800 F. Supp. 2d 37
D.D.C.2011Background
- Shepard petitions to release all materials now in or later in NARA relating to Watergate, including grand juries I–III, WSPF, Ervin Committee materials, Impeachment Inquiry materials, and Watergate trial materials and related appellate materials.
- Shepard sought consolidation with the Kutler petition, but the court denied consolidation, treating Shepard as amicus.
- The Kutler petition was granted to disclose Nixon’s grand jury testimony and WSPF materials; Shepard’s request is broader and may be moot only to Nixon materials.
- The petition divides into three categories for consideration: grand jury, congressional, and trial materials.
- The court found the grand jury portion inappropriate under Rule 6(e) secrecy and the Craig factors due to breadth and volume of materials requested, and denied it; the congressional portion defers to Congressional access rules and cites lack of authority to grant access; the trial materials portion relies on Hubbard balancing factors and is denied without prejudice for lack of detail.
- The order denies mootness for Nixon grand jury materials but denies the broader request for non-Nixon materials without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the all-encompassing disclosure request for Watergate grand jury materials falls outside Rule 6(e) secrecy. | Shepard argues for broad disclosure on all-or-nothing basis. | Govt/Court emphasizes breadth and secrecy, volume, and lack of safeguards. | Denied as to breadth; moot for Nixon grand jury materials. |
| Whether congressional records should be released, given legislative access rules. | Shepard seeks congressional records now open under NARA rules. | Senate/House rules govern access and prohibit current release; judiciary lacks authority. | Denied; access decisions rest with Congress. |
| Whether sealed trial materials should be unsealed under Hubbard balancing. | Disclosure serves public informational interests. | Privacy and nondisclosure interests and potential prejudice outweigh disclosure. | Denied without prejudice; petitioner may file a more detailed petition. |
Key Cases Cited
- In re Biaggi, 478 F.2d 489 (2d Cir.1973) (grand jury secrecy tradition; Rule 6(e))
- Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959) (grand jury secrecy origins; exceptions later tied to special circumstances)
- In re Petition of Craig, 131 F.3d 99 (2d Cir.1997) (special circumstances for grand jury disclosure balancing factors)
- Nixon v. Warner Communications, 435 U.S. 589 (1978) (public access to judicial records; discretion of the trial court; balancing factors)
- United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980) (six-factor Hubbard test for sealing/unsealing judicial records)
- Johnson v. Greater Southeast Cmty. Hosp. Corp., 951 F.2d 1268 (D.C.Cir.1991) (applies Hubbard factors to disclosure decisions)