United States v. Kravetz

United States Court of Appeals
For the First Circuit

No. 11-1718

UNITED STATES OF AMERICA,

v.

CAROLYN KRAVETZ and BORIS LEVITIN,

Defendants, Appellees.

JIM EDWARDS,

Movant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Jeremy Kutner, Yale Law School, Media Freedom & Information
Clinic, with whom Douglas Curtis, Eliza M. Scheibel and Wilmer
Cutler Pickering Hale and Dorr LLP were on brief, for appellant.
Robert L. Peabody, with whom Collora LLP was on brief, for
appellee Boris Levitin.
Joseph J. Balliro, Sr., with whom Balliro & Mondano was on
brief, for appellee Carolyn Kravetz.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for the
United States.
January 30, 2013
 HOWARD, Circuit Judge. Jim Edwards, a journalist,

appeals from an order of the district court declining his request

to make public various documents filed under seal in a criminal

case. For the reasons set forth below, we vacate in part and

remand.

I.

In 2008, a federal grand jury indicted co-defendants

Carolyn Kravetz and Boris Levitin on charges stemming from a scheme

to defraud restaurant franchisor Dunkin' Brands Incorporated

("Dunkin' Brands"). As charged in the indictment, Kravetz, a

former Director of External Communications for Dunkin' Brands,

agreed to steer Dunkin' Brands' business to Levitin's graphics firm

in return for kickbacks of one-half of the gross receipts. Kravetz

then authorized payments from Dunkin' Brands to Levitin's firm,

including payment in full for multiple projects on which Levitin

performed no work. Over the course of the scheme, the pair was

alleged to have defrauded Dunkin' Brands of nearly $400,000.

Kravetz and Levitin pled guilty in February 2010.

Kravetz's plea agreement stipulated that in exchange for her plea,

the government would recommend a thirty-two month incarcerative

sentence. Levitin's agreement stated that the government would

recommend a sentence at the low end of the Sentencing Guidelines

range, which resulted in a recommended term of eighteen months'

imprisonment. Ultimately, the judge rejected these recommendations

-3-
and sentenced both Kravetz and Levitin to thirty-two months of

probation only.

The proceedings piqued the interest of Edwards, who

specializes in coverage of the advertising industry for Bnet.com,

a news website operated by CBS Interactive. Edwards regularly

reports on events affecting major advertising firms, with a focus

on stories involving corruption. He began covering the Kravetz and

Levitin proceedings as early as October 2009. Citing Kravetz's

former prominence in the public relations and advertising

industries and references in the pleadings to additional victims of

Kravetz's and Levitin's fraud, Edwards wrote periodic updates on

the case and investigated the possible broader scope of the

underlying scheme.

As he monitored the proceedings, Edwards noticed sealed

documents appearing on the district court docket. After the court

and the parties referred to Kravetz's sealed sentencing memorandum

and attached letters of support during her July 2010 public

sentencing hearing, Edwards sent a letter to the district court in

October, requesting access to the sealed documents. At Levitin's

public sentencing hearing in November, the court and the parties

again made references to a sentencing memorandum and letters of

support that were not available to the public.

After the entry of final judgment against both

defendants, the court requested the parties to address whether the

-4-
documents sought by Edwards should remain under seal. When none of

the parties responded, Edwards again moved for unsealing. The

court directed counsel to respond to Edwards' request within

fourteen days. When the parties again failed to respond, Edwards

filed a third motion and a proposed order.

In response, Kravetz submitted a two-sentence letter

opposing the motion to unseal. The body of that letter stated, in

its entirety: "The defendant, Carolyn Kravetz[,] respectfully

objects to the motion to unseal the file in the above-referenced

matter. In support thereof the defendant says the file contains

matters that are personal to her and it would be inappropriate and

unreasonably detrimental to permit a journalist to access the

file." Levitin did not respond to Edwards' filings.

The court denied Edwards' motion to unseal in an order

stating:

Petitioner Jim Edwards has requested that the
sealed documents in this action be unsealed.
Counsel for Defendant Carolyn Kravetz has
opposed Petitioner's motions on Kravetz's
behalf. The court has reviewed the documents
in question and is persuaded from that review
that the documents contain matters that are
predominantly personal to Kravetz and that
there is not apparent justification for their
general publication. Therefore, the papers
shall remain sealed.

Although the order appeared to address only the Kravetz documents,

the parties do not dispute that the effect of the order was to also

deny Edwards' request to unseal documents pertaining to Levitin.

-5-
 Edwards appealed and simultaneously submitted to the

district court a motion to intervene and an accompanying

memorandum, in which he elaborated that the sealed documents were

"judicial documents" to which he had a right of access under the

First Amendment and common law. Kravetz opposed the motion,

arguing that "[t]here are no documents that could be considered

presumptively accessible to Mr. Edwards" and that, in any event,

the contested documents "contain very personal information about

Ms. Krav[e]tz to which she has a presumptive and absolute right of

privacy." Edwards' motion to intervene remains pending in the

district court.

II.

