concurring in part and dissenting in part.
I concur in Section A of the majority’s opinion relating to the gag order and do not address that issue in this opinion.
I concur in Section B of the majority’s opinion, but write separately to state my views on the issues of document sealing. This opinion does not address the District Court’s decision to stay the unsealing order.
For the reasons stated herein, I respectfully dissent from Section C of the majority’s opinion on the question of recusal and would order that this case be reassigned to a new judge.
I. Statement of Facts30
Cyril H. Wecht served for many years as the Allegheny County Coroner and as an expert in forensic pathology for numerous private clients, as well as for district attorneys and coroners in other counties. The Government essentially alleges that Wecht used county resources for his private clients, charged his private clients for certain items that were provided to him by the county government, and improperly exchanged unclaimed cadavers with a local college for use of its laboratory facilities for his private work.
Wecht claims that Wecht’s indictment arose from a political scheme led by one of his political enemies. He asserts, in part, a defense of selective prosecution. In particular, Wecht asserts that the District Attorney of Allegheny County, Stephen Zap-pala, and Wecht have been “engaged in a spirited debate caused by Zappala’s failure to investigate or prosecute white policemen who had killed black citizens in deaths ruled a species of homicide by Dr. Wecht.” Wecht maintains that Zappala publicly called for a federal investigation of Wecht in order to prevent Wecht from publicly inquiring into those deaths. He states that FBI Agent Bradley Orsini led the *222investigation of Wecht and also the “public corruption” investigations of other Democrats in Pittsburgh. Wecht also maintains that, in aggregate, forty-seven of the eighty-four count indictment relates to no more than $2000 in allegedly fraudulent expense reimbursements.
Pretrial Proceedings
On April 6, 2006, during pre-trial proceedings, the Government filed a motion seeking permission to file “the underlying motion under seal.” Although this motion was docketed, there was no “underlying motion” attached to it on the docket. Shortly thereafter, the District Court granted the motion to file the underlying motion under seal, making no findings as to why the document should be sealed. The next morning, at a pre-trial conference, defense counsel pointed out to the District Judge: “The motion that was filed under seal yesterday, we don’t even know what it is.” The Judge responded, “That’s right.” Defense counsel inquired further: “So, Your Honor says he is going to rule on the motion. Is it something that affects Dr. Wecht in some way because how are we supposed to respond to the motion?” The Judge replied, “You are not.” (Emphasis added.)
The “underlying motion” appears on the docket as filed on April 7, the same day defense counsel was told they would not know its contents. It was filed under seal and described on the docket only as a sealed Government motion. This sealed motion sought an “ex parte in camera” ruling as to whether certain materials unfavorable to the affiant, Agent Orsini, on two Wecht search warrants must be disclosed as exculpatory or impeachment information under Brady and Giglio.31 The Government requested, in the alternative, that if disclosure was required, the Court limit the materials’ use to only a redacted copy and only if Orsini testified at trial. Also, if disclosure were required, the Government asked for a protective order limiting the use of the materials. The District Court ruled on the Government’s motion promptly; in a sealed order, the District Court ordered the Government to turn over the materials to Wecht’s counsel. However, the District Judge specifically stated that because the documents constituted Brady/Giglio material, the Government need not disclose the materials until August (as set forth in the Pretrial Order). Because the order was sealed, only the Court and the Government knew its contents.
Contemporaneously on April 7, Wecht filed a motion to suppress certain evidence. In the motion, Wecht challenged the search warrants obtained in this case by Agent Orsini, alleging that Orsini fabricated statements in the probable cause affidavits, the warrants lacked probable cause and were “infected with [Orsini’s] deliberate and reckless falsehoods,” the warrants were facially defective, and Orsi-ni impermissibly used the warrants as general rights of seizure. Wecht maintained that a witness could testify that Orsini was an agent “with a known bad reputation within the FBI, including having urged witnesses to perjure themselves in a case involving his own misconduct.” The motion attempted, in part, to connect the dots between Wecht’s claim of selective and vindictive prosecution with Orsini and concerns about Orsini’s credibility. Wecht did not learn that the ex parte *223motion and sealed order related to Orsini’s credibility until several weeks later.
