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
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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[]").
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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.
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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,
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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
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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.
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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
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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
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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."
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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
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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.
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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
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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
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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
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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.
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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.
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