FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-35243
Plaintiff-Appellee,
D.C. No.
v. 12-gj-00149
INDEX NEWSPAPERS LLC, DBA The
Stranger, OPINION
Intervenor-Appellant,
MATTHEW DURAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
February 5, 2014—Seattle, Washington
Filed September 5, 2014
Before: Raymond C. Fisher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
2 UNITED STATES V. INDEX NEWSPAPERS
SUMMARY*
Grand Jury / Contempt Proceedings
The panel affirmed in part and reversed in part the district
court’s order denying in part a newspaper’s motion to unseal
transcripts and filings related to grand jury witness Matthew
Duran’s contempt and continued confinement proceedings.
The panel held that direct appeal, rather than a petition for
writ of mandamus, was the appropriate procedure for the
newspaper to seek review of the district court’s order; and the
panel dismissed the newspaper’s petition for a writ of
mandamus.
The panel held that there is no First Amendment public
right of access to: (1) filings and transcripts relating to
motions to quash grand jury subpoenas; (2) the closed
portions of contempt proceedings containing discussion of
matters occurring before the grand jury; or (3) motions to
hold a grand jury witness in contempt. The panel also held
that the public does have presumptive First Amendment
rights of access to: (1) orders holding contemnors in contempt
and requiring their confinement; (2) transcripts and filings
concerning contemnors’ continued confinement; (3) filings
related to motions to unseal contempt files; and (4) filings in
appeals from orders relating to the sealing or unsealing of
judicial records. The panel further held that the recognized
rights of access were categorical, but were not unqualified.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. INDEX NEWSPAPERS 3
The panel concluded that there was no substantial
probability that disclosing the order holding Duran in
contempt would jeopardize grand jury secrecy, and that
redacting the remaining documents would adequately protect
the government’s compelling interest in maintaining the
secrecy of the grand jury. The panel also held that it was not
sufficient for documents to be declared publically available
without a meaningful ability for the public to find and access
those documents. Finally, because the government did not
offer any alternatives, the panel held that the district court
must unseal its docket to allow the public to access those
transcripts and filings to which it was entitled.
The panel affirmed the district court’s decision to
maintain under seal: the transcript and filings related to
Duran’s motion to quash; the portion of the transcript of
Duran’s contempt proceedings during which matters
occurring before the grand jury were discussed; and the
motion to hold Duran in contempt. The panel remanded for
the district court to unseal the electronic and paper docket
filed in Duran’s contempt proceeding. The panel reversed the
district court’s decision to maintain under seal the order
holding Duran in contempt and ordering him confined, and
remanded for the district court to unseal that order. The panel
remanded for the district court to unseal the transcript and the
filings related to Duran’s confinement status hearing, the
filings related to Duran’s request for release, and the district
court filings related to the newspaper’s motion to unseal,
subject to any redactions deemed necessary. The panel
granted the newspaper’s motion to unseal the file in this
appeal, subject to possible redactions.
4 UNITED STATES V. INDEX NEWSPAPERS
COUNSEL
Neil M. Fox (argued), Law Office of Neil Fox, PLLC, Seattle,
Washington, for Invervenor-Appellant Index Newspapers
LLC, dba The Stranger.
Kimberly N. Gordon (argued), Law Offices of Gordon &
Saunders, PLLC, Seattle, Washington, for Defendant-
Appellee Matthew Duran.
Michael S. Morgan (argued) and Michael W. Dion, Assistant
United States Attorneys; Jenny A. Durkan, United States
Attorney, Western District of Washington, Seattle,
Washington, for Plaintiff-Appellee United States.
OPINION
CHRISTEN, Circuit Judge:
This case requires us to decide the extent to which the
public’s qualified right of access to court proceedings must
give way to the need for secrecy when a grand jury witness is
held in civil contempt and confined. We consider the district
court’s order granting in part and denying in part a
newspaper’s motion to unseal transcripts and filings related
to a grand jury witness’s contempt and continued
confinement proceedings.
All of the parties agree that there is no public right of
access to grand jury transcripts, but Index Newspapers, LLC,
dba The Stranger, asserts that once a grand jury witness is
subject to ancillary contempt proceedings, any part of the
contempt hearing transcript and related filings not covered by
UNITED STATES V. INDEX NEWSPAPERS 5
Federal Rule of Criminal Procedure 6(e) must be open to the
public. After full consideration of the issues raised by this
case, we conclude there is a First Amendment right of access
to some of the transcripts and filings related to Matthew
Duran’s contempt proceeding. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the district court’s ruling in
part, reverse in part, and remand.
BACKGROUND
On May 1, 2012, violence broke out on the streets of
downtown Seattle and demonstrators dressed in black
vandalized buildings and cars. The May Day demonstrators
smashed windows, used large sticks to damage buildings,
spray-painted cars, and committed other crimes. The William
Kenzo Nakamura United States Courthouse was one of the
buildings damaged during the demonstration. These events
were widely publicized by the news media, and a reporter for
The Stranger, a weekly newspaper based in Seattle, began
writing about the grand jury investigation that followed.
I. Contempt proceedings ancillary to the grand jury
investigation
Several months after the May Day demonstration,
Matthew Duran and K.O. were subpoenaed to testify before
the federal grand jury in the Western District of Washington.
Both Duran and K.O. filed motions to quash the grand jury
subpoenas, and both motions were denied. Duran and K.O.
refused to testify before the grand jury, and separate contempt
proceedings were held in the district court. The two contempt
proceedings were conducted in a nearly identical fashion, just
a few hours after each witness refused to testify. The district
court began with the courtroom closed to the public and heard
6 UNITED STATES V. INDEX NEWSPAPERS
testimony reciting portions of the grand jury transcript in
which Duran and K.O. refused to answer questions asked of
them. Next, the district court made findings of fact based on
the record and then opened the courtroom. The district court
announced that Duran and K.O. were in contempt and ordered
them confined. The court also explained that Duran and K.O.
would be released if they agreed to testify. The court’s
written orders stated that Duran and K.O. could be confined
until either the grand jury, and all of its extensions, expired,
or until eighteen months passed.1
During the open portion of Duran’s contempt proceeding,
the district court explained: “It is not [the] court’s preference
to have [Duran] languish for an indefinite period of time
without any direct contact or communication with [the]
court.” The court scheduled a status hearing approximately
two weeks after the contempt hearing so Duran could return
to court and reconsider whether he was willing to testify.
Prior to the status hearing, Duran filed a brief arguing that his
confinement should be terminated.
Duran’s status hearing was held in the same fashion as his
contempt hearing; the first part of the hearing was closed to
the public, and then the courtroom was opened. During the
open portion of the status hearing, Duran’s attorney explained
that Duran had been held in solitary confinement almost the
entire time since he was ordered confined. The district court
found that Duran remained in contempt because he continued
to refuse to testify, that he had access to his counsel while
confined, and that his detention had not become more
1
Duran unsuccessfully appealed the district court’s order holding him
in contempt and ordering him confined. We refer to that appeal as
Duran’s “recalcitrant witness appeal.”
UNITED STATES V. INDEX NEWSPAPERS 7
punitive than coercive. The government suggested that the
district court set the next status hearing six months out or not
set a date at all. Duran’s counsel took the position that the
court should not schedule another status hearing because her
client was not going to change his mind, even after being
confined for a longer period of time. In the end, the court did
not schedule a follow-up status hearing, but it did reiterate
that Duran was free to contact the court through counsel and
that the court would make itself available to Duran if he
changed his mind and decided to comply with the order
directing him to testify before the grand jury.
About five months later, Duran and K.O. filed motions to
terminate their confinement. They persisted in their refusal
to testify but argued that confinement had become more
punitive than coercive. The government opposed the
motions. Six days after the motions to terminate confinement
were filed, the district court issued an order requiring that
Duran and K.O. be released from custody no later than the
following day. The court found that Duran and K.O. had
been held in solitary confinement “[f]or a substantial portion
of [their] confinement,” that “[t]heir physical health ha[d]
deteriorated sharply and their mental health ha[d] also
suffered,” and that “[t]heir confinement ha[d] cost them; they
ha[d] suffered the loss of jobs, income, and important
personal relationships.” The district court concluded it was
unlikely that continued confinement would coerce Duran or
K.O. to testify.
