In Re Providence Journal Co.

United States Court of Appeals
For the First Circuit

Nos. 02-1329
02-1475

IN RE PROVIDENCE JOURNAL COMPANY, INC.,

Petitioner.
____________________

ON PETITIONS FOR WRITS OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.

Howard A. Merten, with whom Gordon P. Cleary and Vetter &
White, Inc. were on brief, for petitioner.
Jerry Elmer and Goldenberg & Muri LLP on brief for Rhode
Island Affiliate — American Civil Liberties Union, amicus curiae.
Lucy A. Dalglish on brief for The Reporters Committee for
Freedom of the Press, American Society of Newspaper Editors, The
Society of Professional Journalists, Radio-Television News
Directors Association, and Newspaper Association of America, amici
curiae.
William L. Patton, with whom Joan McPhee, Michele T. Perillo,
and Ropes & Gray were on brief, for respondent (Hon. Ernest C.
Torres).

June 12, 2002
 SELYA, Circuit Judge. This proceeding is an outgrowth of

the widely publicized political corruption case brought by the

federal government against Providence mayor Vincent A. ("Buddy")

Cianci, Jr., and several codefendants. During the trial, a daily

newspaper filed serial mandamus petitions seeking to remediate

perceived violations of First Amendment and common-law rights of

access to documents, videotapes, and other materials that comprise

part of the court record. These petitions present, in essence,

three important questions (some of novel impression).

The first question pertains to public access to memoranda

of law that counsel are required by local rule to submit in

connection with motions. These memoranda contain the substance of

a movant's argument or a nonmovant's opposition: pertinent facts,

case law, statutory references, and legal reasoning. As to this

question, we conclude that the District of Rhode Island's

longstanding practice of refusing to place these memoranda in the

case file, available for public perusal, violates the First

Amendment. The second question pertains to the manner in which the

district court has handled such memoranda in the Cianci case. We

uphold most — though not all — aspects of the praxis employed by

the district court. The third question involves the newspaper's

request for copies of videotape and audiotape evidence introduced

at the trial. Given the circumstances, we conclude that the

-2-
district court's refusal to accede to this request did not

constitute an abuse of discretion.

I. BACKGROUND

Although the two petitions share a common nucleus of

operative fact, they constitute discrete requests for relief.

Accordingly, we describe each petition separately.

A. The First Petition.

On April 2, 2001, a federal grand jury indicted Mayor

Cianci, along with five other individuals, on a variety of charges.

The linchpin of the indictment was a RICO conspiracy count that, in

effect, charged the defendants with operating City Hall as a

racketeering enterprise that demanded bribes, sometimes thinly

disguised as "campaign contributions," as a prerequisite to doing

business with the municipality and its agencies. The indictment

itself came as no surprise: some details of the federal probe,

dubbed "Operation Plunder Dome," had surfaced earlier, and a number

of other persons already had been indicted on related charges.

Both before and after the Cianci indictment, Operation

Plunder Dome received pervasive publicity. During the grand jury

investigation that culminated in this indictment, leaked

information proved to be a persistent problem. To cite one

example, a local television station broadcast a videotape that had

been presented to the grand jury as evidence. To cite another, an

-3-
Assistant United States Attorney (AUSA) played an FBI surveillance

tape for several of his friends.

The Cianci indictment brought heightened attention to the

scandal. Determined to ensure the protagonists' right to a fair

trial, the district court sanctioned the wayward AUSA, appointed a

special prosecutor to investigate whether criminal contempt charges

should be brought against whomever was responsible for the grand

jury leaks, and reminded counsel of their obligation to refrain

from publicly disseminating information that threatened the

integrity of the upcoming trial. See D.R.I. R. 39 (precluding

release of information if there exists a "reasonable likelihood

that it imposes a serious and imminent threat of interference with

a trial or action"); R.I. R. Prof'l Conduct, R. 3.6 (precluding

extrajudicial statements that have a "substantial likelihood of

materially prejudicing an adjudicative proceeding").

The capstone of the court's efforts was the issuance, on

May 15, 2001, of a non-dissemination order. Citing the "intense

media coverage" surrounding the Cianci case, the court foresaw "a

substantial risk of prejudicing the parties' right to a fair

trial." To diminish that risk, the court prohibited the

dissemination of, inter alia, any information regarding the

testimony, character, credibility, or reputation of any witness;

any information presented to the grand jury; and any information

concerning plea negotiations. The order (which contained an

-4-
exception for information "presented at trial or during the course

of any hearing conducted in open court") was to remain in effect

pending the disposition of all charges against all defendants.

In the same order, the court instituted a procedure with

respect to the filing of any documents that might contain

references to restricted information. Each such document was to be

filed under seal, accompanied by a separate descriptive document

that, inter alia, stated the reasons why the submitted document

should be sealed. The court, acting sua sponte or on the motion of

any party, could order any document to be unsealed if it determined

that, notwithstanding any references to restricted information,

insufficient justification existed for keeping that document

confidential.

On May 23, 2001, the district court issued an order

amending this procedure (we henceforth refer to the May 15 order,

as modified by the May 23 order, as the non-dissemination order).

The May 23 order changed the ground rules in three respects.

First, counsel were instructed to refrain from making any reference

to restricted information in motions or oppositions to motions.

Second, the author of any legal memorandum submitted in connection

with a motion was directed to file a certification as to whether

the memorandum contained information subject to the non-

dissemination order. Third, the order stated that if the court's

subsequent review of any particular legal memorandum revealed that

-5-
the memorandum contained no restricted information, it would be

placed on file in the clerk's office and made available for public

inspection. The order made clear, however, that the court would

not undertake to "redact or edit any memorandum."