"Courts have long recognized 'that public monitoring of

the judicial system fosters the important values of quality,

honesty and respect for our legal system.'" In re Providence

Journal, 293 F.3d 1, 9 (1st Cir. 2002) (quoting Siedle v. Putnam

Inv., Inc., 147 F.3d 7, 10 (1st Cir. 1998)). This recognition is

embodied in two related but distinct presumptions of public access

to judicial proceedings and records: a common-law right of access

to "judicial documents," and a First Amendment right of access to

certain criminal proceedings and materials submitted therein. See

id. at 9-10.

Edwards argues that the district court's refusal to

release the sealed documents in this case contravenes both the

-6-
First Amendment and the common law, claiming that the documents are

presumptively public and that the district court failed to adhere

to procedural requirements. These claims require that we determine

first whether a presumption of public access attaches to the

contested documents and then, if so, whether the district court's

refusal to unseal those documents was sound.

A. PRESUMPTION OF PUBLIC ACCESS

On appeal, Edwards challenges the non-disclosure of three

categories of documents: the defendants' sentencing memoranda;

sentencing letters submitted by third parties on the defendants'

behalf and attached as exhibits to the sentencing memoranda or sent

directly to the district court; and pre-trial subpoenas duces tecum

and related motions filed by Levitin during the course of pre-trial

proceedings pursuant to Federal Rule of Criminal Procedure 17(c).1

We conclude that the Rule 17(c) materials are not

entitled to a presumption of access under either the First

Amendment or the common law. We also conclude, however, that the

public availability of the sentencing memoranda and letters must be

determined using a more searching standard under the common law

right of access than the district court's standard. In light of

that conclusion, we decline to reach Edwards' constitutional claim

1
Edwards does not seek access to the defendants' pre-sentence
investigation reports, nor does this case require us to consider
the status of sentencing letters attached to such reports.

-7-
as to these documents. See generally Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring).

1. Rule 17(c) Materials2

Edwards claims a right of access to the Rule 17(c)

pre-trial subpoenas duces tecum and related documents filed by

Levitin.3 The scope of the public's presumptive right of access to

this category of documents appears to be a matter of first

impression among the circuits. In the district courts, this issue

has most frequently been mentioned in the context of debates over

the propriety of ex parte applications to the court to issue such

subpoenas, with a number of courts suggesting that the public's

right of access is implicated by such applications. See United

States v. Peters, No. 03-CR-211S, 2007 WL 4105671, at *1 (W.D.N.Y.

2
Rule 17(c)(1) provides:

A subpoena may order the witness to produce any
books, papers, documents, data, or other objects
the subpoena designates. The court may direct the
witness to produce the designated items in court
before trial or before they are to be offered in
evidence. When the items arrive, the court may
permit the parties and their attorneys to inspect
all or part of them.

Fed. R. Crim. P. 17(c)(1). The rule thus contemplates subpoenas
duces tecum returnable either at or prior to trial. It is the
latter category that is at issue here.
3
The additional documents included a stipulation between
Levitin and the government regarding the filing of ex parte motions
for the issuance of Rule 17(c) subpoenas; Levitin's application to
seal a subpoena request; and a motion to enforce a Rule 17(c)
subpoena.

-8-
Nov. 14, 2007); United States v. Daniels, 95 F. Supp. 2d 1160, 1163

(D. Kan. 2000); United States v. Beckford, 964 F. Supp. 1010, 1029-

30 (E.D. Va. 1997); United States v. Hart, 826 F. Supp. 380, 382

(D. Colo. 1993); United States v. Urlacher, 136 F.R.D. 550, 556-58

(W.D.N.Y. 1991).4 Beyond citation to a "trend" in favor of

recognizing a presumptive right of access to documents filed in

conjunction with pretrial criminal proceedings not related to

discovery, however, these decisions offer little explanation as to

why Rule 17(c) subpoenas should be considered presumptively

accessible by the public, and at least one court has suggested that

they should not be. See United States v. Tomison, 969 F. Supp.

587, 595 (E.D. Cal. 1997).

We base our assessment of whether there is a First

Amendment right of public access to Rule 17(c) subpoenas on

experience and logic. See Press-Enterprise Co. v. Superior Court,

478 U.S. 1, 8-9 (1986) (explaining that in determining whether a

First Amendment right of access attaches to a particular type of

proceeding or document, courts should consider two complementary

considerations: "whether [they] have historically been open to the

press and general public" (the "experience" prong), and "whether

public access plays a significant positive role in the functioning

4
The text of Rule 17(c) does not expressly prohibit ex parte
requests for subpoenas, and courts have found them to be
permissible. See Peters, 2007 WL 4105671, at *1; Daniels, 95 F.
Supp. 2d at 1162-63; Beckford, 964 F. Supp. at 1025-31.

-9-
of the particular process in question" (the "logic" prong)).5

Neither prong is satisfied here. With respect to experience, there

is no tradition of access to criminal discovery. To the contrary,

"[d]iscovery, whether civil or criminal, is essentially a private

process because the litigants and the courts assume that the sole

purpose of discovery is to assist trial preparation." United

States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986); see also

Tomison, 969 F. Supp. at 595 ("Given that this is pre–trial

production process, it hardly fits as an historically open

proceeding.").

As for logic, there is scant value and considerable

danger in a rule that could result in requiring counsel for a

criminal defendant to prematurely expose trial strategy to public

scrutiny. Accordingly, we agree with those courts that have found

that public access has little positive role in the criminal

discovery process. See Anderson, 799 F.2d at 1140-41; United

States v. Martin, 38 F. Supp. 2d 698, 705 (C.D. Ill. 1999), rev'd

on other grounds by United States v. Ladd, 218 F.3d 701 (7th Cir.