II. The Stranger’s motion to unseal Duran’s and K.O.’s
files
All motions and accompanying papers related to grand
jury proceedings are sealed as a matter of course in the
8 UNITED STATES V. INDEX NEWSPAPERS
Western District of Washington. See Local Rules, W.D.
Wash. CrR 6(j)(2) (“The Clerk’s office shall accept for filing
under seal without the need for further judicial authorization
all motions and accompanying papers designated by counsel
as related to Grand Jury matters.”). Presumably due to this
rule, the district court records in Duran’s and K.O.’s contempt
cases were sealed, including the paper and electronic docket
sheets for each file.2 That is, the public was not able to access
the paper or electronic list of documents filed in either
contempt case, nor were the documents themselves available
for the public to view. In fact, a member of the public who
tried to access either file would not have been able to find any
record of either proceeding.
While Duran and K.O. were still in custody, The Stranger
filed two nearly identical motions with the district court to
unseal any portions of the district court records that did not
contain matters covered by the grand jury secrecy
requirements of Federal Rule of Criminal Procedure 6(e).
The Stranger’s motions recognized that some of the relevant
documents may be subject to redaction. The government
opposed the motions to unseal, arguing that the materials
sought were properly sealed because they disclosed “matters
occurring before the grand jury.” Duran and K.O. filed
declarations in support of the motions to unseal, and The
Stranger filed a reply.
The district court granted the motions to unseal in part
and denied them in part. It explained that there is no public
right of access to grand jury proceedings and, likewise, no
2
We use the word “record” to mean the court’s entire file, including all
filings, the audio recordings from the hearings, and all other documents in
the court’s file, such as the court’s log notes and orders.
UNITED STATES V. INDEX NEWSPAPERS 9
public right of access to the court record of proceedings held
ancillary to grand jury investigations. The court
acknowledged that all records having any connection to the
grand jury are not necessarily secret. Quoting Federal Rule
of Criminal Procedure 6(e)(5), it stated, “a witness who the
grand jury subpoenas has a ‘right to an open hearing in a
contempt proceeding.’” Qualifying this statement, the district
court noted that the public has no right to access the portions
of the contempt hearing in which grand jury secrets are
disclosed, such as when grand jury testimony is read. The
court explained that it was unclear exactly what The Stranger
wanted unsealed, but it assumed that The Stranger wanted the
court to unseal as much of Duran’s contempt record as
possible. The court reasoned that the record The Stranger
sought was “a mix of secret grand jury material, grand jury
material that may have lost its secrecy, legal argument, banal
information, and more.” It also stated that “[i]t is perhaps
possible to assess every document in these files to redact
secret grand jury material and divulge the remainder,” but
doing so “would likely [create] an incomplete and sometimes
indecipherable ‘court file’ that would be as likely to mislead
the public as to enlighten it.” It ruled that the court had no
obligation “to sift through these grand jury proceedings to
determine what is secret and what is not.”
The district court concluded:
The public has a right to the transcripts of the
open portions of the hearings, but no more.
As to the written material submitted to the
court in connection with the contempt
proceedings, they contain grand jury
information, and they are not subject to the
10 UNITED STATES V. INDEX NEWSPAPERS
public right of access that applies to contempt
hearings.
The district court ordered Duran’s and K.O.’s files to remain
sealed, but explained that “The Stranger, like any other
member of the public, is entitled to access the transcripts of
the public portions of [the contempt] hearings.”
The Stranger petitions this court for a writ of mandamus
directing the United States District Court for the Western
District of Washington to unseal the portions of Duran’s and
K.O.’s contempt files that do not contain matters shielded by
Rule 6(e). The Stranger also appeals from the district court’s
order denying in part its motion to unseal the court’s record
of Duran’s contempt proceeding. Because we decide The
Stranger is entitled to bring a direct appeal, we dismiss the
petition for writ of mandamus. This opinion does not address
the district court’s order denying The Stranger’s motion to
unseal the court’s record of K.O.’s contempt proceeding
because The Stranger did not appeal that order.
STANDARD OF REVIEW
We review de novo whether the public has a right of
access to the judicial record of court proceedings under the
First Amendment, the common law, or Federal Rule of
Criminal Procedure 6(e), because these are questions of law.
See Times Mirror Co. v. United States, 873 F.2d 1210, 1212
(9th Cir. 1989). When the district court conscientiously
balances the common law presumption in favor of access
against important countervailing interests, we review a
decision whether or not to unseal the judicial record for abuse
of discretion. See San Jose Mercury News, Inc. v. U.S. Dist.
Court, 187 F.3d 1096, 1102 (9th Cir. 1999).
UNITED STATES V. INDEX NEWSPAPERS 11
DISCUSSION
I. Direct appeal was the appropriate procedure for The
Stranger to seek review of the district court’s order.
The Stranger filed a petition for a writ of mandamus in
this court. It separately appealed the district court’s order
partially denying its motion to unseal the record of Duran’s
contempt proceeding. We conclude that direct appeal is the
appropriate mechanism for The Stranger to seek review of the
district court’s order denying, in part, The Stranger’s motion.
Mandamus “is a drastic and extraordinary remedy
reserved for really extraordinary causes.” Cheney v. U.S.
Dist. Court, 542 U.S. 367, 380 (2004) (quoting Ex parte
Fahey, 332 U.S. 258, 259–60 (1947)) (internal quotation
marks omitted). This court considers the following five
factors in determining whether mandamus relief is
appropriate:
(1) whether the petitioner has no other means
to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in
any way not correctable on appeal;
(3) whether the district court’s order is clearly
erroneous as a matter of law; (4) whether the
district court’s order is an oft repeated error or
manifests a persistent disregard of the federal
rules; and (5) whether the district court’s
order raises new and important problems or
issues of first impression.
United States v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012)
(citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55
12 UNITED STATES V. INDEX NEWSPAPERS
(9th Cir. 1977)). “[M]andamus may not issue so long as
alternative avenues of relief remain available.” Cheney,
542 U.S. at 379.
The first consideration for determining whether to issue
a writ of mandamus is whether “the party seeking issuance of
the writ [has any] other adequate means to attain the relief he
desires—a condition designed to ensure that the writ will not
be used as a substitute for the regular appeals process.” Id. at
380–81 (citation and internal quotation marks omitted). The
Stranger filed both a petition for writ of mandamus and an
appeal of the district court’s order because it concluded: “It
is not clear whether this Court has jurisdiction to hear this
appeal, or whether the only remedy is by means of mandamus
review.” The Stranger was unsure it could appeal because it
was not a party to Duran’s contempt proceeding, and it was
uncertain whether the district court’s order denying its motion
to unseal was a final appealable order. The Stranger hedged
its bets and argued that, if mandamus was not the exclusive
route to review, then the district court’s order must be final
and appealable. The government argued that the district
court’s order was a final order subject to appellate review,
and that our court should not consider the petition for writ of
mandamus.
Though The Stranger initially professed concern that it
lacked party status, The Stranger and the government agreed
at oral argument before our court that The Stranger
“intervened” in Duran’s contempt proceeding. This fact is
not immediately apparent from the record, but the local civil
rules do permit non-parties to file motions to unseal, and the
district court treated The Stranger as an intervenor. See Local
Rules, W.D. Wash. LCR 5(g)(8) (“A non-party seeking
access to a sealed document may intervene in a case for the
UNITED STATES V. INDEX NEWSPAPERS 13
purpose of filing a motion to unseal the document.”).3 Both
the Supreme Court in Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211 (1979), and our court in In re
Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778
(9th Cir. 1982), allowed non-parties to appeal when their
petitions to the district court for information related to a
grand jury investigation were denied. See Douglas Oil,
441 U.S. at 216–17; Special Grand Jury, 674 F.2d at 779–80.
Here, mandamus is unavailable because the district
court’s order was a final, appealable order. Duran’s motion
for termination of confinement was granted on February 27,
2013, and he was released. The order granting his release
ended Duran’s civil contempt proceeding. The same day the
release order was issued, the district court denied The
Stranger’s motion for reconsideration of its order partially
denying The Stranger’s motion to unseal Duran’s contempt
record. There will be no further order or appealable final
judgment from which The Stranger can seek review because
the district court’s order on The Stranger’s motion “finally
adjudicated the matter presented” and “resolved all issues that
were raised.” Times Mirror, 873 F.2d at 1212 (citation and
internal quotation marks omitted).