On May 1, when denying a motion for discovery pertaining to Orsini, the District Court mentioned that it had already ordered the Government to disclose certain Orsini materials under Brady/Giglio. Two days later, on May 3, the Government requested a protective order, covering both the ex parte motion and accompanying documents, that would limit defense counsel’s use of the documents if ultimately disclosed to them. Defense counsel and various media parties then filed various responses, notices, and briefs advising the Court that it had not made findings necessary for sealing the documents and opposing the Government’s proposed protective order.32 At a May 12 status conference, with the media present, the District Judge responded by entering a protective order and then finally showing only defense counsel the sealed materials. The protective order prohibited defense counsel from, among other things, “disclosing the contents or substance of the Confidential Information in open court absent prior approval of the Court obtained pursuant to a sealed submission or sealed sidebar .... ” In addition, the District Judge established a briefing schedule for consideration of whether the Orsini documents should be unsealed as to the public and set a hearing on that issue for the next month — June 5, 2006.
In the meantime, on May 17, the District Court admitted all of the Government’s approximately 1,300 trial exhibits (which constituted approximately 240,000 pages of documents) without considering any objections from Wecht, thereby eliminating the Government’s burden to authenticate or lay a foundation for any of them.33 The Court left open, however, “possible relevancy objections, which may result solely from future rulings on the Motion to Suppress or a Motion to Dismiss.”
In response to the procedures set forth in the protective order, defense counsel filed a motion on May 26, requesting permission to file a motion under seal to determine what portions of the reports they could use in “further proceedings.” At the time defense counsel filed this request, the anticipated “further proceedings” were (1) an unsealing hearing scheduled for June 5 and (2) a possible suppression hearing, which had not been scheduled yet because the Court had not ruled on Wecht’s motion to suppress, which included a request for a hearing. On May 31, however, the Court denied most of Wecht’s suppression motion, including his request for a hearing to establish that Orsini had falsified probable cause affidavits, but scheduled a limited hearing for June 8 with respect to only the seizure of certain “boxes” of documents.
On June 2, the Court denied Wecht’s May 26 motion to file a motion under seal in which Wecht would request to use certain statements from the Orsini reports in open court. As of the date the District Court denied the request, the potential “further proceedings” included a June 5 unsealing hearing and a June 8 limited suppression hearing. On June 5, at the unsealing hearing, the District Judge invited supplemental briefing on the unsealing *224issues, which effectively delayed the unsealing decision until after the suppression hearing on the “boxes” scheduled for June 8, 2006.
On June 13, the Court finally ordered the ex parte motion and exhibits (in unre-dacted form) unsealed, but stayed the order to allow the Government to appeal its decision. Notably, the Court denied the motion for unsealing as to Wecht, pointing out that Wecht failed to demonstrate a basis for unsealing the documents. Then, in the same order, the Court granted the motion as to the media interveners, explaining that the Government had “not established a compelling interest or good cause to justify the continued sealing of doc. no. 60.” Because of the stay order, the sealed materials have remained undisclosed to the public and not useable by Wecht to this day.
From this series of decisions, the Government appeals the District Court’s order unsealing the Orsini documents and Wecht has filed a petition of mandamus seeking recusal of the District Judge. Although the media parties challenge the District Court’s decision to stay its unsealing order, this opinion addresses only the Government’s appeal and Wecht’s petition for recusal.
II. Discussion
If this case illustrates any basic principle of justice, it is that secrecy and the right of the defendant and the public to a fair and open trial do not mix except in rare and unusual circumstances not presented by this case.
A. District Court’s Unsealing Order
The District Court in this case sealed the ex parte motion without making any findings to justify its sealing. This practice was improper and limited Wecht’s ability to prepare his defense. The majority in this case affirms the District Court’s decision to unseal the Orsini documents in part because the District Judge possessed the discretionary authority to unseal the documents or amend its previously issued orders. I agree that this Court should affirm the District Court’s decision to unseal the documents. I write separately, however, to assert that the District Court’s initial sealing of the documents rested on improper procedures and resulted in a “too little, too late” outcome.
