Case Information
*1 [12] ‐ [2731]
Newsday v. County Nassau
UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT
August Term, 2012
(Argued: March 2013 Decided: September 23, 2013) Docket Nos. ‐ 2728 ‐ cv, [*] 12 ‐ 2731 ‐ cv
N EWSDAY LLC, N EWS N ETWORKS LLC, Intervenors ‐ Appellants , S HARON D ORSETT , individually Administratrix Estate of J O ’A NNA B IRD ,
Plaintiff , P ETER S CHMITT ,
Non ‐ Party Defendant , — v. —
C OUNTY OF N ASSAU , N ASSAU C OUNTY P OLICE D EPARTMENT , O FFICE OF THE N ASSAU C OUNTY D ISTRICT A TTORNEY , R OBERT A RIOLA , Detective, his official individual capacities, *2 Defendants ‐ Cross ‐ Claimants ‐ Appellees , J OHN AND J ANE D OES ‐ Police Officers and/or Detectives, J OHN AND J ANE D OES ‐ District Attorney,
Defendants ‐ Appellees , P OLICE B ENEVOLENT A SSOCIATION OF THE P OLICE D EPARTMENT OF THE C OUNTY OF
N ASSAU , I NC .,
Intervenor ‐ Appellee , L EONARDO V ALDEZ C RUZ ,
Defendant . [*]
B e f o r e:
L YNCH , L OHIER , C ARNEY , Circuit Judges .
__________________
Intervening proceedings arising out civil rights action below, Newsday LLC News Networks LLC appeal orders United States District Court Eastern District New York (Arthur D. Spatt, Judge ) denying them sealed internal police *3 document and continuing redact parts transcripts. Intervenors argue either First or common law right access courts entitles them inspect both transcripts and sealed police report in full, least with only limited redaction. We conclude First Amendment’s presumptive right applies civil contempt proceedings, this right entitles intervenors copy full transcript the contempt proceeding, but police report sufficiently central proceedings qualify “judicial document” thus trigger Amendment’s presumptive access. case remanded for further consistent opinion.
A FFIRMED part, R EVERSED part, R EMANDED .
Judge Lohier concurs separate opinion.
D AVID A. S CHULZ (Jacob P. Goldstein, brief ), Levine Sullivan Koch & Schulz, LLP, New York, New York, for Intervenors ‐ Appellants. D ENNIS J. S AFFRAN , for John Ciampoli, County Attorney Nassau County, Mineola, New York, for Defendants ‐ Cross ‐ Claimants ‐ Appellees Defendants ‐ Appelles.
S ETH H. G REENBERG , Greenberg Burzichelli Greenberg P.C., Lake Success, New York, Intervenor Appellee.
G ERARD E. L YNCH , Circuit Judge :
This appeal stems ongoing attempts by various news organizations gain access sealed proceedings, transcripts, and discovery documents. Their marked persistence pursuing matter result interest underlying, now ‐ settled, civil suit generated civil contempt action focus constitutional right ‐ ‐ access claims face us on appeal. Despite this complex posture, questions this appeal presents are straightforward. First, does Amendment’s presumptive right access attach civil proceedings related documents? Second, each documents sought, does presumptive require disclosure particular case?
BACKGROUND
I. Underlying Lawsuit
On March Sharon Dorsett filed civil rights suit both her own behalf behalf estate Jo’Anna Bird, her daughter, alleging that various state actors affiliated Nassau County Police Department had negligently contributed Bird’s fatal stabbing her ex boyfriend her *5 child’s father, Leonardo Valdez ‐ Cruz. [1] Bird had obtained several orders of protection against Valdez ‐ Cruz behalf of herself and her child, and those orders were effect during weeks days leading up Bird’s death. For intermittent periods time prior Bird’s death, moreover, Valdez ‐ Cruz was in police custody. Nevertheless, complaint alleged, despite orders and supposed police supervision, Valdez ‐ Cruz “tortured, stalked, menaced, maimed, harassed, annoyed, injured, threatened, mutilated, kidnaped and killed” Bird as a direct result County’s Police Department’s negligence. Compl. ¶ 8. complaint further alleged negligently lax supervision resulted least part Valdez ‐ Cruz’s status police informant. Id. ¶¶ 296.