Direct appeal is available because the district court’s
order “dispose[d] of all of the contentions [raised by The
Stranger] and terminate[d] a separate proceeding pending
before the grand jury court.” Douglas Oil, 441 U.S. at 233
3
In contrast, an outside party cannot intervene in a grand jury
proceeding. See In re Special Grand Jury (for Anchorage, Alaska),
674 F.2d 778, 782 (9th Cir. 1982) (“The Rules of Criminal Procedure
include no provision that authorizes, on its face, intervention by a member
of the public in a grand jury proceeding.”).
14 UNITED STATES V. INDEX NEWSPAPERS
(Rehnquist, J., concurring). This is consistent with a recent
decision by our court concluding that we have jurisdiction to
review “an order denying a motion to unseal or seal
documents” filed in the district court because such an order
“is appealable either as a final order under 28 U.S.C. § 1291
or as a collateral order.” Oliner v. Kontrabecki, 745 F.3d
1024, 1025 (9th Cir. 2014) (quoting Foltz v. State Farm Mut.
Auto. Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003)) (internal
quotation marks omitted). Because The Stranger had the
ability to appeal the district court’s order on its motion to
unseal the record of Duran’s contempt proceeding, it may not
obtain mandamus relief. See Cheney, 542 U.S. at 379 (where
other relief is available, “mandamus may not issue”). We
therefore dismiss the petition for writ of mandamus and
consider The Stranger’s appeal.
II. The public’s right of access to the record of contempt
proceedings held ancillary to a grand jury
investigation
In its motion to unseal Duran’s contempt file, The
Stranger requested public “access to the court files regarding
the contempt citations related to Matthew Duran . . . , the
transcripts of the contempt hearings, and any briefing.” The
Stranger acknowledged that some of Duran’s contempt file
would be shielded by Rule 6(e), and the district court
assumed The Stranger wanted the court to unseal as much of
the record as possible.
On appeal, The Stranger clarified that its request includes
public access to the district court’s docket related to Duran’s
UNITED STATES V. INDEX NEWSPAPERS 15
contempt proceeding.4 The request also includes public
access to the following three classes of filings and transcripts:
(1) Duran’s motion to quash his subpoena; (2) Duran’s
contempt hearing and the subsequent hearing related to
Duran’s continued confinement; and (3) The Stranger’s
motion to unseal the record of Duran’s district court contempt
proceeding. The Stranger asserts that the public has a right
of access to these filings and transcripts under the First
Amendment, the common law, and Rule 6(e). The
government responds that because matters occurring before
the grand jury are secret under Rule 6(e), and because matters
occurring before the grand jury are necessarily discussed in
contempt proceedings conducted ancillary to grand jury
investigations, there is no public right of access to the
categories of documents and transcripts sought by The
Stranger.
America has a long history of distrust for secret
proceedings. See In re Oliver, 333 U.S. 257, 268–69 (1948)
(“[D]istrust for secret trials has been variously ascribed to the
notorious use of this practice by the Spanish Inquisition, to
the excesses of the English Court of Star Chamber, and to the
French monarchy’s abuse of the lettre de cachet.” (footnotes
omitted)). Pursuant to the First Amendment, there is a
presumed public right of access to court proceedings. See
Oregonian Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462,
1465 (9th Cir. 1990). Secret proceedings are the exception
rather than the rule in our courts. See id. Nevertheless, one
very well established exception is grand jury proceedings.
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9
4
In this opinion, we use the word “docket” to refer to the electronic and
paper list of documents filed with the courts, not the documents
themselves.
16 UNITED STATES V. INDEX NEWSPAPERS
(1986) (Press-Enterprise II). Because the grand jury is an
integral part of the criminal investigatory process, these
proceedings are always held in secret. See id. This secrecy
is justified by the need to encourage witnesses to come
forward voluntarily without fear that those whom they testify
against will know they did so, to encourage witnesses to
testify fully, to ensure that targets of a grand jury
investigation do not flee or try to influence grand jurors, and
to assure that individuals who are accused but exonerated are
not held to public ridicule. See Douglas Oil, 441 U.S. at
218–19.
The Supreme Court has instructed that the following two
questions should be asked to determine whether the First
Amendment right of access applies to a particular proceeding:
(1) “whether the place and process have historically been
open to the press and general public,” and (2) “whether public
access plays a significant positive role in the functioning of
the particular process in question.” Press-Enterprise II,
478 U.S. at 8. This test is commonly referred to as the
“experience and logic test.” See, e.g., id. at 9. The same test
applies to the disclosure of “documents generated as part of
a judicial proceeding.” Times Mirror, 873 F.2d at 1213 n.4.
If we conclude that there is a First Amendment right of access
to any of the documents encompassed by The Stranger’s
request, we must “then determine whether any such right is
overcome by a compelling governmental interest.” In re
Copley Press, Inc., 518 F.3d 1022, 1026 (9th Cir. 2008).
We also “consider whether the common law gives the
public a right of access separate from the First Amendment.”
Id. The public’s common law right of access is not absolute
and it does not extend to records that have “traditionally been
kept secret for important policy reasons.” Times Mirror,
UNITED STATES V. INDEX NEWSPAPERS 17
873 F.2d at 1219. In particular, our court has held that the
common law right to public records and documents does not
extend to grand jury transcripts or to sealed search warrant
materials during a pre-indictment investigation. United
States v. Bus. of Custer Battlefield Museum & Store, 658 F.3d
1188, 1192 (9th Cir. 2011).
Applying the experience and logic test to each category
of documents sought by The Stranger, we conclude there is
no First Amendment public right of access to: (1) filings and
transcripts relating to motions to quash grand jury subpoenas;
(2) the closed portions of contempt proceedings containing
discussion of matters occurring before the grand jury; or
(3) motions to hold a grand jury witness in contempt. We do
not consider whether there is a separate common law right of
access to these documents because any such presumption in
favor of access is outweighed by the compelling government
interest in maintaining grand jury secrecy.
In contrast, the public does have presumptive First
Amendment rights of access to: (1) orders holding
contemnors in contempt and requiring their confinement;
(2) transcripts and filings concerning contemnors’ continued
confinement; (3) filings related to motions to unseal contempt
files; and (4) filings in appeals from orders relating to the
sealing or unsealing of judicial records. These rights of
access are categorical and do not depend on the
circumstances of any particular case.
Although the rights of access we recognize today are
categorical, they are not unqualified. Courts must carefully
consider whether closure or sealing is nevertheless required
to prevent harm to a compelling interest, which in this context
will likely be the need to maintain the secrecy of grand jury
18 UNITED STATES V. INDEX NEWSPAPERS
information and the need to avoid compromising grand jury
investigations. This inquiry will turn on the circumstances of
each particular case, including whether the grand jury
investigation is ongoing and, if not, how much time has
passed since its completion. In this case, we conclude there
is no substantial probability that disclosing the order holding
Duran in contempt will jeopardize grand jury secrecy, and
that redacting the remaining documents will adequately
protect the government’s compelling interest in maintaining
the secrecy of the grand jury. Because we recognize a First
Amendment right of access to these documents, we do not
consider whether they are also subject to the common law
presumption in favor of access.
Finally, we hold that it is not sufficient for documents to
be declared publically available without a meaningful ability
for the public to find and access those documents. Because
the government has not offered any alternatives, we hold that
the district court must unseal its docket to allow the public to
access those transcripts and filings to which it is entitled.