The District Judge’s sealing of the ex parte motion and accompanying documents without any findings shifted the legal burden for sealing. The burden to justify sealing a document or for entry of a protective order is on the party seeking its sealing or protection, not, as imposed in this case, on the defendant. See Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 167 (3d Cir.1993). When a court considers the imposition of a seal, it must make particularized findings on the record, giving notice on the docket of such consideration and rejecting alternatives to closure. See United States v. Criden, 675 F.2d 550, 560 (3d Cir.1982). In this case, the District Court did not make any such findings. The Government merely filed a motion requesting permission to file the underlying motion under seal. No underlying motion was attached and no reasons were given justifying closure. Even the underlying motion did not address justifications for sealing the documents, but concerned whether certain documents constituted Brady/Giglio material. Rather than imposing on the Government the burden to justify sealing the motion, the Court sealed the motion from the outset and then the media and Wecht were forced *225to spend months briefing the Court as to why the motion should be wtsealed.
During those intervening months, while the motion and accompanying documents remained sealed, the Court denied Wecht’s motion to suppress and his counsel was prevented from using any of the documents at the limited hearing regarding the seizure of the “boxes.” The sealed materials about Agent Orsini were relevant and of crucial importance to the suppression motion, which alleged that Orsini had fabricated statements in the probable cause affidavits. Yet the District Judge denied Wecht’s request to file a motion under seal to determine which portions of the documents could be used in court and how.34 Notably, in its decision unsealing the documents, the District Court explained precisely how the documents had been rendered useless to Wecht:
Defendant argues that he wishes to have doc. no. 60 unsealed so that he may use the information therein at any hearing on the motion to suppress (doc. no. 55), or at trial, to impeach FBI Agent Orsini ... However, since defendant’s motion to suppress (doc. no. 55) has been denied, the first part of the defendant’s argument is moot.... Secondly, since the government has indicated that it does not intend to call Special Agent Orsini at trial (see doc. no. 60, page 6), defendant’s “for use at trial” argument is also moot at least until such time as the government states that Special Agent Orsini will in fact testify at trial.... Thirdly, defendant contends that he intends to call Special Agent Orsini at trial. Since Agent Orsini is not a “fact” witness, the Court does not see the relevancy of his purported testimony, even though counsel for defendant continually seeks to label him as the “main accuser.” Thus, defendant’s motion to unseal is DENIED.
But, at the time the Government requested permission to submit the ex parte motion under seal, these matters had not yet been resolved. The Court relieved the Government of its burden to show good cause as to why the documents should be sealed and then, after the Government had attempted to eliminate the usefulness of the documents by stating Orsini would not be called as a witness, the District Judge denied Wecht’s requests to unseal them because they lacked useful purpose.
As to the media, the District Judge ultimately determined that the Government had failed to demonstrate good cause to justify the documents’ continued sealing. Yet, as demonstrated above, this relief even for the media is too little, too late. Even though the public will gain access to the documents, the time has passed for Wecht to use them to challenge Agent Orsini’s testimony in the suppression hearing. The Government thus benefitted by the improper sealing of the documents and Wecht has been deprived of using the information about Agent Orsini contained therein in its suppression motion or at any suppression hearing.
The District Court did not merely have the discretion to unseal the ex parte motion and its exhibits, but was obligated under the law to unseal the documents. *226My concurrence rests on this basis, not on the basis of the District Court’s discretion.
B. Recusal of the District Judge
Although I concur (separately) in the majority’s decision affirming the District Court’s unsealing order, I dissent from its opinion with respect to Wecht’s petition for mandamus requesting recusal of the District Judge. I dissent to express my opinion that we should remove the District Judge from this case either under 28 U.S.C. § 455(a) or our supervisory powers.
1. The Standard for Recusal
The decision to remove a judge from an ongoing trial should be considered seriously and made only rarely. This Court may order the recusal of a judge pursuant to 28 U.S.C. § 455(a) for the appearance of partiality or reassign the case to a new judge under its supervisory powers. See 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”); Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“Federal appellate courts’ ability to assign a case to a different judge on remand rests not on the recusal statutes alone, but on the appellate courts’ statutory power to ‘require such further proceedings to be had as may be just under the circumstances,’ 28 U.S.C. § 2106.”).35
“The test for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be questioned.” In re Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir.2004); see also Virgin Islands v. Walker, 261 F.3d 370, 376 (3d Cir.2001) (focusing on appear-anee of impartiality when reassigning sentencing judge who appeared to have inappropriately considered defendant’s decision to plea bargain); Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 164-68 (3d Cir.1993) (reassigning a case from a judge who appeared to have aligned with the defense); Haines v. Liggett Group, Inc., 975 F.2d 81, 98 (3d Cir.1992) (exercising supervisory power to reassign judge because it was “impossible for us to vindicate the requirement of ‘appearance of impartiality’ in view of the statements made in the district court’s prologue to its opinion”). Significantly, appearance alone is sufficient to warrant relief on mandamus because “ ‘while review after final judgment can (at a cost) cure the harm to a litigant, it cannot cure the additional, separable harm to public confidence that section 455 is designed to prevent.’ ” See Alexander, 10 F.3d at 163 (quoting In re School Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992)). In addition, the “appearance of impropriety must be viewed from the perspective of the objective, reasonable layperson.” Kensington, 368 F.3d at 303.