2000); United States v. Hipp, No. 2:96-801, 1997 U.S. Dist. LEXIS

24115, at *3-4 (D.S.C. Jan. 2, 1997); State ex rel. WHIO-TV-7 v.

5
In In re Boston Herald, Inc., 321 F.3d 174, 182 (1st Cir.
2003), we expressed skepticism that these considerations should be
treated as a two-pronged test with dual elements that must both be
satisfied in order for a First Amendment right of access to attach.
Here, as there, we find it unnecessary to reach the issue because
we find that neither element is satisfied.

-10-
Lowe, 673 N.E.2d 1360, 1364 (Ohio 1997). Those decisions are

grounded largely on concerns surrounding the deleterious effect

that public access would have on the parties' search for and

exchange of information in the discovery process. See, e.g.,

Anderson, 799 F.2d at 1441 ("If . . . [criminal] discovery

information and discovery orders were readily available to the

public and the press, the consequences to the smooth functioning of

the discovery process would be severe."). Such considerations

militate decisively against public access to criminal discovery

materials. Moreover, "[m]aterials submitted to a court for its

consideration of a discovery motion are actually one step further

removed in public concern from the trial process than the discovery

materials themselves." Anderson v. Cryovac, Inc., 805 F.2d 1, 13

(1st Cir. 1986). There is no First Amendment right of public

access to the subpoenas or related materials.

When considering whether the common law right of access

applies, the cases turn on whether the documents that are sought

constitute "judicial records." Such records are those "materials

on which a court relies in determining the litigants' substantive

rights." In re Providence Journal, 293 F.3d at 9-10 (quoting

Anderson, 805 F.2d at 13). Such materials are distinguished from

those that "relate[] merely to the judge's role in management of

the trial" and therefore "'play no role in the adjudication

process.'" In re Boston Herald, Inc., 321 F.3d 174, 189 (1st Cir.

-11-
2003) (quoting F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404,

408 (1st Cir. 1987)).

Here the district court's review and disposition of

Levitin's Rule 17(c) requests were not undertaken "in order to

dispose of any issue as to the elements of the criminal charges

against him." Id. Rather, and in contrast to the various types of

pre-trial criminal proceedings and documents to which courts have

recognized a common law or constitutional right of access,6 Rule

17(c) materials relate merely to the judge's trial management role.

Id.; see also United States v. Nixon, 418 U.S. 683, 698-99 (1974)

(explaining that the "chief innovation" of Rule 17(c) was "to

expedite the trial by providing a time and place before trial for

the inspection of subpoenaed materials" (citing Bowman Dairy Co. v.

United States, 341 U.S. 214, 220 (1951))). Rule 17(c) subpoenas

and related materials thus are not those relied on to determine the

litigants' substantive rights.7 Anderson, 805 F.2d at 13. Indeed,

6
The courts of appeals have recognized a right of access to
various pre-trial proceedings and the documents filed in regard to
them, including, for example, suppression, due process, entrapment,
and plea hearings. See In re Hearst Newspapers, L.L.C., 641 F.3d
168, 176 (5th Cir. 2011) (collecting cases).
7
It has been suggested that a trial court's disposition of
Rule 17(c) motions implicates the Sixth Amendment guarantee that an
accused have compulsory process to secure evidence in his favor.
See Tomison, 969 F. Supp. at 593 (suggesting that "where evidence
relevant to guilt or punishment is in a third party's possession
and is too massive for the defendant to adequately review unless
obtained prior to trial, pre–trial production through Rule 17(c) is
necessary to preserve the defendant's constitutional right to
obtain and effectively use such evidence at trial" (citing United

-12-
in Anderson we carefully distinguished "the record on which a judge

actually decides the central issues in a case" from "documents

presented to a judge in connection with a discovery dispute" --

precisely the type of documents at issue here. In re Boston

Herald, 321 F.3d at 189 (construing Anderson, 805 F.2d at 13).

We note that even with respect to civil discovery, which

does not implicate the same level of concern about revealing a

criminal defendant’s strategy, there is no right of public access.

In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Supreme

Court stated that "pretrial depositions and interrogatories are not

public components of a civil trial. Such proceedings were not open

to the public at common law, and, in general, they are conducted in

private as a matter of modern practice." Id. at 33 (footnote

omitted). Following Seattle Times, the courts of appeals have

uniformly held that the public has no common law or constitutional

right of access to materials that are gained through civil

discovery but neither introduced as evidence at trial nor submitted

to the court as documentation in support of motions or trial

papers. See, e.g., Anderson, 805 F.2d at 13; Bond v. Uteras, 585

States v. Murray, 297 F.2d 812, 821 (2d Cir. 1962))); cf. United
States v. Porter, 988 F. Supp. 519, 525 (M.D. Pa. 1997) (relying in
part on Sixth Amendment implications of Rule 17(b) determinations
to find right of access). Even so, this is an insufficient ground
for conferring a public right of access. See In re Boston Herald,
321 F.3d at 184 & n.6 (rejecting argument that constitutional
implications of CJA eligibility determinations were sufficient to
trigger right of access where defendant's eligibility for funding
did not arise "in the core of [a] criminal proceeding[]").