We address each category of requested documents in turn.
A. The filings and transcript of the hearing related to
Duran’s motion to quash his grand jury subpoena
The Stranger argues that the public has a right of access
under the First Amendment, the common law, and Rule 6(e)
to the briefing, orders, and transcripts related to Duran’s
motion to quash his grand jury subpoena. In this instance, the
documents in the court’s file include Duran’s motion to
quash, the government’s opposition, Duran’s reply brief, the
district court’s order denying Duran’s motion, and the
transcript of the hearing on the motion to quash.
UNITED STATES V. INDEX NEWSPAPERS 19
Federal Rule of Criminal Procedure 6(e) addresses the
secrecy obligation imposed on participants in grand jury
proceedings. Rule 6(e)(5) states, “Subject to any right to an
open hearing in a contempt proceeding, the court must close
any hearing to the extent necessary to prevent disclosure of a
matter occurring before a grand jury.” As for documents
related to the grand jury, Rule 6(e)(6) provides, “Records,
orders, and subpoenas relating to grand-jury proceedings
must be kept under seal to the extent and as long as necessary
to prevent the unauthorized disclosure of a matter occurring
before a grand jury.” Rule 6(e) secrecy extends beyond grand
jury transcripts and includes summaries and discussions of
grand jury proceedings. See U.S. Indus., Inc. v. U.S. Dist.
Court, 345 F.2d 18, 20–21 (9th Cir. 1965).
Under the plain language of Rule 6(e)(5) and (6), it was
not an abuse of discretion for the district court to decline to
unseal the court’s record and file related to Duran’s motion to
quash his grand jury subpoena. The motion was filed when
the grand jury investigation was ongoing and it was
predictable that the briefs and oral argument concerning the
motion to quash would contain information about matters
occurring, or anticipated to occur, before the grand jury. At
a minimum, the briefs and argument would have confirmed
that a grand jury investigation was being conducted, that
Duran had been subpoenaed, and the reasons the government
suspected Duran had information pertinent to the crimes
being investigated. Inevitably, such disclosure would have
risked revealing where the investigation was heading, which,
in turn, might have thwarted the investigation by tipping off
its subjects or by revealing other potential witnesses. Such
disclosures could implicate the safety of potential witnesses,
reveal offers of immunity made to those witnesses, or lead to
the destruction of evidence. These considerations and others
20 UNITED STATES V. INDEX NEWSPAPERS
have been noted by the Supreme Court. See Douglas Oil,
441 U.S. at 218–19 & n.10 (secrecy justified by need to
prevent escape by those under investigation, ensure freedom
of the grand jury in its deliberations, encourage witnesses to
testify voluntarily and fully, ensure targets under
investigation do not flee or influence grand jurors, and assure
those accused, but exonerated, are not held to public ridicule).
Having concluded that the transcript and filings related to
Duran’s motion to quash fall within the scope of Rule 6(e)’s
secrecy protection, we consider whether the public
nonetheless has a right of access to those documents.5 We
apply the experience and logic test to determine whether the
public has a First Amendment right to the transcript and
filings related to Duran’s motion to quash. Determining
whether there is a public right of access requires looking at
the class of proceedings as a whole, not the particular
5
We acknowledge that federal courts generally do not reach
constitutional questions if cases can be resolved on other grounds. See,
e.g., Bus. of Custer, 658 F.3d at 1190. But the common law public right
of access analysis considers whether judicial records have “traditionally
been kept secret for important policy reasons.” Times Mirror, 873 F.2d
at 1219. As discussed in Part II.B of this opinion, in the context of
documents related to the grand jury, that analysis provides little guidance
because the tradition of secrecy is either inconsistent or nonexistent. To
further our goal of providing clarity to the district court, we begin with the
First Amendment analysis. Our court has taken this approach in other
cases involving the public’s right of access to judicial records. See
Copley, 518 F.3d at 1026; Times Mirror, 873 F.2d 1212–13. Because we
conclude the public has a First Amendment right of access to some of the
documents at issue in this case, we need not consider whether such
documents also fall within the scope of the public’s common law right of
access. We also do not decide whether the public has a common law right
of access to the requested documents to which it does not have a First
Amendment right of access because we conclude that any such right of
access is outweighed by the need for grand jury secrecy.
UNITED STATES V. INDEX NEWSPAPERS 21
proceedings at issue in this case. See Oregonian, 920 F.2d at
1465. The Stranger cites no authority supporting its implied
contention that motions to quash grand jury subpoenas have
traditionally been open to the public, nor can we find any. At
best, the advisory notes to Rule 6(e)(5) explain that courts are
not consistent when it comes to opening hearings concerning
grand jury witness immunity or granting access to orders
compelling grand jury witnesses to comply with subpoenas,
and that such “open hearings often seriously jeopardize grand
jury secrecy.”6
Logic dictates that the record of proceedings concerning
motions to quash grand jury subpoenas should be closed. As
noted, there are several compelling reasons why grand jury
proceedings should be kept secret, including protecting the
integrity of the grand jury investigation and the safety of
witnesses. See Douglas Oil, 441 U.S. at 218–19 & n.10. The
Stranger and Duran argue that these reasons do not apply in
this case, but the fact that some of these reasons are not as
compelling in the context of this particular contempt
proceeding—because Duran did not wish to remain
anonymous—is not dispositive. We do not doubt that the
contempt proceeding and subsequent period of confinement
had an enormous consequence for Duran, but he is not the
only one with an interest in maintaining the secrecy of the
grand jury. The court has an interest in the integrity of the
proceedings and the safety of those involved, the government
6
The Second Circuit inferred that hearings on a motion to quash a grand
jury subpoena may be sealed under Rule 6(e)(5). See In re Grand Jury
Subpoena, 103 F.3d 234, 238 (2d Cir. 1996) (noting that the commentary
to the rule “provides two examples of hearings which may be closed under
6(e)(5) . . . : a motion to quash a grand jury subpoena, and a motion for an
immunity order”).
22 UNITED STATES V. INDEX NEWSPAPERS
has an interest in the outcome of its investigation, and the
public has an interest in the fairness of the grand jury
investigatory process. Duran’s personal decision to disclose
what he may have learned about the grand jury investigation
does not compel disclosure or unsealing of the court’s filings
or hearing transcripts related to the grand jury. It is well
established that unsealing this type of record can have broad
implications.
Because Duran had not yet appeared before the grand jury
at the time of the hearing on his motion to quash, The
Stranger argues that Duran’s briefs pertaining to the motion,
and the government’s response, “should be unsealed because
none of these documents could possibly contain references to
grand jury secrets.” This argument is unpersuasive. From the
record available to us, the very fact that Duran had been
subpoenaed as a grand jury witness was a grand jury secret at
the time of the hearing on the motion to quash.7 Duran and
The Stranger also argue that once the contempt hearing was
opened, the district court should have retroactively unsealed
the motion to quash Duran’s grand jury subpoena. But The
Stranger and Duran do not cite any authority for this
proposition, and we do not know of any.
It is true that public disclosure of judicial records often
enhances the public’s trust in the process. See Press-
Enterprise II, 478 U.S. at 7–8. However, it is well
established that the harm caused by disclosure of certain
judicial records more than outweighs any benefit caused by
such disclosure. See id. at 9 (“[T]he proper functioning of
7
None of the articles The Stranger and Duran submitted to this court,
which discuss the fact that Duran had been subpoenaed, are dated prior to
the motion to quash hearing.
UNITED STATES V. INDEX NEWSPAPERS 23
our grand jury system depends upon the secrecy of grand jury
proceedings.”). Here, any positive role the public might play
in ensuring the fair resolution of a motion to quash a grand
jury subpoena would be “more than outweighed by the
damage to the criminal investigatory process” of the grand
jury, Times Mirror, 873 F.2d at 1215, because information
related to a grand jury investigation must be considered by a
court ruling on a motion to quash. Where the harm caused by
disclosure of judicial records outweighs the benefit of
disclosure to the public, public access no longer “plays a
significant positive role in the functioning of the particular
process in question.” Press-Enterprise II, 478 U.S. at 8. To
be sure, the closure of court proceedings is the exception
rather than the rule, but grand jury secrecy is a long-standing
and important exception that is codified in Rule 6(e) for good
reason.