In Liteky, the Supreme Court explained that although an extrajudicial source may be a practical necessity for establishing prejudice or bias, it is only a factor. See 510 U.S. at 554-56, 114 S.Ct. 1147. Without an extrajudicial source, the judge must reveal deep seated or a high degree of antagonism to evince bias. See id. at 555-56, 114 S.Ct. 1147. As the majority notes, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion” because “[i]n and of themselves ... they cannot possibly show reliance upon an extrajudicial source.” Id. at 555, 114 S.Ct. 1147.
*227The circumstances of this case present the rare occasion when a judge’s judicial rulings demonstrate the appearance of bias because they began with and were possibly tainted by improper, or at least highly questionable, ex parte advocacy by the Government. This ex parte advocacy was tantamount to an extrajudicial source and permeated the rulings of the District Court such that one cannot avoid discerning the appearance of partiality.
2. Ex Parte Advocacy
As set forth previously, on April 6, the Government filed a motion with the Court requesting permission to file the “underlying motion” under seal. The underlying motion appeared on the docket as filed on April 7 and remains sealed from the public. The ex parte motion was entitled “In Camera Ex Parte Motion for Ruling As To Whether Possible ‘Impeachment/Credibility’ Information Must Be Disclosed.” The Government filed it under seal, and, as previously observed, without the Court having made any findings for good cause to seal the motion.
The Code of Conduct for United States Judges prohibits ex parte communications except in certain circumstances not presented by this case. See Code of Conduct for U.S. Judges Cannon 3 § A(4) (2003). As this Court stated in Kensington,
ex parte communications run contrary to our adversarial trial system. The adversary process plays an indispensable role in our system of justice because a debate between adversaries is often essential to the truth-seeking function of trials.... If judges engage in ex parte conversations with the parties or outside experts, the adversary process is not allowed to function properly and there is an increased risk of an incorrect result.
368 F.3d at 310. Although the ex parte communication in Wecht’s case was not a verbal conversation, as in Kensington, a motion presents the same concerns for the adversarial process because counsel’s assertions remained unchecked by opposing counsel. Moreover, as in a verbal conversation, the Government and the District Judge exchanged and conveyed information to one another. In these ways, ex parte communications, including ex parte advocacy, can function as an extrajudicial source. Cf. Kensington, 368 F.3d at 308 n. 18, 310 (noting that ex parte conversations with experts constitute extrajudicial knowledge).
The ex parte motion constituted advocacy.36 It spans nine typed pages and also attaches both unredacted and proposed redacted versions of “reprimand reports” relating, in part, to Agent Orsini’s reputation for truthfulness. The Government devotes more than a page of the motion to the accomplishments and accolades previously earned by Orsini, including numerous awards he has received and high profile cases he has investigated. Then the Government briefly describes the contents of the reprimand reports that concern Agent Orsini and downplays their significance. The Government next recites certain “facts” of the case.
The Government argues to this Court that its motion was not ex parte communications, but rather a benign ex parte filing:
The government simply filed one (1) document in camera (after providing defense counsel with notice of its intention *228to do so) in order to ensure its compliance with its Brady/Giglio obligations. This single, and completely appropriate, in camera written filing hardly supports Wecht’s accusations that the District Court and the government “engaged in an ex parte practice,” ....
The Government, however, mischarac-terizes the content of its motion. It did not merely submit a document for in camera review, but rather, as described above, argued to the Court why the materials were not covered by Brady/Giglio. The motion set forth facts about Orsini not already in evidence, explained the Government’s intention to limit Orsini’s role in the trial, characterized Orsini’s role in the investigation, cited case law and made arguments as to why Brady/Giglio did not require disclosure of the documents.