During course litigation, Dorsett sought various documents from defendants, including an internal police report detailing results an *6 investigation into the matter. This document, which pages long, is styled “Nassau County Police Department Internal Affairs Unit Investigation Report ‐ 2009” (“IAU Report” or “Report”). Defendants eventually produced redacted copy of the Report Dorsett her counsel, did seek place copy under seal. Dorsett objected the extent redactions the Report, magistrate judge (A. Kathleen Tomlinson, Magistrate Judge ) ruled some but all redactions inappropriately concealed information was relevant Dorsett’s claims therefore discoverable by her. II. The Initial Protective Order
After receiving redacted copy IAU Report, Dorsett’s counsel issued press release announcing press conference. The purpose press conference, which held morning December release redacted general public. The day before press conference, defendants moved orally an injunction protective order prohibiting release contents general and requested an emergency motion. magistrate judge heard argument both sides conference call 5:00 p.m. evening before announced press conference. At conclusion hearing, magistrate *7 judge granted defendants’ motion and temporarily restrained and preliminarily enjoined Dorsett’s counsel releasing contents of Report. After that preliminary ruling, parties submitted supplemental briefing appropriateness an extension injunctive relief. Additionally, Newsday LLC and News Networks LLC (collectively, “intervenors” or “press intervenors”) sought, and were granted, leave intervene case for purposes (a) opposing defendants’ motion for an injunction or protective order and (b) moving unseal any motion papers transcripts related IAU Report.
On January magistrate judge considered motions full concluded that defendants had met threshold showing “good cause” required Federal Rule Civil Procedure 26(c) issuance protective order. so finding, magistrate judge rejected intervenors’ argument that was at point “judicial document” therefore concluded that it did trigger common law presumption favor access. Importantly, magistrate judge noted her determination IAU document limited case’s posture time, course discovery motion practice might transform Report *8 into a document – and therefore create a presumption – a later date.
Defendants the underlying lawsuit ultimately reached settlement with Dorsett, but the agreement was contingent upon approval the Nassau County Legislature the Nassau County Interim Finance Authority. Pursuant this clause, defendants sought legislative approval for the $7.7 million payment that settlement called for. Several members legislature, including eventual defendant Peter Schmitt, refused approve such large settlement without reviewing evidence justified it. Those legislators accordingly requested permit them review evidence case, including IAU Report, which still subject magistrate judge’s protective order. On December (Arthur D. Spatt, Judge ) provided Schmitt other legislators IAU Report subject an additional confidentiality order prohibiting them from conveying anyone else information learned exclusively not *9 independently from another source. [4]
Despite protective order, Schmitt made statement during a televised editorial appeared to reveal information contained in Report. Specifically, Schmitt stated:
There 22 police officers in this county who were mentioned confidential Internal Affairs report who ought to be ashamed to look themselves the mirror every morning when they get up shave, much less wearing badge. . . . Orders protection were ignored . . . mandatory arrests were called and performed, giving cell phone prisoner when he behind bars allowing him call victim times, on on. Upon learning Schmitt’s statements, Police Benevolent Association Police Department County Nassau, New York, Inc. (“PBA”) sought intervene then settled civil case enforce court’s December 15, confidentiality order. The granted motion intervene and scheduled consider whether Schmitt contempt confidentiality order. Those civil began May 2012. *10 III. The Contempt Hearing
The began open court but was moved into Judge Spatt’s chambers the request Schmitt’s counsel. At the outset the proceedings, Judge Spatt declined to review a copy the to compare it against Schmitt’s statement, and instead requested the PBA produce a witness to testify to the contents the Report. The PBA asked the witness given a copy “to refresh his recollection,” the district court recessed allow PBA find a witness familiar with contents the Report. When resumed, district court asked, “Is there a request seal courtroom?” Both County PBA said yes. Matthew Chayes, reporter for Newsday who present courtroom, requested time contact newspaper’s counsel object formally closing the courtroom. Frank Eltman, reporter Associated Press, joined the application. declined allow such recess, confirmed that Chayes himself objecting closing courtroom, overruled objection. Counsel press intervenors renewed their objections *11 district court’s staff telephone during the sealed proceedings, but chambers staff declined interrupt the sealed proceedings directed the press intervenors file their objections in writing. sealed continued with the testimony Nassau County
Police Department Assistant Chief Neil J. Delargy, who supervised the Internal Affairs Unit had produced the Report. Delargy allowed review the Report during the course his testimony, two occasions he relied the text the in answering questions. At the conclusion his testimony, granted parties’ request Delargy allowed go through entire confirm number police officers mentioned Report. Then, close PBA’s case, while courtroom still closed, parties made arguments regarding sufficiency evidence prove civil contempt.