Application of the experience and logic test yields the
conclusion that there is no First Amendment public right of
access to the filings and transcripts related to a motion to
quash a grand jury subpoena while the grand jury
investigation is ongoing. We do not need to decide whether
there is a common law right of access to filings and
transcripts related to a motion to quash this type of subpoena
because, even if there were, the government’s interest in
grand jury secrecy and the justifications identified in Douglas
Oil constitute “sufficiently important countervailing interests”
to overcome any common law “presumption in favor of
access.” See San Jose Mercury News, 187 F.3d at 1102. The
district court did not err by maintaining under seal the filings
24 UNITED STATES V. INDEX NEWSPAPERS
and transcript related to the hearing on Duran’s motion to
quash his grand jury subpoena.8
B. The transcripts and filings related to Duran’s
contempt proceeding held ancillary to the grand
jury’s investigation
The second category of documents The Stranger seeks
consists of the filings and transcripts related to Duran’s
contempt hearing and those related to Duran’s continued
confinement hearing.9
8
Our holding is specifically limited to the public’s right of access while
the grand jury investigation is ongoing. This is consistent with Rule
6(e)(6), “Records, orders, and subpoenas relating to grand-jury
proceedings must be kept under seal to the extent and as long as necessary
to prevent the unauthorized disclosure of a matter occurring before a grand
jury” (emphasis added). This is also consistent with Times Mirror Co. v.
United States, 873 F.2d at 1216, which found no First Amendment right
of access to “search warrant proceedings and materials while a pre-
indictment investigation is still ongoing” (emphasis added). We do not
reach whether, or when, a public right of access to the filings and
transcripts related to a motion to quash a grand jury subpoena might arise
after the conclusion of a grand jury investigation and any resulting
criminal proceedings.
9
These documents include: the motion to hold Duran in contempt; the
transcript of the contempt hearing; the order holding Duran in contempt;
the transcript of the confinement status hearing; Duran’s memorandum of
law governing termination of the order of confinement (filed prior to the
status hearing); Duran’s motion to end confinement; Duran’s declaration
in support of his motion to end confinement; the government’s opposition
to the motion to end confinement; and the district court’s order ending
confinement.
UNITED STATES V. INDEX NEWSPAPERS 25
1. The transcript of Duran’s contempt hearing
The district court’s order partially granting and partially
denying The Stranger’s motion to unseal stated, “The
Stranger, like any other member of the public, is entitled to
access the transcripts of the public portions of [the contempt]
hearings.” But The Stranger sought the transcript of the open
and closed portions of Duran’s contempt hearing to the extent
it did not contain material covered by Rule 6(e), and it asked
that the transcript be unsealed and opened to the public.
Duran also wanted an open contempt hearing, and he joined
in the request for the transcript to be made public.10
To determine whether the public has a First Amendment
right to access the transcript of the closed portion of Duran’s
contempt hearing, we apply the experience and logic test. See
Press-Enterprise II, 478 U.S. at 8. The Supreme Court has
decided two cases related to the experience prong of this test.
In 1948, the Supreme Court decided In re Oliver and ruled
that “[w]itnesses who refuse to testify before grand juries are
tried on contempt charges before judges sitting in open
court.” 333 U.S. at 265; see also id. at 277–78. This is
consistent with Rule 6(e)(5), which states that the closure of
hearings related to the grand jury is “[s]ubject to any right to
an open hearing in a contempt proceeding.” But twelve years
later, in Levine v. United States, the Supreme Court ruled that
due process was not violated by the district court’s failure to
open the courtroom for the final stage of the contempt
10
The Stranger’s motion assumed that the audio recordings of the
court’s hearings had been transcribed. To avoid confusion, we use the
word “transcript” to mean a transcript that has been created from an audio
recording or during a hearing or grand jury session. We construe “access
to a transcript” to include permission to have a hearing transcribed.
26 UNITED STATES V. INDEX NEWSPAPERS
proceedings. See 362 U.S. 610, 618–19 (1960). That said,
the Levine Court also noted that “due process demands
appropriate regard for the requirements of a public
proceeding in cases of criminal contempt,” id. at 616 (citing
Oliver, 333 U.S. 257), and that if the contemnor in that case
had requested that the courtroom be opened to the public
before the final stage of the proceedings, “[it] would have a
different case,” id. at 618. Oliver, Levine, and Rule 6(e)(5)
suggest there is no hard-and-fast tradition that contempt
hearings held ancillary to a grand jury investigation must be
public. Instead, it appears that whether these hearings have
been open to the public has been largely dependent on the
circumstances of each case.
Logic may require that a portion of a contempt hearing
transcript be accessible to the public where there has been a
request to make the hearing public, where the witness does
not object, and where the court is satisfied that opening the
hearing will not thwart the grand jury’s investigation or
jeopardize other witnesses or evidence. A grand jury
witness’s right to, and the public’s interest in, an open
contempt hearing arises in part because a civil contempt
hearing “better resembles a criminal trial . . . than it does a
grand jury proceeding.” Cf. Guerrero, 693 F.3d at 1001.
Civil contempt, like criminal contempt, may subject a witness
to confinement. See 28 U.S.C. § 1826(a). A witness is
entitled to the presence of counsel, notice, and an opportunity
to present a defense. See United States v. Alter, 482 F.2d
1016, 1022–23 & n.11 (9th Cir. 1973). Civil contempt is
designed to coerce a witness’s testimony and confinement
must end if the contemnor complies. See United States v.
Rose, 806 F.2d 931, 933 (9th Cir. 1986). But as we have
explained, the coercive force of confinement pursuant to such
an order can be extreme: a witness may be jailed for eighteen
UNITED STATES V. INDEX NEWSPAPERS 27
months. 28 U.S.C. § 1826(a). The public plays a significant
positive role in contempt proceedings by providing a watchful
eye when the court considers a prosecutor’s request that a
witness be held in contempt and confined. The advisory
committee notes to Rule 6(e)(5) acknowledge that the rule
“accommodate[s] any First Amendment right which might be
deemed applicable in that context because of the proceedings’
similarities to a criminal trial.”
But logic requires that at least part of a contempt hearing
transcript should remain inaccessible to the public. The
Supreme Court has held that there is “no right to have the
general public present while the grand jury’s questions [are]
being read,” Levine, 362 U.S. at 618, and contempt hearings
ancillary to grand jury investigations will usually require at
least some disclosure of grand jury questions to establish a
witness’s refusal to answer. A grand jury witness may refuse
to testify for “just cause” and “a court must allow [the
witness] the opportunity to present reasons for [the] refusal to
testify.” United States v. Powers, 629 F.2d 619, 626 (9th Cir.
1980). Thus, the portions of a contempt hearing in which the
government introduces evidence to support its request for a
contempt finding, and in which the witness attempts to show
just cause for refusing to testify, will likely involve some
disclosure of information traditionally cloaked by Rule 6(e).
This information may include the subject of the grand jury
investigation, future targets of the grand jury, or other
information that, if disclosed, could undermine an ongoing
investigation.
In In re Copley Press, Inc., our court indicated that access
to a hearing on a motion to seal was not an all-or-nothing
proposition. 518 F.3d at 1027–28. Copley involved a closed
plea hearing in which a man accused of running a drug cartel
28 UNITED STATES V. INDEX NEWSPAPERS
in Mexico agreed to cooperate with the government. Id. at
1024–25. A newspaper sought all of the documents related
to the government’s motion to seal, and the transcript of the
hearing on that motion. Id. at 1025. Citing safety concerns,
our court held there was a public right of access to open
portions of the hearing regarding the government’s motion to
seal but no right of access to closed portions of the same
hearing. Id. at 1027–28. The result in Copley is entirely
consistent with the general presumption in favor of public
access to court proceedings, and with the need to limit that
access when compelling interests, such as witness safety,
require secrecy. The procedure the district court employed in
this case paralleled the procedures followed in Copley.