The district court's treatment of legal memoranda in the

Cianci case represented a departure from the prevailing practice in

the District of Rhode Island. Although the court's local rules

seem to provide for the filing in the clerk's office of legal

memoranda supporting or opposing motions, see D.R.I. R. 12(a)(1)-

(2), the District of Rhode Island has a longstanding practice —

dating back to the early 1980s — of docketing such memoranda but

not placing them in the case files maintained by the clerk's

office. Instead, they are transmitted directly to the judge to

whom the case is assigned and kept in the judge's chambers

(inaccessible to public scrutiny except upon request). We discuss

the propriety of this practice infra.

The Cianci case generated a blizzard of paper, and

numerous documents were submitted to the court in accordance with

the procedures established by the non-dissemination order. The

state's major newspaper, THE PROVIDENCE JOURNAL (THE JOURNAL ), chafed

under this regime. On February 19, 2002, THE JOURNAL filed a motion

seeking access to 42 previously filed memoranda that it claimed had

-6-
not yet been made public.1 In the same motion, THE JOURNAL sought

further modifications of the non-dissemination order, asserting

that the district court's general practice of denying access to

legal memoranda reversed the presumption of openness applicable to

judicial records. THE JOURNAL implored the court to deem all such

memoranda public when filed unless, in a particular instance, a

motion to seal was docketed and the court, after individualized

inquiry, made specific record findings justifying confidentiality.

THE JOURNAL also asked the court to consider redaction on a document-

by-document basis as a less restrictive means of balancing the need

for confidentiality against the public's right to know.2

Shortly before the start of trial, the district court

denied virtually all of THE JOURNAL 's requests. See United States

v. Cianci, Crim. No. 00-083-T, slip op. at 14 (D.R.I. Mar. 15,

2002) (unpublished) [hereinafter "D. Ct. Op."]. After outlining

1
This was not THE JOURNAL 's first expression of dissatisfaction
with the district court's handling of access to documents in the
Cianci case. THE JOURNAL earlier had sought access to an FBI agent's
affidavit submitted in support of a request for a search warrant.
Based upon its determination that public disclosure of the
affidavit's contents prior to trial would prejudice the defendants'
Sixth Amendment rights, the district court denied THE JOURNAL 's
motion. United States v. Cianci, 175 F. Supp. 2d 194, 198, 205
(D.R.I. 2001).
2
Although the non-dissemination order applied to more than
legal memoranda (e.g., it imposed stringent restrictions on
extrajudicial statements by the parties and their counsel), THE
JOURNAL has only challenged the order insofar as it pertains to the
treatment of legal memoranda. Consequently, we express no opinion
anent any other feature of the non-dissemination order.

-7-
the traditional treatment of legal memoranda in the District of

Rhode Island, id. at 1-4, the court described the special

procedures that it had instituted in the Cianci case and noted that

11 of the 42 memoranda at issue already had been placed on file in

the clerk's office, id. at 4-5. Of the remaining 31 memoranda, 17

(related to discovery motions) had been referred to a magistrate

judge; 3 dealt with mundane matters that the court believed were of

no conceivable interest to THE JOURNAL ; and the final 11 could not

"properly be made part of the public record before trial" because

they referred to "grand jury matters and/or matters, the

dissemination of which would prejudice the parties' rights to a

fair trial." Id. at 6-7.

The district court then denied most aspects of THE

JOURNAL's request to modify the non-dissemination order. The court

characterized its treatment of legal memoranda in the Cianci case

as "perfectly consistent" with THE JOURNAL 's proposal to make all

legal memoranda public unless otherwise directed by the court. Id.

at 9. It rejected the suggested reinstitution of formal motions to

seal on the ground that the suggestion already had proven

unworkable. Id. Relatedly, the court expressed its unwillingness

to rely exclusively on counsel's representations in determining

whether to place legal memoranda on file in the clerk's office.

Id. at 11-12. The court reiterated that redaction was infeasible

both because the forbidden matters were "almost invariably

-8-
dispersed throughout the memoranda and inextricably intertwined

with the references to applicable legal authority," and because the

mechanics of redaction would squander scarce judicial resources.

Id. at 13. Finally, the court agreed to amend the non-

dissemination order to furnish a specific, on-the-record finding in

support of any subsequent decision to withhold a particular

memorandum. Id. at 14.

Trial commenced on March 23, 2002. Two days later, THE

JOURNAL filed a mandamus petition with this court seeking: (1)

access to legal memoranda previously submitted in the Cianci case

but not yet made public; (2) a directive requiring all future

memoranda to be placed on file in the clerk's office on the date of

submission; and (3) modification of the non-dissemination order to

require redaction when feasible (as a less restrictive alternative

to sealing).

B. The Second Petition.

The second mandamus petition centers on 71 videotapes and

audiotapes of secretly recorded conversations with various

bureaucrats (including some of the defendants). Putting this

petition into perspective requires an understanding of how the

parties presented these videotapes and audiotapes during the Cianci

trial.

In preparation for trial, the government transferred the

entire contents of the 71 tapes onto CD-ROMs. After loading the

-9-
CD-ROMs onto the hard drive of a laptop computer, the government

employed a software program called Sanctions to excerpt

conversations for playback. Using this technology, the government

introduced selected passages from these conversations into evidence

in the course of trial. As the excerpts were played on the

government's laptop computer, they were simultaneously broadcast

via the district court's state-of-the-art audiovisual system to

monitors in both the courtroom and a remote viewing room (the

overflow room). As a taped excerpt was played, a transcript was

simultaneously scrolled across the bottom of the screen.