-13-
F.3d 1061, 1073-77 (7th Cir. 2009); In re Alexander Grant & Co.

Litig., 820 F.2d 352, 355 (11th Cir. 1987); Okla. Hosp. Ass'n v.

Okla. Publ'g Co., 748 F.2d 1421, 1424-26 (10th Cir. 1984), cert.

denied, 473 U.S. 905 (1985). Consistent with this authority, we

also have concluded that no right of access attaches to civil

discovery motions themselves or materials filed with them. See

Anderson, 805 F.2d at 11-13. Accord, Chi. Tribune Co. v.

Bridgestone, 263 F.3d 1304, 1312-13 (11th Cir. 2001); Leucadia,

Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 163-66 (3d

Cir. 1993).8

In sum, no presumptive right of public access, based

either in the common law or the First Amendment, attaches to the

Rule 17(c) subpoenas or the related documents filed in connection

with the underlying criminal prosecution in this case.

Consequently, access may be obtained only upon a showing of special

need. Cf. United States v. Corbitt, 879 F.2d 224, 237-39 (7th Cir.

1989) (articulating showing required for disclosure of

presumptively non-public pre-sentence report); United States v.

8
Edwards' attempt to distinguish criminal discovery from its
civil counterpart, by emphasizing that oversight of the use of Rule
17(c) subpoenas entails a level of court involvement that is absent
in civil discovery, falls short. It is true that, unlike civil
discovery, in order to enforce a pre-trial subpoena against the
government in a criminal case, a party must make a preliminary
showing of relevance, admissibility and specificity. Nixon, 418
U.S. at 700. Even if this requirement applies to third party
subpoenas, which is questionable, see Tomison, 969 F.Supp. at 593
n.14, the judge is not called upon to decide substantive issues but
merely to manage the production of potential evidence.

-14-
Charmer Indus., Inc., 711 F.2d 1164, 1175-76 (2d Cir. 1983) (same).

The district court was well within its discretion in concluding

that the generalized interest proffered by Edwards failed to

satisfy this standard. See, e.g., Charmer, 711 F.2d at 1177

(emphasizing that district court "of course has a fair measure of

discretion" in determining whether person seeking disclosure has

made an adequate showing of special need). We therefore affirm its

order as applied to the Rule 17(c) materials.

2. Sentencing Memoranda

Although we previously have not decided the precise

question of whether advocacy memoranda, commonly submitted by the

parties to the court in advance of sentencing, are "judicial

records" entitled to a common law presumption of access, we have

little doubt that they are. For starters, sentencing memoranda,

which bear directly on criminal sentencing in that they seek to

influence the judge's determination of the appropriate sentence,

fall squarely into the category of materials that a court relies on

in determining central issues in criminal litigation. We can

discern no principled basis for affording greater confidentiality

as a matter of course to sentencing memoranda than is given to

memoranda pertaining to the merits of the underlying criminal

conviction, to which we have found the common law right of access

applicable. See In re Providence Journal, 293 F.3d at 11. Far

from constituting a matter ancillary to adjudicatory proceedings,

-15-
see In re Boston Herald, 321 F.3d at 189-90 (excluding from the

presumption Criminal Justice Act ("CJA") eligibility documents);

Anderson, 805 F.2d at 13 (excluding documents presented to a judge

in connection with a discovery dispute), sentencing is an integral

phase in a criminal prosecution. Sentencing memoranda, which

contain the substance of the parties' arguments for or against an

outcome, are clearly relevant to a studied determination of what

constitutes reasonable punishment. Thus, like substantive legal

memoranda submitted to the court by parties to aid in adjudication

of the matter of a defendant's innocence or guilt, sentencing

memoranda are meant to impact the court's disposition of

substantive rights.

Public access to sentencing memoranda is consonant with

the values animating the common law right. "Access to judicial

records and documents allows the citizenry to monitor the

functioning of our courts, thereby insuring quality, honesty and

respect for our legal system." Standard Fin. Mgmt. Corp., 830 F.2d

at 410 (quoting In the Matter of Continental Ill. Secs. Litig., 732

F.2d 1302, 1308 (7th Cir. 1984)) (internal quotation marks

omitted). The presence of such oversight serves several values

when a court is called upon to exercise its discretion to impose a

criminal sentence. See, e.g., In re Hearst Newspapers, L.L.C., 641

F.3d 168, 179 (5th Cir. 2011) (noting the importance of openness in

sentencing given that "the court, rather than a jury, is

-16-
determining the sentence"). Public access in this context may

serve to "check any temptation that might be felt by either the

prosecutor or the court . . . to seek or impose an arbitrary or

disproportionate sentence," In re Washington Post Co., 807 F.2d

383, 389 (4th Cir. 1986); promote accurate fact-finding, see, e.g.,

United States v. Alcantara, 396 F.3d 189, 198 (2d Cir. 2005); and

in general stimulate public confidence in the criminal justice

system by permitting members of the public to observe that the

defendant is justly sentenced, see, e.g., In re Hearst Newspapers,

641 F.3d at 179-80. These salutary effects of access to sentencing

hearings also serve to support public access to sentencing

memoranda.

Accordingly, sentencing memoranda are judicial documents

subject to the common law presumption of public access.

