807 F.3d 717
5th Cir.2015Background
- Daniel Morales, former Texas Attorney General, was convicted in 2003 of mail fraud and filing a false tax return arising from a scheme involving fabricated retainer agreements to obtain tobacco-settlement fees.
- Private Counsel (the Texas law firms that prosecuted the tobacco litigation) produced discovery and, as cooperating witnesses and identified victims, obtained a protective order in the criminal case preventing Morales from disclosing discovery materials to third parties.
- Morales pleaded guilty, served his sentence, and in 2003 unsuccessfully sought to modify the protective order to introduce certain documents; he did not appeal that denial then.
- In 2014 Morales—having completed his sentence—moved to modify the protective order to lift confidentiality as to two specific documents (in his possession since 2003) so he could use them to pursue a qui tam suit on Texas’s behalf against Private Counsel.
- The district court denied the 2014 motion; Morales appealed the denial and also contested whether his notice of appeal was timely. The Fifth Circuit consolidated the appeals.
Issues
| Issue | Plaintiff's Argument (Morales) | Defendant's Argument (Private Counsel/Gov't) | Held |
|---|---|---|---|
| Whether the appeal is governed by civil Rule 4(a) or criminal Rule 4(b) (timeliness) | Motion to modify protective order is civil in nature; appeal governed by Rule 4(a) (60 days) and thus timely | The motion arose from a criminal docket and is therefore a criminal appeal governed by Rule 4(b) (14 days) | Appeal is civil for Rule 4 purposes; notice was timely under Rule 4(a) |
| Standard of review for denial of modification of a criminal protective order | District court should have allowed limited disclosure of two documents to pursue qui tam suit; appellate review for abuse of discretion | Protective order was justified to protect victims/witnesses; no changed circumstances to modify the order | Denial affirmed: district court did not abuse its discretion in refusing modification |
| Proper legal standard to assess modification (criminal vs. civil analogues; grand jury materials) | Civil standards for modifying protective orders apply; documents may not be grand jury materials | Protective order entered under Rule 16(d)(1); criminal standard controls; documents may be grand jury-protected | Court treated appeal as civil for timeliness but applied Rule 16(d)(1) "good cause" framework (borrowing civil factors) to assess modification |
| Whether Morales showed "good cause"/changed circumstances to lift protective order | Need to use documents in subsequent civil proceedings (qui tam) and new theory justify modification | Protective order aimed to prevent exactly this use; Private Counsel relied on confidentiality; no new facts or changed circumstances | Morales failed to show changed circumstances or sufficient good cause; modification denied |
Key Cases Cited
- United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977) (district court discretion over confidentiality in criminal cases)
- United States v. Miramontez, 995 F.2d 56 (5th Cir. 1993) (disclosure of grand jury materials reviewed for abuse of discretion; civil characterization where appropriate)
- United States v. Truesdale, 211 F.3d 898 (5th Cir. 2000) (use of civil analogues to determine Rule 4(a) applicability)
- Hunt v. U.S. Dep’t of Justice, 2 F.3d 96 (5th Cir. 1993) (motions not part of criminal punishment process are civil for Rule 4)
- United States v. Roher, 706 F.2d 725 (5th Cir. 1983) (Rule 4(a) applies to certain post-criminal civil-type motions)
- United States v. Cooper, 876 F.2d 1192 (5th Cir. 1989) (Rule 4(a) applied to coram nobis analogues)
- United States v. Young, 966 F.2d 164 (5th Cir. 1992) (Rule 4(b) applies where movant’s liberty interests implicated)
- Holland v. United States, 214 F.3d 523 (4th Cir. 2000) (distinguishing civil vs criminal proceedings for disclosure requests)
- In re Special Grand Jury 89-2, 450 F.3d 1159 (10th Cir. 2006) (grand jury secrecy compared to protective-order confidentiality)