Given the compelling need to keep matters occurring
before the grand jury secret, we conclude that there is no First
Amendment public right of access to those portions of the
transcript of Duran’s contempt hearing that contain grand jury
testimony or information regarding the grand jury
investigation, i.e., the closed portion of the hearing. See
Levine, 362 U.S. at 618. We decline to decide whether there
is a common law right of access to the transcripts of the
closed portion of the contempt hearing because, even if there
is such a right, the government’s interest in grand jury
secrecy is a “sufficiently important countervailing interest[]”
that overcomes any common law “presumption in favor of
access.” San Jose Mercury News, 187 F.3d at 1102. We
affirm the district court’s decision to keep sealed the portion
of the transcript of Duran’s contempt hearing when
substantive grand jury matters were discussed.
We also agree with the district court’s decision to open
the courtroom to the public when the court announced that
Duran was in contempt and ordered his confinement. The
UNITED STATES V. INDEX NEWSPAPERS 29
government agrees that the district court’s decision to open
the courtroom at this stage of the hearing was consistent with
Levine. The district court determined that the grand jury
investigation would not be compromised by opening this part
of the hearing, and Duran requested a public hearing. Once
the hearing was opened, the court explained the terms of the
order under which Duran was to be confined and scheduled
Duran’s next hearing date, making clear that Duran had the
ability to request an earlier hearing if he decided to testify.
The district court’s decision tacitly acknowledged that public
access to this part of the hearing provides an important check
on the court and the government; opening the courtroom
ensured that Duran was confined under circumstances that
would permit the public to have notice of his confinement.11
See Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
508 (1984) (Press-Enterprise I) (“Openness thus enhances
both the basic fairness of the criminal trial and the appearance
of fairness so essential to public confidence in the system.”).
Our holding is consistent with those of at least three of
our sister circuits. See In re Grand Jury Subpoena, 97 F.3d
1090, 1094–95 (8th Cir. 1996) (affirming the district court’s
11
The Stranger argues that at least one member of the public was
excluded from the courtroom even after the district court ordered that
Duran’s contempt hearing would be opened. Duran argues that his “due
process right to public proceedings was implicated by the continued
closure of court even after the Court ordered that the closure cease.” The
Stranger and Duran base these arguments on a media report and a
declaration from K.O.’s attorney alleging that members of the public tried
to get through security to attend the contempt hearing but were denied
access. The government disputes that the public was denied access after
the courtroom was opened. We do not reach this issue because the district
court ruled that the transcript of the public portion of the hearing shall be
available to the public, and we affirm that ruling.
30 UNITED STATES V. INDEX NEWSPAPERS
decision to close a contempt hearing while grand jury
questions were read and to open the hearing for the
adjudication of contempt); In re Grand Jury Matter, 906 F.2d
78, 86–87 (3d Cir. 1990) (“[A] civil contempt proceeding . . .
may be closed to the public only to the extent that substantive
grand jury matters are being considered; the remainder of the
hearing must take place in open court.”); In re Rosahn,
671 F.2d 690, 697 (2d Cir. 1982) (“[A] contempt trial may
properly be closed to the public when substantive grand jury
matters are being considered, [but] no reason is advanced for
preventing a defendant from having the rest of his trial in
public.”). Given Duran’s consent, our decision is also
consistent with Rule 6(e)(5). See Fed. R. Crim. P. 6(e)(5)
(“Subject to any right to an open hearing in a contempt
proceeding, the court must close any hearing to the extent
necessary to prevent disclosure of a matter occurring before
a grand jury.” (emphasis added)). We decline to decide what
might occur if a grand jury witness desired the proceedings to
remain closed; that decision is best left for another case.12
12
We stress that whether the transcript of a contempt hearing ancillary
to a grand jury investigation should be available to the public is
necessarily a case-by-case determination. There may be circumstances
where the disclosure of a witness’s identity could compromise the grand
jury investigation or put other witnesses in danger. In each case, a court
must consider these risks and balance the interests of the government, the
grand jury witness, and the public. Cf. Copley, 518 F.3d at 1028
(reiterating that even when the public has a qualified right of access to a
document, that right can be overcome). The court should also consider the
timing of a motion to unseal. Such a motion could be filed before a grand
jury investigation and any subsequent prosecutions have been completed;
but it could also be filed years after the fact. Temporal proximity to the
grand jury’s work will likely have a significant impact on the court’s
analysis of the public’s right of access.
UNITED STATES V. INDEX NEWSPAPERS 31
Here, the district court intended to make the transcript of
the open portion of the contempt hearing available to the
public. The court ruled, “The Stranger, like any other
member of the public, is entitled to access the transcripts of
the public portions of [the contempt] hearings.” But it
appears that the court’s entire record of Duran’s contempt
proceeding was sealed in accordance with the Western
District of Washington local rule CrR 6(j), and there was no
publically available docket. Nor was there any public
indication that a contempt file existed. Thus, in practice, the
public had no way of accessing the transcript the court
intended to unseal. The government objects to unsealing the
district court docket, but at oral argument before our court it
could not explain how the public could access the open
portion of the contempt hearing transcript without access to
the docket. We remand for the district court to unseal the
docket, thus making the paper and electronic index of
Duran’s contempt file accessible. In doing so, the district
court shall consider any redactions the government may
request, consistent with this opinion.13
2. The filings related to Duran’s contempt
proceedings held ancillary to a grand jury
investigation
In addition to the transcript of Duran’s contempt hearing,
The Stranger requests that the filings related to Duran’s
contempt hearing be unsealed. These filings include the
13
Because we order the district court to unseal its docket, The Stranger’s
July 12, 2013 motion to unseal the district court docket is moot.
32 UNITED STATES V. INDEX NEWSPAPERS
motion to hold Duran in contempt and the order holding
Duran in contempt and ordering him confined.14
The district court ruled that the public had no right of
access to these filings because they contain grand jury
information and “neither the court nor the Government has an
obligation to sift through these grand jury proceedings to
determine what is secret and what is not.” We disagree.
Given the important interests at issue, a district court
generally does have a duty to consider what must remain
secret and what can be unsealed when a motion to unseal is
filed. See United States v. Smith, 123 F.3d 140, 143–44 (3d
Cir. 1997) (“Under such circumstances, in camera review of
the disputed material is necessary.”).
As required by our precedent, we apply the experience
and logic test to determine whether there is a First
Amendment right of access to the filings related to Duran’s
contempt hearing.15 We are aware of no controlling authority
14
Duran joins in this request. He argues that his First Amendment right
to associate is infringed because he will face “suspicion and ostracism”
from activist and social justice communities if they are not able to review
his grand jury file. Apart from a brief discussion with several conclusory
assertions, Duran provides no authority supporting this argument, and we
deem it waived. See Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929–30 (9th Cir. 2003) (inadequately briefed arguments are deemed
waived).
15
The Stranger cites Associated Press v. U.S. District Court, 705 F.2d
1143 (9th Cir. 1983), and argues that because at least part of Duran’s
contempt hearing was public, the public should also have access to the
filings associated with the hearing because they are necessary to
understand the hearing. Associated Press involved the widely publicized
criminal prosecution of John DeLorean in which the district court sua
sponte ordered all filings to be sealed. Id. at 1144. Several news
UNITED STATES V. INDEX NEWSPAPERS 33
addressing whether the public has a right of access to filings
related to contempt hearings held ancillary to a grand jury
investigation. Despite our tradition of public access, grand
jury proceedings have historically been secret, as we have
explained. See Guerrero, 693 F.3d at 1001.16
A motion to hold a grand jury witness in contempt will
likely recite some information related to the grand jury as
support for the government’s request that the witness be held
in contempt. As such, public access to those types of motions
could “frustrate criminal investigations and thereby
jeopardize the integrity of the search for truth that is so
organizations petitioned the Ninth Circuit for a writ of mandamus
directing the district court to vacate its order. Id. at 1145. Our court
applied the experience and logic test to determine whether the district
court’s order in Associated Press should be vacated. See id. Contrary to
The Stranger’s suggestion, we did not use the public’s ability to
understand an open hearing as the litmus test for deciding whether the
public should have access to the filings associated with the hearing.