3. Sentencing Letters

Edwards also claims a right of access to the sentencing

letters submitted by third parties on the defendants' behalf. A

majority of these letters were included as attachments to the

defendants' sentencing memoranda, although in Levitin's case

additional letters were sent directly to the district court. While

there is not much case law on this issue, those courts that have

addressed the question of whether there is a common law right of

access to sentencing letters typically have said that there is.

-17-
 There are obvious differences between third-party

letters submitted to the court and sentencing memoranda. Such

letters are often unguarded and informal, and they are frequently

emotion-laden. But their purpose is not so different. Having

concluded that the common law right of access attaches to

sentencing memoranda, it is but a small step to also conclude that

the right also extends to sentencing letters submitted in

connection with those memoranda. As illustrated by the defendants'

sentencing submissions in this case, such letters are central to,

and serve as an evidentiary basis for, the defendants' arguments

for leniency.

Here, Kravetz contended in her sentencing memorandum that

her involvement in the criminal scheme was an aberration (related

to mental health issues) from an otherwise law-abiding and

productive life. In support of this contention, she relied

primarily on letters from family members and friends. Levitin,

also relying on letters from family members, friends and medical

providers, argued that the sentencing court should take into

account his difficult upbringing and serious medical conditions,

his otherwise exemplary personal and work history, and Kravetz's

manipulative behavior.

The letters on which the defendants' averments relied not

only were submitted as attachments to their sentencing memoranda,

but also were expressly referenced and, in many instances, directly

-18-
quoted in those memoranda. The presumptive right of access plainly

attaches to these letters, which the defendants utilized and asked

the court to rely on in tailoring their arguments for leniency.

See United States v. Kushner, 349 F. Supp. 2d 892, 900-02 (D.N.J.

2005) (reviewing cases addressing letters submitted at sentencing

and concluding that "sentencing letters 'attached' to or referenced

in [a] defendant's sentencing memorandum are invariably disclosed,

as they are part of the public record"); cf. United States v. Dare,

568 F. Supp. 2d 242, 244 (N.D.N.Y 2008) (concluding that medical

records filed by defendant as attachments to his sentencing

memorandum were subject to public access); United States v. Sattar,

471 F. Supp. 2d 380, 385 (S.D.N.Y. 2006) (concluding that letter

and attached psychiatric report transmitted by defendant's counsel

to aid in sentencing were subject to public access).

The presumptive right of access is not limited to letters

annexed to the parties' sentencing submissions. Similar to them,

letters sent directly to the court by third parties are meant to

effect the judge's sentencing determination and thus "take on the

trappings of a judicial document under the common law." United

States v. Gotti, 322 F. Supp. 2d 230, 249 (E.D.N.Y. 2004); see also

United States v. Libby, No. 1:05-cr-00394 (D.D.C. May 31, 2007)

(No. 356); Kushner, 349 F. Supp. 2d at 906-911; United States v.

Lawrence, 167 F. Supp. 2d 504, 509 (N.D.N.Y. 2001). But see United

States v. Boeksy, 674 F. Supp. 1128, 1130 (S.D.N.Y. 1987). There

-19-
is, to be sure, a legitimate concern that the routine disclosure of

third-party letters may discourage valuable input from the

community during the sentencing process. See, e.g., Kushner, 349

F. Supp. 2d at 908-09. To the extent that such a concern might be

said to weigh against a general recognition of a presumption of

access to this category of documents, see, e.g., Leucadia, Inc.,

998 F.2d at 164-65 (weighing prudential considerations in

determining applicability of common law right of access (citing

Anderson, 805 F.2d at 12)), that concern ordinarily would appear to

be outweighed by positive gains. Cf. In re Globe Newspaper Co.,

920 F.2d 88, 91 (1st Cir. 1990) ("In a democracy, criminal trials

should not, as a rule, be decided by anonymous persons.").

The defendants offer only one reason why at least some of

the sentencing letters should not be considered judicial documents:

"because it is unclear whether the court relied upon them."

Pointing to the shorthand definition of "judicial documents" that

we sometimes use, see, e.g., Standard Fin. Mgmt. Corp., 830 F.2d at

408 (describing such documents as those "on which a court relies in

determining the litigants' substantive rights" (emphasis added)

(quoting Anderson, 805 F.2d at 13)), the defendants appear to

suggest that sentencing letters can be made part of the public

record only when it is first established that they "affect[ed] the

sentence."

-20-
 This argument is foreclosed by Standard Financial

Management. There, we explicitly rejected an approach to public

access that would turn on whether the documents at issue actually

played a role in the court's deliberations. Instead, we held that

documents relevant to the determination of the litigants'

substantive rights that came to the attention of the district judge

could "fairly be assumed to play a role in the court's

deliberations." Id. at 409. "To hold otherwise would place us in

the position of attempting to divine and dissect the exact thought

processes of judges . . . ." Id. "To avoid the necessity for such

mindreading," we held there, and reaffirm here, "that relevant

documents which are submitted to, and accepted by, a court of

competent jurisdiction in the course of adjudicatory proceedings,

become documents to which the presumption of access applies." Id.;

see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d

Cir. 2006) ("If the rationale behind access is to allow the public

an opportunity to assess the correctness of the judge's decision

. . . documents that the judge should have considered or relied

upon, but did not, are just as deserving of disclosure as those

that actually entered into the judge's decision." (quoting In re

Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust

Litig., 101 F.R.D. 34, 43 (C.D. Cal. 1984))). Like the letters

compiled and submitted by defendants' counsel, the letters

-21-
submitted directly to the court on Levitin's behalf are

presumptively accessible.9

B. PROCEDURAL CLAIMS

"Though the public's right of access is vibrant, it is

not unfettered. Important countervailing interests can, in given

instances, overwhelm the usual presumption and defeat access."