Next, courtroom still closed, Schmitt took stand testify his own defense. Schmitt’s testimony tended show information he revealed interview quoted television editorial had been otherwise publicly available. At end Schmitt’s direct examination, court reopened courtroom, having concluded no testimony about contents *12 of the Report would elicited; the courtroom remained open for the remainder of Schmitt’s testimony.
Finally, the once again sealed the courtroom Delargy retook the stand after completing his review of the Report. Delargy testified that members of the Nassau County Police Department were mentioned in and supporting exhibits, and either eighteen or twenty ‐ three of those were mentioned body and summary of Report. At no point during Delargy’s testimony were names ranks of officers revealed, although he did reveal how many police officers mentioned were women. At close Delargy’s testimony, courtroom reopened closing arguments.
That evening, press intervenors filed letter brief formally objecting closing courtroom during hearing. They also sought release transcript all exhibits used during it. district held oral argument intervenors’ requests and, June it *13 rejected them. Dorsett v. County Nassau (“Dorsett IV”), F. Supp. 2d 187 (E.D.N.Y. 2012). The district court concluded that magistrate judge’s original Rule protective order, combined district court’s subsequent confidentiality order, required that large portions contempt hearing transcript, as well as IAU Report, remain under seal. Id. at 96. In deciding protective order required ongoing secrecy, district court assumed without deciding “the Amendment and/or common law right access attache[d] contempt proceedings at issue.” Id. at 193. The district court explicitly relied magistrate judge’s earlier finding good cause in denying intervenors’ application unseal IAU – notwithstanding fact its use at civil contempt might have, intervenors argued, transformed into document. However, after balancing public’s presumptive afforded First common law against interest ongoing confidentiality, concluded significant portions transcript should unsealed. Id. 196. day after rejected intervenors’ requests, held
Schmitt imposed $2500 coercive sanction “in order ensure *14 future compliance by Presiding Officer Schmitt by other legislators have viewed this Report.” Dorsett v. County Nassau (“Dorsett V”), No. CV 10 ‐ 01258, 2012 WL 2076911, at *10 (E.D.N.Y. June 7, 2012). In so holding, district relied its conclusion Schmitt’s comments were fact based on his review Report. Id. *3 6. [7]
press intervenors timely appealed court’s decision keeping transcripts under seal. DISCUSSION
I. Standard Review
We review court’s decision seal proceedings place documents under seal abuse discretion. See United States. v. E. Air Lines, Inc., F.2d 241, 245 (2d Cir. 1991). Additionally, Supreme Court has noted “[e]very has supervisory power over its own records files.” Nixon v. Warner Commc’ns, Inc., U.S. (1978). However, we have also held concerns implicated sealing or documents mandate close appellate scrutiny. such cases, have traditionally *15 undertaken an independent review of sealed documents, despite the fact that such a review may raise factual rather than legal issues. See, e.g., United States v. Aref, F.3d 83 (2d Cir. 2008). We therefore independently examine the and related transcripts due consideration for prerogative of to administer evidence before it. II. Legal Principles
Federal courts employ two related but distinct presumptions in favor of public access proceedings records: strong form rooted in First Amendment slightly weaker form based in federal common law. We must determine whether either of those presumptions applies civil contempt issue in case. Supreme Court has held that First Amendment presumptive right access applies all criminal trials. Richmond Newspapers, Inc. v. Virginia, U.S. 555, 580 (1980). We have extended that principle and held that First Amendment right applies “to civil trials and their related proceedings and records.” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (“NYCTA”), 684 F.3d (2d Cir. 2012). so holding, we have noted that First Amendment “does distinguish between criminal civil proceedings,” but rather “protects public against government’s arbitrary interference with access important information.” Id. (internal quotation marks omitted). Based logic, have held applies, among other things, summary judgment motions documents relied upon in adjudicating them, Lugosch v. Pyramid Co. Onondaga, F.3d (2d Cir. 2006), pretrial motions written documents submitted in connection with courtroom do justify some caution. We therefore respect discretionary decisions judges, who are more familiar issues, parties, and counsel before them, managing before them. Judges (especially appellate judges) deciding whether transcripts can released after fact have benefit hindsight, can determine more clearly whether actual testimony fact disclosed matters appropriately sealed. Thus, finding ex post transcript subject public full does entail conclusion erred excluding courtroom ex ante.