The Stranger also cites Newsday LLC v. County of Nassau, 730 F.3d
156 (2d Cir. 2013). In Newsday, the Second Circuit reiterated that
circuit’s rule to determine whether a judicial document is subject to the
public’s right of access under the First Amendment: “whether the
documents at issue are derived from or are a necessary corollary of the
capacity to attend the relevant proceedings.” Id. at 164 (citation and
internal quotation marks omitted). This is not the test in our circuit.
Compare id., with Associated Press, 705 F.2d at 1145.
16
One Third Circuit case discusses the public’s right of access to filings
related to contempt hearings held ancillary to a grand jury investigation.
See In re Newark Morning Ledger Co., 260 F.3d 217 (3d Cir. 2001). In
this case, the district court was “at the preliminary stage of sorting out
whether secret grand jury material was implicated,” id. at 227, and merely
sealed the record while it decided whether material protected by Rule 6(e)
was at issue, id. at 227–28. The Third Circuit affirmed. Id. at 228. The
decision we reach today is consistent with the Third Circuit’s approach.
34 UNITED STATES V. INDEX NEWSPAPERS
critical to the fair administration of justice.” Times Mirror,
873 F.2d at 1213. This is especially true while a grand jury
investigation is ongoing. Given the importance of secrecy to
a grand jury investigation, we conclude there is no First
Amendment or common law public right of access to a
motion to hold a grand jury witness in contempt while the
grand jury investigation is ongoing. We affirm the district
court’s decision to maintain the written motion to hold Duran
in contempt under seal.
We reach a different conclusion regarding the order
holding Duran in contempt and ordering him confined. Logic
dictates that at least some of the filings related to contempt
hearings ancillary to grand jury investigations may be open
to the public because of the hearings’ similarities to criminal
trials. Cf. Guerrero, 693 F.3d at 1001. As discussed, “public
access plays a significant positive role in the functioning” of
the portion of a contempt hearing when a witness is held in
contempt and ordered confined. See Press-Enterprise II,
478 U.S. at 8. It necessarily follows that the order of
contempt and confinement should be accessible, at least when
the grand jury witness does not object and the court
determines that the grand jury investigation will not be
compromised. This is so whether the order is rendered orally
or in writing. Public access to this part of the record provides
a check on the process by ensuring that the public may
discover when a witness has been held in contempt and held
in custody. We conclude the public has a presumptive First
Amendment right to the district court’s order finding Duran
in contempt and ordering him confined.
Nevertheless, this public right of access may be overcome
if: (1) the government has a compelling interest; (2) there is
a substantial probability that the interest will be harmed by
UNITED STATES V. INDEX NEWSPAPERS 35
disclosure; and (3) there are no adequate alternatives to
maintaining the filings under seal. See Copley, 518 F.3d at
1028. The government’s interest in maintaining grand jury
secrecy is compelling but there is not necessarily a substantial
probability that this interest will be harmed by the disclosure
of a contempt and confinement order. Even if there is such
a probability, redaction, as an alternative to closure, must be
considered before the public is denied access to the
information that a person was held in contempt and remanded
to custody.
Here, we have reviewed the order holding Duran in
contempt and conclude that there is no probability that
unsealing it will harm the government’s interest in
maintaining the secrecy of grand jury proceedings.
Accordingly, no redaction is necessary and this document
shall be unsealed on remand.17
17
The Stranger also requests that the filings related to Duran’s
recalcitrant witness appeal be unsealed. As an initial matter, we note that
The Stranger represented that it obtained a copy of the memorandum
disposition from Duran’s recalcitrant witness appeal on the Internet and
subsequently filed it in the unsealed mandamus action related to this case.
The government did not object to that filing or request that we seal the
mandamus case file. It does not appear that Duran or The Stranger
requested that the merits panel in Duran’s recalcitrant witness appeal
unseal the other filings in that appeal. To the extent The Stranger’s
request to unseal the filings in the recalcitrant witness appeal is not moot
because of the public availability of the memorandum disposition, The
Stranger must separately request that the file in that appeal be unsealed.
It is not appropriate to seek that disclosure in this case.
36 UNITED STATES V. INDEX NEWSPAPERS
3. The transcript and filings related to Duran’s
continued confinement
The Stranger also requests documents related to Duran’s
continued confinement. These filings include Duran’s
memorandum of law governing termination of the district
court’s order of confinement, the transcript of Duran’s
September 26, 2012 confinement status hearing, Duran’s
motion to terminate his confinement, his declaration in
support of the motion, the government’s opposition, and the
district court’s February 27, 2013 order releasing Duran.
There was no hearing on Duran’s motion to end confinement,
so there is no accompanying transcript or audio recording.
The district court allowed The Stranger to have access to
transcripts of the public portions of Duran’s contempt hearing
and confinement status hearing. But like the transcript of
Duran’s contempt hearing, the transcript of his confinement
status hearing remains hidden from public view because the
docket for Duran’s file was sealed as a matter of course. See
Local Rules, W.D. Wash. CrR 6(j). As discussed, on remand
the district court shall unseal the docket. This will allow the
public to access the open portion of the confinement status
hearing.
We interpret The Stranger’s request for access to the
transcript of Duran’s confinement status hearing to include as
much of the closed portion of that hearing as possible. We
are not aware of any federal cases addressing access to a
continued confinement hearing or to filings related to a
request for release, and the parties do not cite any. Thus, the
test for a common law right of access sheds no light on this
analysis. But as far as the First Amendment right is
UNITED STATES V. INDEX NEWSPAPERS 37
concerned, “logic alone, even without experience, may be
enough to establish the right.” Copley, 518 F.3d at 1026.
Logic favors greater public access to these transcripts and
filings because they are less likely to disclose sensitive
matters relating to the grand jury’s investigation and are more
likely to focus on the conditions of Duran’s confinement and
his willingness to testify. The grand jury investigation was
not the subject of Duran’s confinement hearing; the court was
concerned with whether continued confinement would coerce
his testimony, or whether his confinement had become
punitive. These filings were temporally distant from the
grand jury proceedings and were less likely to contain
discussions about matters occurring before the grand jury.
Further, by the time the confinement hearing was held,
Duran’s status as a grand jury witness had been publically
reported.18 We do not suggest there is a point at which a
court’s file must be presumptively unsealed. Rather, when a
motion to unseal is filed and ancillary proceedings have
become attenuated from the grand jury, the district court has
a duty to conduct an analysis to determine whether particular
types of filings should be unsealed. Here, we conclude under
the experience and logic test that the public has a presumptive
qualified right of access under the First Amendment to the
transcript and filings related to Duran’s continued
confinement.
18
Mike Carter, Man Ordered Held for Refusing to Testify on May Day
Violence, The Seattle Times (Dec. 14, 2012, 3:38 PM),
http://blogs.seattletimes.com/today/2012/12/man-ordered-held-for-
refusing-to-testify-on-may-day-violence/; Kim Murphy, Anarchists
Targeted After Seattle’s Violent May Day Protests, L.A. Times, Oct. 19,
2012, http://articles.latimes.com/2012/oct/19/nation/la-na-anarchists-
grand-jury-20121020.
38 UNITED STATES V. INDEX NEWSPAPERS
The public’s right of access may be overcome if: (1) the
government has a compelling interest; (2) there is a
substantial probability that the interest will be harmed by
disclosure; and (3) there are no adequate alternatives to
maintaining the filings under seal. See id. at 1028. Although
the government has a compelling interest in favor of grand
jury secrecy, the transcript and filings related to Duran’s
September 26, 2012 confinement status hearing and the
February 2013 filings related to his request for release are
also of considerable public importance because Duran had
been confined for approximately five months and there was
the potential for Duran to be confined for up to eighteen
months. The public also had an interest in the conditions
under which Duran was held in custody.