Siedle, 147 F.3d at 10 (citing Standard Fin. Mgmt., 830 F.2d at

410); see also Nixon v. Warner Commc'ns, 435 U.S. 589, 598 (1978)

("It is uncontested . . . that the right to inspect and copy

judicial records is not absolute."). When addressing a request to

unseal, a court must carefully balance the presumptive public right

of access against the competing interests that are at stake in a

particular case, see id., keeping in mind that "'only the most

compelling reasons can justify non-disclosure of judicial records'

that come within the scope of the common-law right of access." In

re Providence Journal, 293 F.3d at 10 (quoting Standard Fin. Mgmt.,

830 F.2d at 410). Edwards makes two procedural claims. He first

objects that the public docket did not accurately reflect all

sealed motions and documents and thus deprived the public of the

notice necessary to oppose closure. He also objects that the

9
We do not hold that an irrelevant document, that neither
was nor should have been relied on, is nevertheless a judicial
document and thus necessarily presumptively subject to disclosure.
But a document submitted to a court for the purpose of influencing
and adjudicatory proceeding ordinarily would be subject to the
presumption.

-22-
district court did not make particularized findings of fact in

support of its decision to seal the records at issue.

Taking up these claims, the government points to

provisions of the local rules of the United States District Court

for the District of Massachusetts that require a party seeking to

seal documents to file a motion with the district court "each time

a document or group of documents is to be filed," D. Mass. R.

7.2(e), and to accompany such motion with "a memorandum of reasons,

including citation of supporting authorities" as well as

"[a]ffidavits and other documents setting forth or evidencing facts

on which the motion is based," id. at 7.1(B)(1). Although agreeing

with Edwards that potentially interested parties should generally

be able to determine from the court's docket that a motion to seal

or a sealed document has been filed, the government argues that in

the usual case a reviewing court will be able to infer the district

court's findings from the contents of the motions, thereby

obviating the need for the issuance of specific findings every time

a document is sealed. Additional procedural requirements, it

argues, would be burdensome and impractical.

It is axiomatic that protection of the right of access

suggests that the public be informed of attempted incursions on

that right. Providing the public with notice ensures that the

concerns of those affected by a closure decision are fully

considered. Cf. In re Hearst Newspapers, 641 F.3d at 182 (noting

-23-
that the courts of appeals have uniformly required that notice and

an opportunity to be heard be given prior to the sealing of

documents to which a right of access attaches) (collecting cases).

"[S]afeguards that will protect the [access] rights of the public,

without unduly interfering with the workings of the judicial

process," Washington Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir.

1991), include a docket entry that a motion to seal has been filed.

See generally Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93

(2d Cir. 2004) ("[D]ocket sheets provide a kind of index to

judicial proceedings and documents, and endow the public and press

with the capacity to exercise their [access] rights . . . .").

Because, as the government notes, such motions frequently discuss

in some detail the material sought to be sealed, leave of court may

be requested to file the text of the motion and any supporting

materials under seal pending the district court's disposition of

the motion. E.g., Robinson, 935 F.2d at 289. That disposition

ordinarily is also reflected on the docket sheet but may, in

appropriate circumstances, be sealed. E.g., id.

We have reviewed thoroughly the record in this case and

find Edwards' concerns regarding the failure to docket to be

unsubstantiated. Although Edwards surmises that "there are

numerous secret sealed documents which do not appear on the public

docket at all," comparison of the entire record with the public

-24-
docket reveals that, with limited exception, the documents in this

case were reflected on the docket sheet.10

Edwards' second procedural claim is more substantial, as

the district court did not make particularized findings to support

the decision to seal. "Appellate courts have on several occasions

emphasized that upon entering orders which inhibit the flow of

information between courts and the public, district courts should

articulate on the record their reasons for doing so." In re

Associated Press, 162 F.3d 503, 510 (7th Cir. 1998). Those reasons

must be specific enough to permit a reviewing court to determine

whether sealing was appropriate. Cf. Press-Enter. Co. v. Superior

Courts, 464 U.S. 501, 510 (1984). The district court's one

sentence justification for the continued sealing here, intended to

apply to several documents filed by different parties at different

times, falls short.

Often, as the government argues, the court's

justification for sealing may be inferred from the substance of the

parties' motions. But this is not such an instance. Kravetz's

sentencing memorandum appears to have been filed directly under

10
The bulk of the documents for which the public docket
contained no entry were as-yet-unedited and therefore private
stenographer files. Although two presumptively accessible
documents were not reflected on the public docket -- specifically,
Levitin's sentencing memorandum and the court's docket-entry order
allowing that memorandum to be filed under seal -- the public was
nonetheless provided with notice of a potential sealing by virtue
of the docketing of the sealed motion to seal the memorandum.