them, re New York Times Co., F.2d 114 (2d Cir. 1987), and docket sheets, Hartford Courant Co. v. Pellegrino, F.3d (2d Cir. 2004).
We have applied two different approaches when deciding whether the First Amendment right applies particular material. The “experience ‐ and ‐ logic” approach applies both judicial proceedings and documents, and asks “both whether documents have historically been open press and general public whether public access plays significant positive role functioning particular process question.” Lugosch, F.3d at 120 (internal quotation marks omitted). second approach – which we adopt only when analyzing documents related judicial proceedings covered by First Amendment right – asks whether documents issue “are derived necessary corollary capacity attend relevant proceedings.” Id. (internal quotation marks alteration omitted).
Under experience ‐ logic approach, civil proceedings, which carry threat coercive sanctions, implicate values. As have noted related context common law access, need for public grounded “need for federal courts . . . have measure accountability have *18 confidence in administration justice.” United States v. Amodeo (“Amodeo II”), 71 F.3d 1048 (2d Cir. 1995). This observation applies special force context contempt proceedings, which, although civil in nature, carry the threat coercive sanctions seek to enforce court’s own orders. At least one our sister circuits has considered issue concluded presumptive right applies such proceedings. See In re Iowa Freedom Info. Council, F.2d 661 (8th Cir. 1983) (“[T]he protection First Amendment extends proceedings contempt, a hybrid containing both civil criminal characteristics.”). We therefore conclude First Amendment right applies civil contempt proceedings.
However, decide whether First Amendment right applies judicial documents implicated civil proceedings – opposed proceedings themselves – courts must engage case specific inquiry determine whether those documents “derived [are] necessary corollary capacity attend” proceedings, Lugosch, F.3d at 120 *19 (alteration original). Only those documents necessary to understand merits civil proceeding are covered by First Amendment’s presumptive right access.
Even when it applies, moreover, First Amendment right creates only a presumptive right access. As have noted, “[w]hat offends First Amendment is attempt [exclude public] without sufficient justification,” NYCTA, F.3d at simple act exclusion itself. Thus, presumptive right prevails unless is overcome “specific, ‐ record findings sealing is necessary preserve higher values and only if sealing order is narrowly tailored achieve aim.” Lugosch, 435 F.3d at 124. Broad, general, conclusory findings insufficient justify closure. In re New York Times Co., F.2d 116.
In contrast right, common law right attaches different weight depending two factors: (a) “the role material at issue exercise Article III power” (b) “the resultant value of such information those monitoring federal courts.” Amodeo II, F.3d at 1049. addition weight afforded presumptive right access, common law balanced against countervailing interests favoring secrecy. *20 Because these differences between common law First Amendment right, is necessary keep two standards conceptually distinct when analyzing particular proceeding document. Here, we apply only the standards, which apply proceeding more favorable appellants.
II. Application
A. Hearing Transcript
The transcript proceeding is so closely related ability attend proceeding itself maintaining secrecy is appropriate only if closing the courtroom was appropriate. [10] The district court’s decision keep parts the transcript under seal was supported findings contained its order June 2012. Dorsett IV, F. Supp. 2d 193 ‐ 96. The court relied primarily one broad category countervailing factors: “whether public *21 access materials at issue is likely impair in material way the performance of Article III functions.” Dorsett IV, F. Supp. 2d at quoting Amodeo II, F.3d 1050. The district court concluded that because had an interest in enforcing its own confidentiality order, because opening contempt hearings would put district courts absurd position of either maintaining secrecy of underlying materials undermining their own protective orders, Amendment right outweighed case. Nevertheless, conducted thorough review reduced the extent of redaction transcript after determining that much of testimony did reveal any confidential information.