Wecht knew the existence of a motion, but was unaware of its subject matter and was told by the Court that he would remain so. Under these circumstances, the Government’s motion remained untested by the adversarial process. Moreover, as in Kensington, the ex parte motion concerned not merely procedural matters, but went to the very heart of the proceeding. See id. at 310. Brady disclosures, after all, are matters of constitutional significance. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
It is helpful to refer to a portion of the ex parte motion’s content in order to illustrate how the Government’s motion went beyond a mere in camera submission to the Court. For example, the Government represented to the District Court in the ex parte motion that Agent Orsini “was one of the case agents involved in the investigation,” the Government did not intend to call Orsini to testify at trial, and “Special Agent Orsini was the affiant on two search warrants that resulted in the seizure of evidence, but the evidence seized with those warrants will be introduced by other witnesses actually involved in the creation, chain of custody, and maintenance of that evidence.” (Emphasis added and internal footnote omitted).
Wecht’s counsel would and could have contested these “facts” as presented by the Government.37 Wecht’s defense rests, in part, on selective prosecution and he maintains that Orsini was not merely “one of the agents,” but the lead investigator who was influenced by Stephen Zappala to investigate him. Moreover, the Government’s ex parte motion attempts to diminish Orsini’s role in the handling and chain of custody of the evidence. At the suppression hearing on the “boxes,” however, the “other agents” to whom the Government may have been referring presented testimony that they turned over the evidence to Orsini after it was seized and deferred to Orsini’s directions during the seizure as to the scope of the warrants. Agent Welsh testified that he twice called Agent Orsini during the search to clarify and narrow the search parameters, seeking advice as to how to know which “boxes” to seize. Agent Welsh also testified that it was Orsini who instructed that “box 20” be seized, although later clarifying that it was a collective decision. Agent Swim testified that he signed over the evidence, once seized, to Agent Orsini.
The Government contends that the District Court Judge’s ruling in favor of Wecht on the Government’s motion undercuts any suggestion of bias. Yet the District Court’s ruling, whether for or against *229the Government, cannot overcome that the Government explained to the Court its strategy to keep Orsini off the witness stand, without giving Wecht a chance to listen or respond. Through its advocacy, the Government disclosed to the Court that Orsini had credibility problems and it planned to limit his presence at trial. The Government also indicated its desire to delay disclosure of the Orsini materials until trial and even then, disclose them only if Orsini testified at trial. Despite the Court’s ruling in favor of Wecht as to whether the materials constituted Brady/Giglio materials, the Court relied on the advocacy within the motion. Notably, when explaining why the documents would be of no use to Wecht in its ultimate unsealing order, the District Court cited to document 60. Even this small citation reinforces the way in which the ex parte advocacy may have influenced the District Judge, as it indicates that he relied on it when making subsequent decisions.
The Government sought to protect the Orsini materials with two alternative requests: (1) that the Orsini materials would never be disclosed or, (2) if required to disclose the documents, only with redaction and under a protective order, and only if Orsini testified at trial. The Government also represented to the District Court that the documents would not be useful to Wecht because it did not plan to call Orsini to testify at trial, notwithstanding that Orsini appears to be the lead FBI agent investigating Wecht’s case. The Court, despite ordering the documents to be turned over to Wecht, followed the requests of the Government in the ex parte motion by entering a series of rulings that made the documents unavailable or unusable up until the present time.
The Government and the majority also downplay the appearance of partiality created by the ex parte motion by citing to cases such as United States v. Dent, 149 F.3d 180, 191 (3d Cir.1998) and United States v. Bocra, 623 F.2d 281, 285 (3d Cir.1980), which would appear to condone the practice of in camera review. These cases, however, bear two important distinctions from the case at hand. First, although the Court in Dent and Bocra reviewed potential Brady materials in camera, there is no indication that either party engaged in ex parte advocacy in those cases, as the Government did in this case. See Dent, 149 F.3d at 191; Bocra, 623 F.2d at 284-86. In addition, in both Bocra and Dent, defense counsel was at least aware that an in camera inspection of potential Brady materials was taking place, which was not the case here.38 See Dent, 149 F.3d at 191; Bocra, 623 F.2d at 284-86. The Government should be careful to distinguish in camera review from ex parte motion practice.39
*2303. Other Rulings
Considering all of the above, the ex parte motion submitted to the District Court closely resembles an extrajudicial source that heightens the appearance of bias in Wecht’s case so far. But, just as consideration of an extrajudicial source does not require recusal, see Liteky, 510 U.S. at 554-55, 114 S.Ct. 1147, neither should consideration of ex parte communications. Alone, the Court’s consideration of ex parte advocacy likely would not evince bias sufficient to warrant relief for Wecht. Yet the District Court’s consideration of the ex parte motion created a backdrop against which its future rulings appear, in substance and in timing, questionable.