Before trial, the media sought copies of the videotape

and audiotape evidence. Discussions ensued between representatives

of the press and David DiMarzio, the clerk of court, regarding

possible methods by which the tapes could be copied and distributed

to the media after they had been introduced into evidence. The

clerk initially suggested that the parties could be required to

submit an extra copy of each tape and the associated transcript for

delivery to the media at an appropriate time. The district court

vetoed this suggestion. Next, the media representatives proposed

that the clerk's office copy the exhibits for the media. The clerk

rebuffed this proposal on the ground that copying might damage the

original tapes. At that point, the negotiations stalled.

Shortly after the trial began, THE JOURNAL moved for access

to copies of the videotape and audiotape evidence. The court held

-10-
a hearing that focused on the practicalities of complying with that

request. THE JOURNAL argued that other courts, in other criminal

trials, had provided copies of taped evidence to the media in one

of three ways: (1) by requiring court staff to copy the tapes; (2)

by requiring the parties to submit duplicates; or (3) by

rerecording the tapes as they were being played to the jury in open

court.

Ruling from the bench, the district court scotched all

three options. The court rejected the first based on concerns

expressed by the clerk. It rejected the second because it was

unwilling to impose upon the parties the "significant undertaking"

of creating and supplying extra copies of the taped evidence. It

rejected the third option based upon the clerk's representation

that there was no feasible way to rerecord the tapes as they were

being played over the court's evidence presentation system. In a

written addendum, the court delineated an additional reason for its

decision:

The recordings being presented are in the form
of audio and video tapes that include not only
the conversations that have been played for
the jury; but, also, additional conversations
that have not and may not be admitted into
evidence. Moreover, the Court is informed
that the same is true with respect to the CD
ROM's being used by counsel. Thus, providing
The Providence Journal with recordings of the
conversations played for the jury would
require both editing and duplication of the
tapes being offered in order to create
something that does not presently exist.

-11-
 On April 26, 2002, THE JOURNAL filed its second petition

for a writ of mandamus. This petition sought to require the

district court to supply the press with copies of all videotape and

audiotape evidence played to the jury during the Cianci trial on a

contemporaneous basis. We consolidated THE JOURNAL 's two mandamus

petitions for hearing. The district judge, through counsel, filed

an opposition to each petition. We heard oral argument while the

Cianci trial was ongoing (the district court sent the Cianci case

to the jury on June 12, 2002).

II. APPELLATE JURISDICTION

There is a threshold question as to whether THE JOURNAL

should be proceeding by appeal or by mandamus. Compare, e.g.,

United States v. Ladd (In re Associated Press), 162 F.3d 503, 507

(7th Cir. 1998) (appeal), with, e.g., Oregonian Publ'g Co. v.

United States Dist. Ct., 920 F.2d 1462, 1464-65 (9th Cir. 1990)

(mandamus). In the circumstances of this case, however, all roads

lead to Rome.

Under the All Writs Act, 28 U.S.C. § 1651, "[a] federal

court of appeals has the power to treat an attempted appeal from an

unappealable (or possibly unappealable) order as a petition for a

writ of mandamus." United States v. Horn, 29 F.3d 754, 769 (1st

Cir. 1994). On this basis, we exercised mandamus jurisdiction in

United States v. Hurley (In re Globe Newspaper Co.), 920 F.2d 88

(1st Cir. 1990). In that case, a newspaper sought access to

-12-
records relating to a criminal trial. The district court rejected

both the newspaper's demand for access and its motion to intervene.

Id. at 90. The newspaper pursued an appeal and simultaneously

petitioned for a writ of mandamus. Id. We declined to decide the

jurisdictional question, but, rather, granted relief under the

aegis of the All Writs Act and dismissed the appeal as moot. Id.

The petitions now before us are of the same general

character as the petition in In re Globe Newspaper Co. Here, as

there, the petitions pose important questions bearing upon the

constitutional and common-law rights of public access to judicial

records in criminal proceedings. Here, as there, the petitions are

consonant with the historic use of mandamus as a means to check

ostensible judicial usurpations of power. See In re Pearson, 990

F.2d 653, 656 (1st Cir. 1993). Because we believe that the issues

raised by THE JOURNAL are worthy candidates for mandamus review, we

exercise our discretion to entertain both petitions under our

mandamus jurisdiction.3

III. THE LEGAL LANDSCAPE

We next discuss the case law concerning rights of access

to judicial records. We begin with first principles.

3
Along with its mandamus petitions, THE JOURNAL prudently filed
a protective appeal. In view of our decision to exercise mandamus
jurisdiction, we will follow the course charted in In re Globe
Newspaper Co., 920 F.2d at 90, and enter a separate order
dismissing that appeal as moot.

-13-
 Courts long have recognized "that public monitoring of

the judicial system fosters the important values of quality,

honesty and respect for our legal system." Siedle v. Putnam Inv.,

Inc., 147 F.3d 7, 10 (1st Cir. 1998) (citation and internal

quotation marks omitted). This recognition has given rise to a

presumption that the public has a common-law right of access to

judicial documents. Nixon v. Warner Communications, Inc., 435 U.S.

589, 597 (1978). This presumptive right of access attaches to

those materials "which properly come before the court in the course

of an adjudicatory proceeding and which are relevant to that

adjudication." FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404,

412-13 (1st Cir. 1987). It follows, then, that the common-law

right of access extends to "materials on which a court relies in

determining the litigants' substantive rights." Anderson v.

Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986).

Apart from the prerogatives attendant to the common-law

right of access to judicial records, the public and the press enjoy

a constitutional right of access to criminal proceedings under the

First and Fourteenth Amendments. Globe Newspaper Co. v. Super.

Ct., 457 U.S. 596, 603-06 (1982); Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 575-80 (1980) (plurality op.). The

constitutional right of access is not limited to the actual trial

itself, but also encompasses most pretrial proceedings. See Press-

Enterprise Co. v. Super Ct., 478 U.S. 1, 11-13 (1986) (Press-

-14-
Enterprise II); In re Globe Newspaper Co., 729 F.2d 47, 52 (1st

Cir. 1984); see also Anderson, 805 F.2d at 11 (collecting cases).

We have held that this constitutional right — which serves to

ensure a "full understanding" of criminal proceedings, thereby

placing the populace in a position "to serve as an effective check

on the system" — extends to documents and kindred materials

submitted in connection with the prosecution and defense of

criminal proceedings.4 Globe Newspaper Co. v. Pokaski, 868 F.2d

497, 502 (1st Cir. 1989) (citation and internal quotation marks

omitted).

Although the two rights of access are not coterminous,

courts have employed much the same type of screen in evaluating

their applicability to particular claims. See, e.g., United States

v. Soussoudis (In re Wash. Post Co.), 807 F.2d 383, 390 (4th Cir.

1986). This overlap is understandable because the jurisprudence

discussing the First Amendment right of access to criminal

proceedings has been derived in large measure from the

jurisprudence that has shaped the common-law right of access. See

Anderson, 805 F.2d at 13.

4
This holding comports with case law from our sister circuits.
E.g., United States v. Biaggi (In re N.Y. Times), 828 F.2d 110, 114
(2d Cir. 1987); United States v. Soussoudis (In re Wash. Post Co.),
807 F.2d 383, 389-90 (4th Cir. 1986). We note, however, that the
Supreme Court has not yet passed upon whether the constitutional
right of access in criminal proceedings extends to judicial
records.

-15-
IV. ANALYSIS: THE FIRST PETITION

The first mandamus petition attacks both the District of

Rhode Island's overall treatment of legal memoranda and the trial

court's handling of those memoranda in the Cianci case. We address

these points separately. First, however, we focus on the

applicable standards of review.

A. Standards of Review.

Despite the common ancestry shared by the two rights of

access, the standards of review referable to those rights differ.

On the one hand, the denial of a claimed right of access under the

common law engenders review for abuse of discretion. Id. at 13.

A district court can abuse its discretion by "ignoring a material

factor that deserves significant weight, relying on an improper

factor, or, even if it mulls only the proper mix of factors, by

making a serious mistake in judgment." Siedle, 147 F.3d at 10.

Since "only the most compelling reasons can justify non-disclosure

of judicial records" that come within the scope of the common-law

right of access, Standard Fin. Mgmt., 830 F.2d at 410 (citation

omitted), this review is more rigorous than garden-variety abuse of

discretion review.

On the other hand, constitutional access claims engender

de novo review. In re State-Record Co., 917 F.2d 124, 127 (4th

Cir. 1990). In such cases, the presumption in favor of access can

only be overcome "by an overriding interest based on findings that

-16-
closure is essential to preserve higher values and is narrowly

tailored to serve that interest." Press-Enterprise Co. v. Super.

Ct., 464 U.S. 501, 510 (1984) (Press-Enterprise I). This last

requirement adds a new dimension and makes the First Amendment

standard even more stringent than the common-law standard. Thus,

courts have tended to employ the First Amendment standard in

situations in which both rights of access are implicated. E.g., In

re Wash. Post Co., 807 F.2d at 390.

Against this backdrop, we turn to the legal memoranda

that parties are required to file in conjunction with motions

submitted in the District of Rhode Island. The local rules specify

that those memoranda must contain the critical elements of the

parties' arguments. See D.R.I. R. 12(a)(1)-(2). It follows that

those memoranda constitute materials on which a court is meant to

rely in determining the parties' substantive rights. In a criminal

case, therefore, they are subject to both common-law and First

Amendment rights of access. Accordingly, we review the district

court's treatment of them under the First Amendment's heightened

standard of review.

B. The Traditional Practice.

The respondent notes, correctly, that legal memoranda in

the Cianci case have been made available to the public so long as

they do not contain restricted information. Building on that

foundation, he argues that the District of Rhode Island's

-17-
traditional method of treating memoranda is not properly before us.

We do not agree.

The district court has made clear that its handling of

legal memoranda in the Cianci case represents an ad hoc exception

to the District of Rhode Island's standard practice. Absent

mandamus review, the constitutional questions stemming from this

standard practice — a practice that amounts to a blanket nonfiling

policy — are likely to recur and to evade effective resolution.

Moreover, an immediate adjudication of the matter will clarify

matters for judges, litigants, lawyers, and journalists in a wide

range of cases.

On suitable occasions, we have employed advisory mandamus

to resolve issues "which are both novel and of great public

importance." In re Recticel Foam Corp., 859 F.2d 1000, 1005 n.4

(1st Cir. 1988). The considerations enumerated above lead us to

conclude that the blanket nonfiling policy is a suitable candidate

for advisory mandamus. E.g., Schlagenhauf v. Holder, 379 U.S. 104,

109-12 (1964); Horn, 29 F.3d at 769-70.