After conducting our own independent review hearing transcript, conclude court’s concerns do outweigh public’s First presumptive proceedings. No portion transcript reveals information sufficiently confidential its disclosure would impair any material way performance Article III functions. portions transcript remain redacted after Judge Spatt’s order reveal only information about date Report, number police officers mentioned it, how many those officers were female. None of *22 these bits information raises significant confidentiality concerns that would in themselves warrant sealing courtroom transcript. We therefore conclude that district erred concluding that First Amendment right defeated in this instance.
We note we are presented situation in which hearing transcript did in fact contain significant confidential material. There may be circumstances in which proceeding will turn specific confidential facts. We also note there several ways courts may structure such minimize likelihood disclosure. For example, will often possible case such one enter stipulation concerning the statements made contents confidential documents. Absent such an agreement, courts may limit questioning address only whether information stated publicly fact contained confidential materials.
Because we conclude nothing portions transcript that remain redacted presents confidentiality concerns outweigh public’s First Amendment right proceedings, direct *23 release a full, unredacted copy transcript. [13]
B. IAU Report
In concluding IAU should remain sealed, district court relied on magistrate judge’s prior finding good cause connection with defendants’ motion for a Rule 26 protective order. However, facts necessary show good cause a protective order applicable to discovery documents that yet implicated judicial will necessarily meet higher threshold imposed by respect documents. See re Midland Nat’l Life Ins. Co., 686 F.3d 1115, 1120 (9th Cir. 2012); Union Oil Co. Cal. v. Leavell, 220 F.3d 568 (7th Cir. 2000); Rushford v. New Yorker Magazine, Inc., F.2d (4th Cir. 1988) (“[D]iscovery [subject protective order] stands wholly different footing than does a motion filed by party seeking action by court.”). district court therefore erred by relying solely prior finding good cause determine First *24 Amendment right did not apply or outweighed countervailing factors. It does not follow, however, that the Report must be made public. We must conduct an independent review of Report to determine (a) whether is a judicial document which right applies, and, if so, (b) whether access defeated in this case. independently reviewing record, determine degree judicial
reliance document in question relevance document’s specific contents nature proceeding. Here, course, entire contempt proceeding was, some sense, about Report. But itself is sufficient find Report a judicial document. mere fact that a dispute exists about whether a document should sealed disclosed, or a party seeks sanction another party disclosing portions sealed document, cannot ipso facto create presumption access. As recognized, such rule would bootstrap materials closely related judicial into documents.
We focus rather use made, parties could reasonably have been expected make, connection proceeding, order determine whether would *25 materially assist the public in understanding the issues before the court, and in evaluating the fairness and integrity the court’s proceedings. Our examination the record leads inexorably the conclusion that the substance of the full Report was not significantly relied upon or at issue in the contempt proceeding. Significantly, the Report did not need be, was not, entered into evidence, nor did court rely any portion Report that was not testified about open court. Indeed, Judge Spatt declined proposal that he read full Report. Schmitt was charged disclosing certain limited information contained Report, issue before was whether information he disclosed indeed derived from Report. Thus, only contents relevant contempt were those that Schmitt revealed during television interview. It would absurd conclude that in order determine whether someone violated court’s order disclosing one two details lengthy, sensitive document, a must place into record entire document including other confidential material had been disclosed issue proceeding. [14] *26 The Report utilized during only as a reference for Delargy to refresh his recollection during his testimony. That use, intervenors argue, raises it to level of a judicial document. We disagree. As police officer most directly responsible for its preparation, Delargy testified a witness with personal knowledge of Report. Only his testimony, and not material used to refresh his recollection, could relied by deciding the contempt application. Delargy’s use a copy Report during his testimony therefore analogous a police officer’s review his notes prior testifying
We conclude that the Report, it was used or as it could be expected to be used in the hearing, is not the type of judicial document to which the judicial decision making, since the public is ordinarily entitled to review such material order to understand evaluate the actions of the courts. For that reason, the category of “judicial documents” should not readily expanded. fact that a document is relevant to the subject matter of a judicial proceeding, or that the proceeding some way stimulated by the document, does not make it public.