-25-
seal without an accompanying motion setting forth the basis for

sealing, and her subsequent blanket statement that the materials

were "personal to her" did not compensate for that deficiency.

Levitin, although complying with the letter of the local rules,

stated in his motion to seal only that his sentencing submissions

contained "intimate personal information regarding his childhood,

health, and certain case-related events." Although general

references such as these offer some insight into a court's decision

to seal, they are in this case inadequate substitutes for the more

detailed explanation that the law requires. See Standard Fin.

Mgmt. Corp., 830 F.2d at 412 (emphasizing that sealing of judicial

documents "must be based on a particular factual demonstration of

potential harm, not on conclusory statements" (quoting Anderson,

805 F.2d at 7)). The defendants’ statements, standing alone, do

not provide a sufficient basis to preserve the sealing order.

C. REMAND

Although we conclude that the district court was required

to state with greater specificity its reasons for denying Edwards'

motion to unseal, we reject Edwards' proposed remedy for its

failure to do so. Citing our decision in In re Globe Newspaper

Co., Edwards argues that the absence of particularized findings

requires the immediate unsealing of the relevant documents. In In

re Globe, we held that "given the absence here of particularized

findings reasonably justifying non-disclosure, the juror names and

-26-
addresses must be made public." 920 F.2d at 98. That statement

must be read in context, however. We made clear that we deemed

disclosure to be appropriate in that case only after determining

that neither "the juror's individual desire for privacy" nor "the

judge's general belief that . . . it would be better to keep the

names and addresses private" constituted permissible grounds for

withholding jurors' identities from the public, and only after

noting the parties' concession that no special circumstances, such

as concern for the personal safety of jurors, were present to

justify non-disclosure. Id.

Unlike in In re Globe, the appropriate remedy in this

case is for the district court, in the first instance, to determine

whether the parties have offered sufficient justification for

sealing, and to articulate the reasons for its decision. See

Siedle, 147 F.3d at 10 ("The trial court enjoys considerable leeway

in making decisions of this sort. Thus, once the trial court has

struck the balance, an appellate court will review its

determination only for mistake of law or abuse of discretion.").

Our decision to remand requires that we address the

parties' disputes about the law governing the analysis that the

district court is to employ. In describing the limitations of the

public's common law right of access in Nixon v. Warner

Communications, the Supreme Court emphasized that "[e]very court

has supervisory power over its own records and files, and access

-27-
has been denied where court files might become a vehicle for

improper purposes." 435 U.S. at 598. As non-exhaustive examples

of documents to which courts had denied public access, the Court

referenced "records . . . used to gratify private spite or promote

public scandal" and "business information that might harm a

litigant's competitive standing." Id. (quotation marks and

citations omitted) (collecting cases).11 The defendants argue that

their own and third-party personal and business privacy interests

justify withholding broad swaths of the documents at issue from

public view.

1. Third-Party Personal Privacy Interests

The defendants first argue that the personal privacy

interests of third parties warrant the non-disclosure of several of

the sentencing letters and the redaction of identifying information

from all others. They assert that the third parties who submitted

letters on the defendants' behalf did so "in the expectation of

privacy" -- an expectation that they suggest defense counsel

fostered by promising that the documents would be filed under seal.

It is self-evident that counsel may not make any such binding

assurances about how a court would view such documents.12 The

11
The defendants intimate that we should consider Edwards'
"behavior and motives," but the record does not suggest any
improper purpose.
12
This is not to say, of course, that a court is prohibited
from considering the understanding that a letter-writer has about
the likely confidentiality of the letter to the court.

-28-
defendants say that, in any event, various letters contain personal

information which, if published, would impermissibly intrude upon

the privacy rights of the authors and other third parties.

"[P]rivacy rights of participants and third parties are

among those interests which, in appropriate cases, can limit the

presumptive right of access to judicial records." Standard Fin.

Mgmt. Corp., 830 F.2d at 411 (quotation marks omitted); accord In

re Boston Herald, 321 F.3d at 190-91. Third-party privacy

interests, in particular, have been referred to as "a venerable

common law exception to the presumption of access," United States

v. Amodeo ("Amodeo II"), 71 F.3d 1044, 1051 (2d Cir. 1995), and

"weigh heavily in a court's balancing equation," id. at 1050

(internal alterations and citation omitted).

Thus, we have said that courts should "consider the

degree to which the subject matter is traditionally considered

private rather than public." In re Boston Herald, 321 F.3d at 190

(quoting Amodeo II, 71 F.3d at 1051). "Financial records of a

wholly owned business, family affairs, illnesses, embarrassing

conduct with no public ramifications, and similar matters will

weigh more heavily against access than conduct affecting a

substantial portion of the public." 71 F.3d at 1051. Furthermore,

[t]he nature and degree of injury must also be
weighed. This will entail consideration not
only of the sensitivity of the information and
the subject but also of how the person seeking
access intends to use the information.
Commercial competitors seeking an advantage

-29-
 over rivals need not be indulged in the name
of monitoring the courts, and personal
vendettas similarly need not be aided. The
court should consider the reliability of the
information. Raw, unverified information
should not be as readily disclosed as matters
that are verified. Similarly, a court may
consider whether the nature of the materials
is such that there is a fair opportunity for
the subject to respond to any accusations
contained therein.
Id.