For this category of documents, in this case, redaction is
an adequate alternative to closure, see id., and it is preferred
given our strong tradition of open court proceedings.
Redactions shall be limited to references to the grand jury
investigation and should sweep no more broadly than
necessary to protect grand jury secrets.
Although redaction is an adequate alternative in Duran’s
case, we emphasize that, under different circumstances, it
may not be. For example, even seemingly innocuous
information can be so entangled with secrets that redaction
will not be effective. Cf. Mohamed v. Jeppesen Dataplan,
Inc., 614 F.3d 1070, 1082 (9th Cir. 2010) (en banc) (“[T]here
will be occasions when, as a practical matter, secret and
nonsecret information cannot be separated.”). Alternatively,
if the record is sufficiently voluminous, the consequences of
disclosure sufficiently grave or the risks of accidental
disclosure sufficiently great, the balance may well tip in favor
of keeping records sealed. These considerations are not
UNITED STATES V. INDEX NEWSPAPERS 39
exhaustive, but are examples of the considerations that may
be relevant when conducting the necessary case-by-case
balancing of interests.
We remand for the district court to unseal those portions
of the transcript and filings related to Duran’s confinement
status hearing and the filings related to his request for release,
subject to any redactions the government may propose and
the district court finds appropriate in light of the principles
outlined in this opinion.
C. The public’s right of access to the district court
filings related to The Stranger’s motion to unseal
Duran’s case file
The final category of documents sought by The Stranger
includes all district court filings related to The Stranger’s
motion to unseal Duran’s contempt file.19
Motions to unseal judicial proceedings and orders ruling
on those motions have historically been open to the public, at
least during recent history. See, e.g., Copley, 518 F.3d at
1025 (describing motion to unseal and order by the district
court ruling on the motion); Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1176–78 (9th Cir. 2006) (same);
Times Mirror, 873 F.2d at 1211–12 (same). Logic also
dictates that the record of these types of proceedings should
19
These documents include The Stranger’s motion to unseal Duran’s
contempt file, Duran’s declaration in support of unsealing, Duran’s
attorney’s declaration in support of unsealing, the government’s
opposition to unsealing, The Stranger’s reply, the district court’s order
granting in part and denying in part The Stranger’s motion to unseal, The
Stranger’s motion for reconsideration, and the district court’s order
denying The Stranger’s motion for reconsideration.
40 UNITED STATES V. INDEX NEWSPAPERS
be open to the public because the very issue at hand is
whether the public should be excluded or included in various
types of judicial proceedings. The public should be permitted
to observe, monitor, and participate in this type of dialogue,
or at least review it after the fact. See Copley, 518 F.3d at
1027 (“[L]ogic requires that at least part of these hearings be
open to the public, because one of their purposes is to give
the public an opportunity to be heard.”). In a similar case
involving motions to unseal proceedings held ancillary to a
grand jury investigation, the D.C. Circuit held that the district
court’s hearings on the motions to unseal, and its orders
regarding those motions, should be unsealed. See In re
Motions of Dow Jones & Co., 142 F.3d 496, 501 n.8 (D.C.
Cir. 1998) (“These motions [were] related to the grand jury
but obviously revealed nothing about its workings.”).
Application of the experience and logic test compels the
conclusion that the public has a qualified right of access
under the First Amendment to the district court record related
to The Stranger’s motion to unseal Duran’s contempt file.
All of the filings related to The Stranger’s motion to
unseal Duran’s contempt file should be open to the public
unless the public’s right of access is overcome by a
compelling government interest. See Copley, 518 F.3d at
1026; see also Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 606–07 (1982). The public’s interest in access
to judicial filings related to the motion to unseal outweighs
the government’s interest because these filings do not
jeopardize grand jury secrecy in this case. There is no
substantial probability that the government’s interest will be
harmed by disclosure of the filings related to The Stranger’s
motion to unseal. See Copley, 518 F.3d at 1028. Even if
there were, the general presumption in favor of open judicial
UNITED STATES V. INDEX NEWSPAPERS 41
proceedings requires that the district court consider
alternatives to closure, such as redaction. See id. at 1029.
Many of the filings sought by The Stranger were filed in
the publically accessible mandamus action. The government
had notice of these filings and has not moved to seal the
mandamus record since the petition for writ of mandamus
was filed, over a year ago. The government even argues to
this court that because The Stranger has access to many of the
filings it seeks to have unsealed, and The Stranger is not
subject to the secrecy obligation of Rule 6(e), this appeal is
moot. We disagree. This appeal is not moot because the
entire contempt file is effectively invisible to the public as
long as the docket is sealed, but we acknowledge that the
relief we order today is limited because most of the records
sought by The Stranger would have been available in the
mandamus action for over a year, if the public had known
where to look for them.
We remand for the district court to unseal the portion of
Duran’s contempt file containing the filings related to The
Stranger’s motion to unseal. The government shall be given
an opportunity to propose redactions before these filings are
unsealed.
D. The documents filed in this appeal
Shortly before oral argument before our panel, on January
2, 2014, The Stranger filed a motion to unseal the record in
this appeal. The government opposed the motion, but it did
not request that oral argument be closed. Oral argument was
held on February 5, 2014, and it was open to the public.
Since the argument, the government has not taken the
position that grand jury secrets were compromised in any
42 UNITED STATES V. INDEX NEWSPAPERS
way. This appeal does not concern the grand jury
investigation, the existence of which is now well known by
the public. This appeal is about the public’s right of access
to judicial proceedings and documents; fundamentally it is a
case about the public’s First Amendment and common law
rights of access, not about the May Day grand jury
investigation.
Experience and logic weigh in favor of unsealing the
appellate filings regarding The Stranger’s motion to unseal
Duran’s contempt file because the public should be given an
opportunity to engage in and follow the dialogue concerning
whether the public will be excluded from a proceeding. See
Copley, 518 F.3d at 1027; see also, e.g., Press-Enterprise II,
478 U.S. at 13 (finding qualified First Amendment right of
access to preliminary hearings in California in an unsealed
opinion); Special Grand Jury, 674 F.2d at 781 (finding
limited public right of access to ministerial records of the
grand jury in an unsealed opinion).
We see no possibility that unsealing the appellate docket,
the parties’ appellate briefs, and the motions filed in this
appeal will harm a compelling government interest. See
Copley, 518 F.3d at 1026. Nevertheless, the government
shall be permitted to file suggested redactions consistent with
this opinion by September 19, 2014. The appellate record
will not be unsealed until all issues regarding redaction are
resolved.
CONCLUSION
For the reasons discussed above, we DISMISS the
petition for writ of mandamus and rule on The Stranger’s
appeal.
UNITED STATES V. INDEX NEWSPAPERS 43
We AFFIRM the district court’s decision to maintain
under seal: (1) the transcript and filings related to Duran’s
motion to quash; (2) the portion of the transcript of Duran’s
contempt proceeding during which matters occurring before
the grand jury were discussed; and (3) the motion to hold
Duran in contempt.
We REMAND for the district court to unseal the
electronic and paper docket for the documents filed in
Duran’s contempt proceeding. The Stranger’s July 12, 2013
motion to unseal the district court docket is MOOT.
We REVERSE the district court’s decision to maintain
under seal the order holding Duran in contempt and ordering
him confined and we REMAND for the district court to
unseal that order.
We REMAND so the district court may unseal the
transcript and the filings related to Duran’s confinement
status hearing, the filings related to Duran’s request for
release, and the district court filings related to The Stranger’s
motion to unseal, subject to any redactions it may deem
necessary and that are in accord with this opinion.
The Stranger’s January 2, 2014 motion to unseal the file
in this appeal is GRANTED, subject to possible redactions.
The government may suggest redactions of the appellate
record consistent with this opinion by September 19, 2014.
If the government does request redactions, no part of the file
for this appeal shall be unsealed until the court has ruled on
the request.
44 UNITED STATES V. INDEX NEWSPAPERS
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.