In Alexander, this Court explained that we need not decide the merits of each allegation against the judge; rather, the “appropriate-and the only-inquiry to which we must respond is ‘whether a reasonable person, knowing all the acknowledged circumstances, might question the district court judge’s continued impartiality.’ ” 10 F.3d at 164 (citation omitted). Thus, without determining or evaluating the merits of the District Court’s rulings, this opinion examines the picture the District Judge painted in his courtroom and asks whether a layperson, given all the facts, would reasonably believe Wecht was receiving an impartial trial.
a) April 7 Sealed Order. In the sealed order requiring the Government to turn over the Orsini materials to the defense, the District Judge reminded the Government that Brady/Giglio materials could be withheld until August (as set forth in the Pretrial Order). Brady does not require early disclosure, see United States v. Kaplan, 554 F.2d 577, 580 (3d Cir.1977), but this Court has explained that it is preferable for Brady materials to be disclosed well in advance of trial. See, e.g., United States v. Starusko, 729 F.2d 256, 261, 264 (3d Cir.1984) (describing “longstanding policy of encouraging early production”); Kaplan, 554 F.2d at 581 (“[W]e disapprove and discourage a practice of delayed production of Brady materials.”). Given such precedent and admonition, that Wecht had filed a motion to suppress raising the very concerns about Agent Orsini that the yet-undisclosed materials addressed, and that the Government’s ex parte motion explained its desire to delay disclosure of the materials, an informed layperson would reasonably ask: Why would the District Judge suggest such a delay to the Government?
b) Admission of Evidence. On May 17, 2006, the Court admitted all of the Government’s approximately 1,300 trial exhibits without considering any objections from Wecht and eliminating the Government’s burden to authenticate or lay a foundation for them.40 The Court left open, however, “possible relevancy objections, which may result solely from future rulings on the Motion to Suppress or a Motion to Dismiss.” The District Judge’s ruling, at this point, effectively eliminated the Government’s evidentiary burdens on foundation and potentially reduced Orsini’s role in the case. The only remaining avenue for *231Wecht to challenge Orsini’s involvement and conduct in handling the evidence was the motion to suppress. Thus, subject to the pending motion to suppress, the Government would no longer need Orsini to lay the foundation for any of the evidence. An informed layperson would reasonably ask: Why would the District Judge admit approximately 240,000 pages of documents, without foundation, as trial exhibits?
The majority appears to agree that the Court acted improperly in its treatment of the trial exhibits, but declines to infer an appearance of bias because the District Judge ultimately cured his mistake by considering the objections. However, the Court finally considered Wecht’s objections to the Government’s exhibits after rejecting numerous pleas from defense counsel to reconsider his order or modify the pretrial order. Also, the District Judge’s ultimate consideration of Wecht’s objections to the exhibits failed to undo the damage done. This so-called cure led to the admission of numerous documents as trial exhibits that appear to have no good use at trial. Wecht’s counsel included in his petition a list of items that have now been admitted as trial exhibits. Some of these items include photocopies of blank compact disc covers, a brochure for a nursing home litigation seminar, and multiple handwritten notes with no identifying features. An informed layperson would reasonably ask: Does the Government sincerely intend to use all of these documents as trial exhibits?
The Court, while supposedly reviewing an average of 34,000 documents a day, seems to have overruled virtually all of Wecht’s objections as to relevance, hearsay, authentication, foundation, and chain of custody — qualifying the documents as business records, government records, or personal records. The Court stated: “Interestingly, defense counsel’s ‘good faith objections’ even challenge the ‘foundation’ and ‘chain on [sic] custody’ of defendant’s own records, including personal tax returns, corporate tax returns, and corporate general/profit loss ledgers .... Countless other business records of Dr. Wecht are objected to on the basis of ‘Relevance (FRE 402); Hearsay (FRE 802); Authentication (FRE 901); Foundation; and Chain of Custody.’ ” Perhaps Wecht’s objections could have been more specific, but the Court’s comment expresses exasperation with defense counsel for asking the Court to require the Government to establish the basic features of admissibility provided under the Federal Rules of Evidence.