Applying this framework to the third-party personal

privacy interests asserted here, we note that some of the letters

contain discussion of the ill health of members of the authors'

families, incidents of domestic violence, and other domestic

relations matters. This information is highly personal and appears

to have no direct bearing upon the public's assessment of the

sentences imposed. Under these circumstances, the privacy

interests implicated by disclosure may overcome the presumption of

public access. See, e.g., Kushner, 349 F. Supp. 2d at 908; Gotti,

322 F. Supp. 2d at 250; Boesky, 674 F. Supp. at 1129.

Whether the balance of interests justifies withholding

from the public the identity of the authors, or the entire content

of each of the relevant letters, is a matter to be decided by the

district court. We note only that, where the public's right of

access competes with privacy rights, "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." United States v. Amodeo ("Amodeo I"), 44 F.3d

-30-
141, 147 (2d Cir. 1995); cf. In re Providence Journal, 293 F.3d at

15 (holding, in context of documents to which First Amendment right

of access attaches, that "[r]edaction constitutes a time-tested

means of minimizing any intrusion on that right").

2. Defendants' Personal Privacy Interests

The defendants also argue that their own privacy

interests justify the redaction of numerous additional documents.

Much of the information that the defendants seek to redact pertains

to personal medical matters, including details of Levitin's

physical health and mental health issues experienced by Kravetz.

The defendants argue that release of this "entirely private"

information "can have no legitimate purpose" and will, in fact,

result in "irreparable harm." On similar grounds, they argue that

information relating to personal and family history should be

withheld from public view.

Medical information is, as intimated above, "universally

presumed to be private, not public." In re Boston Herald, 321 F.3d

at 190. Acknowledging the presumptively private nature of medical

information does not end the matter, however. The privacy interest

in medical information is "neither fundamental nor absolute,"

Sattar, 471 F. Supp. 2d at 387 (citing, inter alia, Whalen v. Roe,

429 U.S. 589, 603-04 (1977)), and can be waived or otherwise

overcome by a variety of means. See generally Crawford v. Manion,

No. 96 Civ. 1236 (MBM), 1997 WL 148066, at *1-2 (S.D.N.Y. Mar. 31,

-31-
1997). In this case, Edwards argues that the defendants should be

deemed to have waived their right to privacy in the medical

information at issue by having voluntarily submitted it to the

court in an attempt to mitigate their sentences.

We are sensitive to the fact that medical documentation

such as that at issue here may contain information beyond the

diagnosis and treatment information that is likely to form the

basis of a plea for or grant of leniency. Medical records, for

example, frequently include "the details of a person's family

history, genetic testing, history of diseases and treatments,

history of drug use, sexual orientation and practices, and testing

for sexually transmitted diseases." U.S. Congress, Office of

Technology Assessment, Protecting Privacy in Computerized Medical

Information, OTA-TCT-576 (Sept. 1993). In addition, "[s]ubjective

remarks about a patient's demeanor, character, and mental state are

sometimes a part of the record." Id. Disclosure of this

peripheral information may only serve to "gratify private spite or

promote public scandal." Nixon, 435 U.S. at 598 (quoting In re

Caswell, 29 A. 259, 259 (R.I. 1893))(internal quotation mark

omitted); see also Amodeo II, 71 F.3d at 1051 ("Courts have long

declined to allow public access simply to cater to a morbid craving

for that which is sensational and impure" (quoting In re Caswell,

29 A. at 259) (internal quotation marks omitted)). We note again

that redaction remains a viable tool for separating this

-32-
information from that which is necessary to the public's

appreciation of the sentence imposed.

Levitin's claim of privacy in his medical records,

however, may lose some force in light of his prior publication of

the information that he now seeks to protect. See Cox Broad. Corp.

v. Cohn, 420 U.S. 469, 494–95 (1975) ("[T]he interests in privacy

fade when the information involved already appears on the public

record."); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 506 n.17

(1st Cir. 1989) (noting that "prior publicity weighs strongly

against sealing"). In his public sentencing hearing, he

articulated not only the full panoply of ailments from which he

suffers, but also the dire predictions for his health should he

fail to take immediate steps to improve his condition.

3. Business Interests

The final argument in favor of non-disclosure, unique to

Levitin's submissions, pertains to information about his business

interests and business associates who wrote letters on his behalf.

The harm claimed, potential "guilt by association," is without

substantiation, see Nat'l Org. for Marriage v. McFee, 649 F.3d 34

(1st Cir. 2011) (refusing to credit unsubstantiated allegation of

privacy concerns relating to the disclosure of business

relationships), cert. denied, 132 S. Ct. 1635 (2012), and is little

more than a fear of adverse publicity, which is insufficient to

defeat public access. E.g., Siedle, 147 F.3d at 10; Cent. Nat'l

-33-
Bank of Mattoon v. United States Dep't of Treasury, 912 F.2d 897,

900 (7th Cir. 1990); Brown & Williamson Tobacco Corp. v. F.T.C.,

710 F.2d 1165, 1179-80 (6th Cir. 1983).

III.

For the reasons provided herein, we affirm in part and

vacate in part the district court's order denying Edwards' motion

to unseal records in the underlying criminal case and remand for

further proceedings consistent with this opinion.

The parties shall bear their own costs.

-34-