United States v. Smith, 2013 U.S. Dist. LEXIS 177988

Background

Six defendants were charged in a public-corruption prosecution; arrests and a detailed criminal complaint were publicly announced at an April 2, 2013 press conference by the U.S. Attorney.
The Government produced substantial discovery (audio recordings, transcripts, text messages, financial records, seized computer files, warrants/affidavits) primarily on hard drives and indicated more materials would be produced on a rolling basis.
The Government sought a blanket Rule 16(d)(1) protective order to restrict public/media dissemination of discovery to protect third parties and ongoing related investigations; three defendants opposed the application.
The Government submitted an ex parte, in-camera letter describing ongoing related investigations which it said would be jeopardized by public disclosure of certain discovery materials.
The Court found (1) no presumptive public right of access to ordinary discovery, (2) the Government met its burden of showing good cause to protect discovery based on risks to ongoing investigations, but (3) the Government failed to make a detailed showing about specific third‑party privacy harms, so the order would not rest on that ground.
The Court granted a modified blanket protective order (excluding information already public or independently obtained) and preserved defense rights to seek relief or challenge designations as circumstances change.

Issues

Issue	Plaintiff's Argument (Government)	Defendant's Argument	Held
Whether discovery is presumptively open to public/media	Discovery is producible under Rule 16 but may be restricted for good cause to protect investigations and third parties	Discovery should be public because of public interest in corruption prosecutions and to rebut prosecutorial statements	No presumptive public right of access to discovery; protective orders for discovery governed by Rule 16(d)(1) good-cause standard
Whether Government showed good cause to enter a blanket protective order	Public dissemination would alert targets, reveal evidence/methods, and identify cooperators, jeopardizing ongoing investigations	Public has an interest in knowing who is investigated; media already leaked cooperating-witness identity; press conference waived secrecy	Good cause established as to ongoing investigations (based on sealed ex parte submission); blanket protection appropriate given scope of discovery, but order modified to exclude publicly available/independently obtained information
Whether third‑party privacy justifies nondisclosure	Discovery contains references/recordings of uncharged third parties whose reputations could be harmed	Many third parties are public officials with diminished privacy; Government did not identify specific third parties or particular harms	Government’s generalized allegation insufficient; Court declined to base protective order on third‑party privacy without a more particularized showing
Whether defendants are prejudiced by protective order or may use discovery to rebut prosecutor publicity	Protective order will be narrowly tailored and still allow defense preparation; necessary to protect investigations	Blanket order is overbroad, burdensome (signatures, review of who saw materials), and prevents defendants rebutting press statements	Protective order’s burdens are not shown to be prejudicial; defendants may not use public dissemination to counter prosecutorial statements; protective order approved with modifications and ability to seek relief later

Key Cases Cited

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (First Amendment right of access to criminal trials)
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (press and public have constitutional right of access to criminal trials)
Press-Enterprise Co. v. Superior Court (Press-Enter. II), 478 U.S. 1 (1986) (experience-and-logic test for access to proceedings/documents)
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (common-law right to inspect judicial records balanced against countervailing interests)
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (no public right of access to pretrial discovery; protective orders do not implicate same scrutiny as closure of proceedings)
United States v. Alderman, 394 U.S. 165 (1969) (courts may order defendants and counsel not to disclose materials they inspect)
United States v. Amodeo (Amodeo II), 71 F.3d 1044 (2d Cir. 1995) (balancing test for access to judicial documents; weight of presumption depends on role in judicial function)
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (applying experience-and-logic approach to documents)
Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir. 2013) (limits on expanding category of "judicial documents")
In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) (access to written documents submitted in connection with proceedings implicating right of access)
United States v. Haller, 837 F.2d 84 (2d Cir. 1988) (qualified right of access to plea agreements)