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United States v. Doe

United States District Court, D. Connecticut

March 6, 2019

UNITED STATES OF AMERICA
v.
JOHN DOE

          RULING ON MOTION TO UNSEAL

          ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE

         The 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 memorandum filed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         Shortly 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 on PACER.

         The 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.

         The 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.

         Additional factual and procedural background appears in the sealed addendum to this ruling.

         II. LEGAL STANDARD

         “Federal 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).

         As to 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 omitted).

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).

         In 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)).

         “Courts 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 access.'” Id.

         However, “[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 ...


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