Having concluded that we have an institutional interest

in oversight of the District of Rhode Island's standard practice

vis-à-vis the handling of legal memoranda, we turn to the validity

of that practice. Motions and objections filed in the District of

Rhode Island typically become part of the case file (and, thus,

available for public inspection) at the moment they are filed in

-18-
the clerk's office. Legal memoranda submitted in conjunction with

such motions are treated differently: those memoranda do not

become part of the case file, but, rather, go directly to the judge

to whom the case is assigned. This leaves the question of access

solely in the discretion of the trial judge and places on persons

desiring access the onus of initiating action. Whether viewed as

a restriction on access or as a practical inconvenience, this

protocol reverses the constitutional presumption of public access

to documents submitted in conjunction with criminal proceedings.

Cf. Pokaski, 868 F.2d at 507 (indicating that a statute that

restricts public access to judicial records in criminal cases by

"plac[ing] on the public the burden of overcoming inertia" is

impermissible).

The respondent attempts to justify the blanket nonfiling

policy on five bases. First, the legal memoranda are directed to

the judge. Second, and relatedly, routing memoranda directly to

the judge's chambers lessens the need for the judge to requisition

the entire case file. Third, incorporating memoranda into the case

files maintained in the clerk's office would "needlessly burden

. . . already taxed storage facilities." Fourth, a blanket

nonfiling policy serves to discourage overzealous counsel from

attempting to gain an "unfair tactical advantage" by improperly

influencing the public. Finally, memoranda submitted in connection

with criminal proceedings might disclose grand jury testimony or

-19-
refer to other matters prejudicial to a defendant's right to a fair

trial. None of these reasons justify the constitutional intrusion

that results from the District of Rhode Island's standard practice

of treating legal memoranda as presumptively nonpublic.

The respondent's first asserted justification proves too

much. Although legal memoranda are directed to the judge, so are

virtually all the other papers filed in the case (including motions

and objections). The second asserted justification is no

justification at all: requiring legal memoranda to be filed in the

clerk's office would not mean that the judge would have to haul the

entire case file into chambers whenever he or she wished to check

a particular point. Copying is a routine exercise in most clerks'

offices, and at any rate the district court's local rules require

counsel to file memoranda in duplicate. See D.R.I. R. 12(d). That

would permit placing one copy in the case file and routing the

other directly to the judge.

Nor does the third asserted justification withstand

scrutiny. While storage limitations may well have prompted the

adoption of the blanket nonfiling policy two decades ago, the

recently-completed renovation of the Federal Courthouse in

Providence, coupled with the court's acquisition of the adjacent

Pastore Building, have eliminated any intractable problem in that

regard.

-20-
 We are equally unpersuaded that the court's policy of

keeping all legal memoranda hidden from public view is warranted

based upon hypothetical concerns about overzealous counsel behaving

badly. Judges deal every day with the need to ensure that lawyers

play fair and square, and we are unwilling to assume, without hard

evidence, that lawyers who practice in the District of Rhode Island

are so unruly that ordinary antidotes to fractiousness (e.g.,

sanctions, contempt, loss of the right to practice) will prove

impuissant.

As to the district court's fifth concern, we acknowledge

that specific cases may pose greater risks of prejudicial

disclosures (and, thus, may warrant special treatment). But there

is no need to discard the baby with the bath water. Safeguards

against prejudice can be implemented on a case-specific basis.

Where a particularized need for restricting public access to legal

memoranda exists, that need can be addressed by the tailoring of

appropriate relief. As contrasted with the District of Rhode

Island's existing practice of treating all legal memoranda as

presumptively nonpublic, this would be a considerably less

restrictive, but equally effective, means for dealing with the

specter of potential prejudice. Cf. Pokaski, 868 F.2d at 506-07

(rejecting blanket sealing rule on ground that case-by-case

evaluation of defendants' sealing requests represented a viable

less restrictive means).

-21-
 We hold, therefore, that the District of Rhode Island's

blanket nonfiling policy — its standard practice of refusing to

place memoranda submitted in conjunction with motions on file in

the clerk's office when tendered — violates the First Amendment.5

C. The Procedure Employed Here.

In the Cianci case, the trial court deviated from the

District of Rhode Island's blanket nonfiling policy. Thus, its

methodology invites a separate analysis.

The constitutional right of public access is a qualified

right that may be outweighed by competing interests in a given

case. Press-Enterprise I, 464 U.S. at 511 n.10; In re Globe

Newspaper Co., 729 F.2d at 52. Certainly, in a case in which

public attention is quite high, a court deliberating about whether

to restrict broadly public access to materials submitted in

connection with criminal proceedings ordinarily ought to afford

interested parties an opportunity to be heard on the question of

impoundment. See, e.g., United States v. Antar, 38 F.3d 1348, 1361

n.18 (3d Cir. 1994). The court would normally be expected to

5
Although the Supreme Court has not established whether the
constitutional right of access attaches to civil cases in general,
the common-law right of access extends to judicial records in civil
proceedings. Standard Fin. Mgmt., 830 F.2d at 408 & n.4. As said,
that right encompasses legal memoranda. Because none of the
respondent's rationales for rendering legal memoranda presumptively
nonpublic rise to the level of a compelling reason sufficient to
justify the nondisclosure of those documents, our invalidation of
the District of Rhode Island's blanket nonfiling policy vis-à-vis
legal memoranda applies in civil as well as criminal proceedings.

-22-
identify and balance the competing interests involved, and weigh

reasonable alternatives to sealing, making findings where

necessary. In re State-Record Co., 917 F.2d at 127-29; In re Wash.

Post Co., 807 F.2d at 391.