The documents to which the Court refers may indeed constitute business records; however, it is the Government’s burden, as the proponent of the evidence, to provide the foundational elements that show each document qualifies for the business record exception to the hearsay rule under FRE 803(6). Wecht is under no obligation to stipulate to those features.
It is a hallmark of partiality for one party not to be put to its burden. The admission of this evidence without foundation testimony appears to have advanced the Government’s stated goal of keeping Orsini off the witness stand. Although the Government may have intended to call witnesses other than Orsini to lay the foundation for its exhibits, in any event, the District Judge’s wholesale admission of evidence precluded the Government from having to call Orsini for such purpose. An informed layperson would reasonably ask: Why did the Court obviate, even upon reconsideration, the Government’s burden to lay the foundation for evidence it intended to use at trial? 41
*232c) June 2 Denial of Request to File Motion Under Seal. In response to the procedures set forth in the protective order, on May 26, Wecht filed a request to file a motion under seal. If permitted to file the motion, Wecht intended to request to use certain statements from the Orsini reports in open court. The Court denied Wecht’s request in a docket text order on June 2. Presumably, the District Judge considered Wecht’s request premature because a hearing on whether the documents would be unsealed was only three days away. Naturally, if the Court unsealed the documents at that hearing, the request would be moot. Conversely, it would have been inappropriate to discuss, in open court, the contents of sealed documents in the context of a hearing on whether to maintain the seal.
Yet the Government did not oppose the motion and the Court did not advise defense counsel that it would reconsider the motion if the documents remained sealed after June 5. Then, on June 5, at the unsealing hearing, the District Judge invited supplemental briefing on the unsealing issues, which effectively delayed the unsealing decision until after the “boxes” suppression hearing scheduled for June 8, 2006. Now, Wecht’s May 26 motion was no longer moot because the Court’s ruling on the unsealing motion would occur after the suppression hearing. Rather than hearing out defense counsel, who might have been able to clarify its intended use of the reports (whether or not they would ultimately remain sealed or unsealed), the District Judge denied defense counsel’s request to even make a motion under seal. Hearing such motion might have clarified Weeht’s intended use of the documents at not only the unsealing hearing, but also the suppression hearing.
An informed layperson would reasonably ask: Why, if the protective order set forth procedures for requesting permission to use the sealed documents (which Wecht followed, and the Government did not oppose), did the Court deny Wecht’s counsel the opportunity even to ask, under seal, how it might use the contents of the documents? Such a layperson also would reasonably ask: Why, at the very time when the documents arguably are most relevant, would the Court restrict Wecht from even asking how he might use them?
d) Limited Suppression Hearing. At the suppression hearing on the boxes, Agent Welsh testified that he telephoned Agent Orsini, who was elsewhere, during the seizure to clarify the scope of the seizure and to assist in determining whether to take “box 20.” On cross examination, counsel for Wecht then attempted to ask Agent Welsh how well he knew Agent Orsini. Counsel for the Government objected and the Court sustained the objection for relevancy. Later, the District Judge asked Agent Swim and counsel for the Government whether someone was going to testify as to the chain of custody of the boxes to “clarify that issue.” Counsel *233for the Government responded that he had not envisioned that as an issue for the hearing, but that the agents could testify about chain of custody. Agent Swim then testified that he gave Agent Orsini the evidence after seizing it, which would put Orsini directly in the chain of custody.
Agent Orsini was scheduled to testify at the suppression hearing sometime after Agent Swim. Although Orsini testified at the suppression hearing, Wecht was precluded from challenging his credibility with the Orsini documents because of the strictures of the protective order in place.
