United States v. Bulger
2012 U.S. Dist. LEXIS 98770
D. Mass.2012Background
- Protective order issued Aug. 9, 2011 to guard discovery in Bulger prosecution; blanket scope categorizing materials but excluding already public records.
- Order allowed defense to review/disclose materials to necessary staff, use solely for case, and not reveal to others.
- Gaps: order did not limit to categories; public-record materials created burdens in filing exhibits or cross-referencing related cases.
- Defense argued blanket terms hinder trial preparation and public discussion; asserted personal rights and First/Due Process concerns.
- Globe Newspaper Co. moved to vacate lift or modify order on First Amendment grounds; government sought to maintain protections for sensitive materials (Giglio, informants, grand jury, Title III).
- Court heard July 6, 2012 arguments and issued decisions balancing protection against disclosure with defense needs; ordered document-by-document review and Bates-number designations for continued protection when warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 16(d) supports lifting the protective order | Bulger seeks full removal citing lack of specificized good cause | Government argues blanket order justified by good cause and need to protect sensitive material | Partial lift allowed; require document-by-document designation for continued protection |
| First Amendment challenge to protective order | Globe argues order violates public access to judicial documents | No broad First Amendment right to discovery materials; order limited to pretrial discovery | No inherent First Amendment right to access discovery; order survives with modified, targeted protections |
| Whether to modify to require Bates-numbered designations for continued protection | Disclosures must be unsealed unless objected; burden on defendant minimized | Protection should continue only for material properly designated; Bates-numbering helps identify categories | Government to identify by Bates number with categories; allow seal if disputes arise |
| Whether specific categories (informant files, grand jury, Title III, Giglio) justify continued protection | Public should access non-sensitive materials; seeks vacatur of blanket protection | Categories warrant continued protection to protect informants, witnesses, privacy, and safety | Continued protection for designated categories; require category-by-category review |
| Effect of protection on defense preparation and fair trial rights | Order hampers defense strategies and public discourse; violates Sixth Amendment in practice | Protection balances trial integrity with public right; adjustments permitted | Protective order remains with modifications; two-week window for Bates-designation review; possible further seal motions |
Key Cases Cited
- Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988) (protective orders require good cause; weigh reliance and changed circumstances)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (U.S. 1984) (discovery protections are not classic prior restraints; balance interests under Rule 26(c))
- Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (First Amendment scrutiny of protective orders within Rule 26(c) framework; supports limited dissemination)
- In re Providence Journal Co., Inc., 293 F.3d 1 (1st Cir. 2002) (presumptive public access to judicial records; protects against blanket nondissemination in discovery context)
- Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) (umbrella protective orders favored in large-scale discovery; need for good cause though not document-by-document)