Here, THE JOURNAL has not complained about a lack of

notice, so we turn to the task of identifying and balancing the

competing interests involved. The district court clearly

registered its concern that the unrestrained disclosure of certain

types of information about the Cianci case would create a

substantial risk of prejudicing the parties' right to a fair trial.

This disquietude impelled the court to implement, and then fine-

tune, the non-dissemination order. An accused's Sixth Amendment

right to a fair trial plainly rises to the level of a compelling

interest. See Press-Enterprise I, 464 U.S. at 508. When that

right collides head-on with the public's right of access to

judicial records, the defendant's fair trial right takes

precedence. In re Globe Newspaper Co., 729 F.2d at 53.

That does not mean, however, that the public's (and the

media's) right to know can be frustrated by the mere invocation of

a threat to the accused's Sixth Amendment right to a fair trial.

A court faced with an impending collision between these rights

must, on a case-specific basis, construct a balance. Press-

Enterprise I, 464 U.S. at 510-11 & n.10. That weighing must

proceed on the assumption that restrictions on access to

-23-
presumptively public judicial documents should be imposed only if

a substantial likelihood exists that the accused's right to a fair

trial will otherwise be prejudiced. Press-Enterprise II, 478 U.S.

at 14. We caution that this inquiry requires specific findings;

the First Amendment right of public access is too precious to be

foreclosed by conclusory assertions or unsupported speculation.

United States v. Kirk (In re Memphis Publ'g Co.), 887 F.2d 646,

648-49 (6th Cir. 1989); In re Wash. Post Co., 807 F.2d at 392-93 &

n.9; United States v. Martin, 746 F.2d 964, 972 (3d Cir. 1984).

Political corruption cases tend to attract widespread

media attention, and the Cianci case is a paradigmatic example.

Here, moreover, the district court cited book and verse,

cataloguing specific incidents that fueled its concerns that the

defendants' ability to receive a fair trial was in danger of being

substantively compromised by unrestrained disclosures. The court

alluded specifically to leaks of information in violation of Rule

6(e) of the Federal Rules of Criminal Procedure and misbehavior by

the lead prosecutor. In view of the notoriety of the case and the

incidents recounted by the district court, we are convinced that

the court's perception of a threat to the defendants' fair trial

rights was objectively reasonable. See Gannett Co. v. DePasquale,

443 U.S. 368, 392-93 (1979) (concluding that the trial court

properly appraised legitimate concerns that open proceeding posed

-24-
reasonable probability of prejudice to defendants' fair trial

rights).

Having found that the defendants' fair trial rights

represent a compelling interest, we next must decide whether the

non-dissemination order is drawn as narrowly as practicable. The

threshold question is whether a trial court, in a particular case,

can adopt a procedure that reverses the presumption of public

access and automatically seals all subsequent filings until the

judge determines that a specific document poses no undue risk to

the defendant's fair trial rights.

THE JOURNAL argues that the decision in Associated Press

v. United States Dist. Ct., 705 F.2d 1143 (9th Cir. 1983), requires

that this question be answered in the negative. In that case, the

district court, responding to extensive press coverage of a high-

profile criminal matter, issued a sua sponte order directing the

parties to submit all future filings under seal in order to permit

the court "to initially review them and to make a determination

with regard to disclosure." Id. at 1144. The trial court

subsequently imposed a 48-hour time limit within which it would

rule upon the need for a given filing to remain sealed. Id. at

1145. The Ninth Circuit nonetheless struck down the procedure and

directed the district court to vacate its order. Id. at 1147.

In our view, Associated Press is a horse of a different

hue. There, the court of appeals concluded that the trial court

-25-
had failed to make specific findings showing that "access to

pretrial documents will create a substantial probability of

irreparable damage to defendants' fair trial rights." Id. at 1146.

The presence of such findings here readily distinguishes this case.

We find more helpful the opinion in United States v.

McVeigh, 119 F.3d 806 (10th Cir. 1997). There, the court

acknowledged that a high-profile criminal case may "impose[] unique

demands on the trial court, and require[] the court to establish

procedures for dealing effectively, efficiently and fairly with

recurring issues such as whether documents should be placed under

seal or redacted." Id. at 813. This is exactly what transpired

here. In response to a cognizable threat to the defendants' Sixth

Amendment rights, the district court adopted a practical procedure

that enabled it effectively and efficiently to safeguard those

rights. Nothing in the case law prevents a court from establishing

this sort of prophylaxis. And given the circumstances of this

case, the district court's implementation of a general procedure to

seal all memoranda temporarily appears narrowly tailored.

Turning our attention to the specifics of the non-

dissemination order, we hold that the district court's insistence

on reviewing each memorandum before deciding whether it should

remain under seal did not constitute reversible error. Although we

question the court's apparent reluctance to rely on counsel to

separate wheat from chaff in accordance with the non-dissemination

-26-
order — experience teaches that most lawyers will cooperate with

the court and, in all events, will be loath to defy a court order

— nothing precludes the district court from assuming that burden.

This does not mean that we regard the non-dissemination

order as a textbook model. We have four specific concerns. First,

where, as here, a court undertakes to screen documents before they

are placed in the case file, the procedure should incorporate a

specific timetable obligating the court to perform its self-imposed

screening responsibilities promptly and to render a timely decision

as to whether a particular document is fit for public disclosure.

Second, and relatedly, the court below decided to refrain from

reviewing each individual memorandum to decide whether it could be

made available to the public until after the time had expired for

the submission of any possible reply memorandum. This

unnecessarily prolongs the process. Each individual memorandum

either contains restricted information (in which case it is subject

to redaction or sealing) or it does not (in which case it does not

pose a threat to the defendants' Sixth Amendment rights). Third,

the order contains no provision as to whether the court intends to

unseal retained memoranda at some point after the trial has ended

(and if so, when).