Unlike Judge Lohier, conclude that the fact that the court avoided “‘relying’ the Report by not reading it” (Concurring opinion, post, at 2), where the never put into evidence, underscores why the Report is not a judicial document. Parties entitled to litigate issues that divide them, if they can fairly do so, without thereby exposing to public view confidential materials. A party may wish, for purposes advancing its litigation position, to introduce a confidential document into evidence, attach it to a brief or other submission, or take a position that entitles its adversary put that document into evidence. those circumstances, the party is faced with the hard choice of either foregoing reliance the document or submitting the document and seeking a order placing the document under seal or closing the related proceedings. Choosing the latter path unavoidably entails risking the possibility that may find that the strict standards sealing documents or closing proceedings have been met. But when party chooses not rely on documents or other confidential information court, fact information sufficiently relevant it could have been introduced into evidence does entitle press or public demand access it or put courts burden evaluating whether strict standards for rebutting presumption public access have been met. It makes no difference regard whether party initially devised such strategy adopted it at suggestion court; choice remains litigant.
Finally, fact “was already part record in connection obtaining protective order” (Concurring opinion, post, 1), cannot change analysis. A document cannot become subject presumption reason parties’ efforts keep confidential during discovery process.
First Amendment right attaches. There thus no presumption access Report, well within its discretion declining unseal it.
CONCLUSION
Accordingly, conclude erred declining order release full transcript hearing, but given minimal relevance portions were testified contempt hearing substance proceeding, did become judicial document which applies. We therefore AFFIRM as Report, REVERSE transcript, REMAND further consistent opinion. *29 L OHIER , Circuit Judge , concurring:
Based the record case, I conclude the IAU Report prepared the police department’s internal investigation unit is a judicial document entitled a presumption access. Even so, the balance interests counsels favor keeping Report sealed.
Here, parties offered submit Report District Court its review; indeed, Report already part record connection with obtaining protective order. Joint App’x 374 75, 390. But District Court decided instead have a witness testify about contents Report. my view, court’s efforts were enough transform into something other than judicial document, which have variously described an item “must relevant performance judicial function useful in judicial process,” United States v. Amodeo, F.3d 145 (2d Cir. 1995) (“Amodeo I”), contents which central court’s determination of party’s “substantive legal rights,” United States v. Amodeo, F.3d (2d Cir. 1995) (“Amodeo II”); Lugosch v. Pyramid Co. Onondaga, F.3d 110, (2d Cir. 2006). Keeping description mind makes it relatively easy for me conclude document: although never *30 filed, its contents were central the District Court’s determination Schmitt’s “substantive legal rights” the contempt proceeding. See United States v. Graham, F.3d (2d Cir. 2001) (common law applies documents “relevant the performance the judicial function useful in judicial process,” regardless “whether they were formally admitted as evidence” filed).
That District Court never directly reviewed Report hardly negates conclusion, any more than ignoring an elephant room eliminates elephant. To contrary, court’s efforts avoid “relying” on Report by reading simply underscore why Report document. During contempt proceeding, parties referenced Report, while Assistant Chief Neil Delargy, significant witness during hearing, reviewed Report refresh his recollection then testified about Report’s contents. short, based on Amodeo I Amodeo II, I have hard time viewing proceeding as adjudicating whether Schmitt’s disclosures were based without relying part itself do so. As majority opinion acknowledges, “the entire proceeding was, some sense, about Report.” Majority Op. 24.
Although, judicial document, should have triggered a presumption access, does not end story. There remains a concomitant need balance competing interests before can be unsealed. On this point, although District Court did engage in this precise balancing test, I believe are equipped engage in it ourselves based developed record. balance relevant interests involves, on one hand, public’s interest having information needs “monitor[] federal courts” their exercise Article III judicial power, Amodeo II, 71 F.3d at and, other hand, law enforcement privilege individual privacy interests, id. at 51; Amodeo I, F.3d at 147. Like majority, I am persuaded public’s interest scrutinizing District Court’s contempt determination only very minimally furthered releasing Report, particularly since transcript will now be made public. regard I note sealed law enforcement reports historically have been made public merely facilitate scrutiny determination whether someone disclosed their contents violation court’s protective order. See Amodeo II, F.3d (“[T]he weight accorded presumption access” is “stronger” documents “are usually filed are generally available” weaker where they “generally under seal.”). I doubt, *32 moreover, District Court could have meaningfully redacted this particular Report. See Amodeo II, F.3d at 53. Because neither “experience” nor “logic” counsels favor publicizing Report, see Lugosch, F.3d even though document, I agree it should remain sealed would affirm District Court’s judgment basis.
