right of
access.” Hartford Courant Co., 380 F.3d at 92
(citing ABC, Inc. v. Stewart, 360 F.3d 90, 98 (2d
Cir.2004) (internal quotation marks omitted)).
adhering to the second approach have viewed the media's
and public's qualified right of access to judicial
documents as derived from or a necessary corollary of the
capacity to attend the relevant proceedings.”
Hartford Courant Co., 380 F.3d at 93. The Second
Circuit has concluded “that the right to inspect
documents derives from the public nature of particular
tribunals. Our decision in In re The New York Times
Company, considering the right of access to documents
filed in connection with pretrial motions, observed that
‘[o]ther circuits that have addressed [the] question
have construed the constitutional right of access to apply to
written documents submitted in connection with judicial
proceedings that themselves implicate the right of
“[e]ven when it applies, . . . the First Amendment
right creates only a presumptive right of
access.” Newsday LLC, 730 F.3d at 164
(emphasis in original). “As we have noted,
‘[w]hat offends the First Amendment is the attempt to
[exclude the public] without sufficient justification,'
[N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,684 F.3d 286, 296 (2d Cir.2012)], not the simple act of
exclusion itself.” Id ...