Finally, we think that the district court's refusal to

consider redaction on a document-by-document basis is

insupportable. Courts have an obligation to consider all

-27-
reasonable alternatives to foreclosing the constitutional right of

access. In re Globe Newspaper Co., 729 F.2d at 56. Redaction

constitutes a time-tested means of minimizing any intrusion on that

right. See United States v. Amodeo, 44 F.3d 141, 147 (2d Cir.

1995) (stating "that it is proper for a district court, after

weighing competing interests, to edit and redact a judicial

document in order to allow access to appropriate portions of the

document"); see also United States v. Biaggi (In re N.Y. Times),

828 F.2d 110, 116 (2d Cir. 1987) (rejecting "wholesale sealing" of

papers partly because "limited redaction [might] be appropriate").

Here, moreover, our ability to assess whether the

district court was justified in refusing to redact the 11 documents

that remain sealed is hampered by a lack of specific findings. See

In re Globe Newspaper Co., 729 F.2d at 56 (requiring a trial court

that rejects alternatives to sealing to make specific findings to

facilitate appellate review). The court did say, generally, that

"in those rare cases where counsel find it necessary to refer to

grand jury matters or other matters not properly disclosable, those

references are almost invariably dispersed throughout the memoranda

and inextricably intertwined with the references to applicable

legal authority." D. Ct. Op. at 13. But the First Amendment

requires consideration of the feasibility of redaction on a

document-by-document basis, and the court's blanket

characterization falls well short of this benchmark.

-28-
 Having pointed out these defects in the non-dissemination

order, we leave the matter of correction to the district court.

Consistent with the core purpose of advisory mandamus, the

principal value of our rulings is in terms of future cases. In

respect to the Cianci case itself, the court is at the end of a

lengthy trial; once the dust has settled, we are confident that the

district court will set a reasonable timetable for determining

whether previously submitted memoranda are to be placed on file in

the clerk's office (with or without redaction); and, as to any

memorandum withheld from filing, will enter specific findings as to

the need for that restriction and the impracticality of redaction

as an alternative to sealing. Within a reasonable time after the

Cianci case and all related proceedings have ended — there is a

"severed" defendant yet to be tried — we anticipate that the

district court will consider the release of all documents and other

materials then remaining under seal. Should the district court

fail to act in a timely manner to effectuate the principles

endorsed in this opinion — a contingency that we doubt will occur

— THE JOURNAL is free to petition for ancillary relief.

V. ANALYSIS: THE SECOND PETITION

We next grapple with THE JOURNAL 's request for copies of

the videotapes and audiotapes played at trial. In Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 494-97 (1975), the Supreme Court

concluded that the media has a First Amendment right to publish

-29-
information contained in court records that are open to public

inspection. A few years later, however, the Court rejected the

argument that the First Amendment right of access allowed the media

to obtain copies of tapes that had been entered into evidence at a

criminal trial. Warner Communications, 435 U.S. at 608-10.

Elaborating on this point, the Justices explained that the

constitutional right to attend criminal trials morphed into a right

to attend the trial sessions at which the tapes were played and to

report upon what was seen and heard in the courtroom, but did not

confer the right to replicate evidentiary materials in the custody

of the court. Id. at 609.

Warner Communications is directly applicable here. As in

that case, the district court has not restricted media access to,

or the publication of, any information in the public domain.

Indeed, the district court has gone to great lengths to facilitate

access to the trial proceedings by, for example, reserving seats in

the courtroom for members of the press and providing an overflow

room for remote viewing. By affording interested members of the

media ample opportunity to see and hear the tapes as they are

played for the jury, the court has fulfilled its pertinent First

Amendment obligations. See United States v. Beckham, 789 F.2d 401,

407 (6th Cir. 1986).

The demise of THE JOURNAL 's First Amendment claim does not

end the matter. The question remains whether the common-law right

-30-
to inspect and copy judicial documents affords a basis for relief.

As said, this right of access extends to "materials on which a

court relies in determining the litigants' substantive rights."

Anderson, 805 F.2d at 13. Thus, videotapes and audiotapes on which

a court relies in the determination of substantive rights are

within its reach. See United States v. Graham, 257 F.3d 143, 151-

53 (2d Cir. 2001). Because the videotapes and audiotapes that THE

JOURNAL seeks to copy have been admitted into evidence, they fall

into this category.

Viewed in this light, the question reduces to whether the

common-law right of access is fulfilled by permitting the press and

the public to see and hear such tapes, but not to copy them. To

answer this question, THE JOURNAL cites a plethora of instances in

which courts have allowed media outlets to obtain copies of tapes

used in judicial proceedings. E.g., id. at 155-56; United States

v. Myers (In re Application of Nat'l Broad. Co.), 635 F.2d 945,

952-54 (2d Cir. 1980). But this compendium only serves to prove

that a trial court may allow the media to copy tapes that have been

admitted into evidence; none of the constituent cases stands for

the much different proposition that a trial court must afford such

access.

Moreover, this case offers a unique twist. Here, the

government has not merely played individual tapes, but, rather, has

used cutting-edge technology (the Sanctions software) to play for

-31-
the jury medleys of selected excerpts from the universe of taped

material stored on its laptop computer. As a result, there is no

electronic medium — no tape or CD-ROM — currently in existence that

contains the precise medleys of taped excerpts that have been

played in open court. Consequently, we must decide whether the

common-law right of access compels a court to create (or order the

creation of) a new medium that contains only taped excerpts that

have been played in open court. This is a question of first

impression at the appellate level.