For reason I concur result.
[*] case docket no. ‐ cv withdrawn an order filed on August 2012.
[*] Clerk Court respectfully directed amend official caption in case conform caption above.
[1] Valdez ‐ Cruz also named defendant suit. For purposes this opinion, however, term “defendants” refers police ‐ related defendants excludes Valdez ‐ Cruz.
[2] Valdez ‐ Cruz convicted first ‐ degree murder, second ‐ degree burglary, aggravated criminal contempt, seven counts first ‐ degree criminal contempt, second ‐ degree criminal contempt, fifth ‐ degree criminal possession of stolen property, fourth degree criminal possession weapon. He was sentenced life prison.
[3] Although magistrate judge issued protective order, she did take further step granting an injunction, finding more stringent “irreparable harm” standard Federal Rule Civil Procedure such relief met. magistrate judge also granted intervenors’ motion unseal motion papers regarding injunction protective order.
[4] record does disclose why legislators obtained IAU Report part litigation rather than from County Attorney’s office Police Department pursuant oversight powers County Legislature.
[5] closing courtroom, also excluded reporters from News Associated Press.
[6] On cross ‐ examination, Delargy questioned extensively about exact number police officers mentioned pages that constitute its body summary. He eventually testified one witness’s statement, an additional five police officers were mentioned, witness’s statement appeared body summary Report, bringing total number twenty three.
[7] Schmitt filed timely notice appeal, but withdrew his appeal before filing brief before Court. Schmitt died October 2012.
[8] Although issue of physical courtroom such is moot, question is nevertheless squarely presented us because intervenors seek release transcripts those proceedings, question whether First right applies transcripts is identical whether right applies physical proceedings. We do note one difference, in applicable legal standards but in practical considerations involved applying them. A judge considering whether close courtroom is necessarily engaged an exercise prediction regarding potential disclosure material may justifiably be protected even against presumptive access. That fact does warrant indiscriminate courtroom closure because many cases courts will able identify advance those areas testimony portions in which risk disclosure greater less. But unpredictable vagaries of
[9] Because all cases where First Amendment applies common law right applies fortiori, need address common law right. any event, parties agree applies civil contempt issue.
[10] As noted above, however, even where prudence might have counseled closure ex ante, inquiry concerning release transcript proceeds with benefit hindsight, so release transcript may required even where closing courtroom justified given what might reasonably have been anticipated advance.
[11] made no ‐ record findings before sealing courtroom. That error, albeit error need address further because issue moot.
[12] We do here decide whether specific, ‐ record findings about difficulty undertaking such minimization procedures could serve defeat presumptive access.
[13] Intervenors also argue failed docket various submissions made PBA or defendants. To extent court has failed docket certain filings, direct do so. Of course, district is free, after making requisite findings, place all part such filings under seal, if such sealing justified under standards set forth this opinion.
[14] reaching conclusion, recognize key fact disclosed by Schmitt – approximately twenty two officers were mentioned implicitly criticized – constituted summary number specific
a criminal trial. Such use does not make such notes evidence that is part the trial record, nor does render Report a judicial document First purposes.
[15] statements Report rather than a quotation a discrete sentence within it, and that Delargy reviewed entire order verify number. point remains that Schmitt’s disclosure, and Delargy’s corresponding testimony, disclosed only general fact, additional details were disclosed Schmitt, testified by Delargy, nor relevant proceeding.
[15] We respectfully disagree approach issue taken Judge Lohier ʹ s concurring opinion. Finding document is a ʺ judicial document ʺ triggers presumption public access, requires make specific, rigorous findings before sealing document otherwise denying public access. It not, should be, an easy matter deny documents utilized form part basis of