Historically, the common-law right of access permitted

the public to copy the contents of written documents. In re

Application of Nat'l Broad. Co., 635 F.2d at 950. Over time, the

right has been extended to accommodate technological advancements

in document reproduction such as photography, photocopying, and the

replication of videotapes and audiotapes. Id. Invariably,

however, these accommodations have covered materials that are "in

a form that readily permits sight and sound reproduction." Id. at

952.

When, as now, the media seeks access to materials that do

not exist in readily reproducible form, a new variable enters the

equation. We are reluctant to hold that the common-law right of

access necessarily compels the creation (and, thus, the copying) of

such materials. We prefer instead to leave this decision, like

many other decisions as to how best to effectuate the common-law

-32-
right of access, to the informed discretion of the trial court, so

that it may be exercised with due regard for the idiosyncratic

facts and circumstances of a specific case. See Warner

Communications, 435 U.S. at 599; Anderson, 805 F.2d at 13. This

approach seems especially appropriate here because the task of

assessing whether the creation of an excerpt-only recording entails

mere reproduction as opposed to extensive editing demands a

particularized, fact-intensive inquiry.

This brings us to the ruling below. The district court

denied THE JOURNAL 's motion, holding that the common-law right of

access did not mandate the creation of something not already in

existence (i.e., a tape or CD-ROM containing only those excerpts

played in open court) and finding replication infeasible. In this

regard, the court made a number of specific findings highlighting

difficulties inherent in THE JOURNAL 's proposals for physical access

to the taped excerpts. The court concluded, for example, that

editing the source material to create a tape or CD-ROM containing

only those excerpts played at trial was a far more daunting task

than merely duplicating existing source materials. The court also

found that the editing required to create tapes or CD-ROMs

containing only the hundreds of taped conversations being played in

open court would impose an appreciable burden on the court's staff,

the parties, or both.

-33-
 We decline THE JOURNAL 's invitation to second-guess these

findings. In the first place, the parties' representations as to

how the software operates and how difficult it would be to

reproduce the evidence seen and heard by the jurors are sharply

conflicting. As a result, the record before us is hopelessly

imprecise — and the Sanctions software package is not part of it.

In the second place, the fact that the public and the press have

had ample opportunity to see and hear the evidentiary tapes when

those tapes were played in open court during trial takes much of

the sting out of the district court's decision. Given these

considerations, we cannot say that the district court abused its

discretion in denying THE JOURNAL 's request to compel the creation

and production of excerpt-only tapes or CD-ROMs mimicking the

materials actually played to the jury.6 Cf. Valley Broad. Co. v.

United States Dist. Ct., 798 F.2d 1289, 1295 & n.8 (9th Cir. 1986)

(explaining that substantial administrative burdens alone may

justify denial of access).

6
We understand that written transcripts of the tapes have been
marked as exhibits for identification in the Cianci trial. At
first blush, it would seem that providing the media with copies of
these transcripts might represent a relatively straightforward
means of furthering access without imposing any significant burden
upon the district court or the litigants. THE JOURNAL , however, did
not raise the matter of the transcripts in either of its mandamus
petitions, and, therefore, we decline to order this relief. Cf.
Pratt v. United States, 129 F.3d 54, 62 (1st Cir. 1997) ("It is
firmly settled in this circuit that arguments not advanced and
developed in an appellant's brief are deemed waived.").

-34-
 THE JOURNAL has a fallback position. It argues that the

medleys of excerpts can be rerecorded as they are played in open

court. The district court rejected this proposal based upon the

clerk of court's representation that it was infeasible to tap into

the audio/video feed to the broadcast monitors to rerecord the

materials as they were being played in open court. The clerk

explained that consultations with the court's technical staff and

representatives of the vendor that had installed the courtroom

presentation system had not yielded a practicable and cost-

effective method of rerecording the audio/video transmission to the

overflow room. The district court accepted this representation.

THE JOURNAL disputes the accuracy of the clerk's

conclusion. Its position rests on a supplementary affidavit

submitted on the eve of oral argument in this court. That

affidavit suggests the existence of what THE JOURNAL describes as a

technologically feasible method of rerecording the audio and video

excerpts as they are played in open court. We decline to consider

this belated proffer. See United States v. Slade, 980 F.2d 27, 30

(1st Cir. 1992) ("It is a bedrock rule that when a party has not

presented an argument to the district court, she may not unveil it

in the court of appeals."). THE JOURNAL is, of course, free to ask

the district court to evaluate this new proposal.

-35-
VI. CONCLUSION

A high-profile, multi-defendant political corruption case

is bound to test the mettle of the most experienced trial judge.

We admire the manner in which Chief Judge Torres has responded to

that challenge. Although we, with a luxury of time that district

judges rarely enjoy, have concluded that the court's non-

dissemination order must be modified in certain respects, that

conclusion in no way detracts from our overall assessment of the

district court's exemplary performance.

We need go no further. To recapitulate, we strike down

the District of Rhode Island's blanket nonfiling policy for the

handling of legal memoranda. We uphold the district court's non-

dissemination order, but direct the court, should it enter such

orders in future cases, to include certain specified safeguards.

As to the Cianci case itself, we leave the specifics of corrective

action to the district court, consistent with the teachings of this

opinion. Finally, we deem the district court's refusal to provide

THE JOURNAL with copies of videotapes and audiotapes an appropriate

exercise of the court's discretion, given the peculiar

circumstances of this case.

It is so ordered.

-36-