After a recess, the District Judge changed his mind and decided to exclude chain of custody from the scope of the hearing. Certainly a trial judge has the discretion to limit examinations to a relevant scope and may change his mind as to that scope, but, an informed layperson would reasonably ask (in light of the Government’s statements in its ex parte motion that “other witnesses” (other than Orsini) were “actually involved in the creation, chain of custody, and maintenance of [the] evidence”): Was the District Judge attempting to further the Government’s goal not to use Orsini for foundation or chain of custody when he curtailed chain of custody testimony?
e) June IS Unsealing Order. On June 13, the Court finally ordered the ex parte motion and Orsini documents unsealed, but in an unusual order. First, the Court denied the motion for unsealing as to Wecht, pointing out that Wecht failed to demonstrate a basis for unsealing the documents. Then, in the same ruling, the Court granted the motion as to the media interveners, explaining that the Government had “not established a compelling interest or good cause to justify the continued sealing of doc. no. 60.” As to Wecht, the Court placed the burden on him to justify unsealing the documents, but as to the media, the Court placed the burden on the Government.
This is a strange and unsettling ruling as to Wecht in contrast to the media. If a document is unsealed, it is unsealed to the world. The distinction between unsealing the Orsini materials on a motion by the media, but not Wecht, creates an appearance of hostility, if not partiality. An informed layperson would reasonably ask: Why did the District Court treat the media differently than Wecht? 42
f) Review of Box 20. Wecht argues that the FBI improperly seized “box 20” because the box’s label, “Flo-for Wecht law firm,”43 would have placed it outside the scope of the search warrant. The “Wecht law firm” refers to Wecht’s wife’s law firm, which shared office space with the Defendant. When the District Court concluded that the FBI properly seized “box 20,” it cited, in part, to the “plain view doctrine.” Neither party, including the Government, argued that the box was lawfully seized pursuant to this doctrine. The District Court devised this justification for the seizure without briefing or suggestion by either party.
This opinion does not express any conclusion as to the correctness of that decision or the propriety of the seizure, as the *234parties have not asked this Court to decide whether the District Judge erred in this respect. Nonetheless, in order to discern whether the District Court’s use of the plain view doctrine suggests an appearance of bias, one must, to some extent, consider whether it may have been misapplied. “Under the plain view exception, law enforcement authorities must have been lawfully on the premises, the discovery must have been inadvertent, and the incriminating nature of the item must have been immediately apparent.” United States v. Scarfo, 685 F.2d 842, 845 (3d Cir.1982) (emphasis added). Box 20 was found, lid closed, in a storage room in the shared office space of Wecht and his wife’s law office. The Agents were given specific direction not to seize any items belonging to the Wecht law office. The Agents testified that the box was a bit unusual in part because it bore a label, “Flo — for the Wecht law Firm” on it. The Agents testified that they opened the lid of the box and found files pertaining to ongoing or recent Wecht autopsies. Under these circumstances, it is questionable for the District Court to have concluded that the incriminating nature of the contents of a closed box was immediately apparent.
Moreover, the District Judge acknowledged that he also based his suppression decision on his own in camera review of the contents of the box. The question posed to the District Court by Wecht was whether the box was lawfully seized. The Court, without alerting either Wecht or the Government, reviewed contents of the box and determined that they fell within the scope of the warrant. By undertaking a review of the contents of the box, rather than considering the method and manner by which the Government seized the box, the Court deprived Wecht of an opportunity to refute the Court’s conclusions about the contents prior to the Court making them. It cannot escape notice that a review of the manner and method of seizure would have included inquiry into the conduct of Agent Orsini, who, by his own testimony, played a key role in the seizure of box 20.
Although a trial judge may properly discern a legal justification in his decisions without prompting by the parties, given the prior context of this case and the possible misapplication of the plain view doctrine, the District Judge’s choice enhances suspicions that the Court was favorably disposed to the Government. Given the background, particularly the District Judge’s prior admission of the Government’s other evidence without consideration of foundation or objections, an informed layperson would reasonably ask: Did the District Court Judge strive to reach a result favorable to the Government?
4. Threats of Contempt
Wecht also argues that threats of contempt and antagonistic remarks made by the District Judge contribute to an appearance of bias. “Just as reassignment is necessary if reasonable observers could believe that improper outside contacts influenced a judicial decision, so too is reassignment necessary if reasonable observers could believe that a judicial decision flowed from the judge’s animus toward a party rather than from the judge’s application of law to fact.” Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C.Cir.2006) (internal citations omitted). Although such expressions of impatience or anger are not alone sufficient to warrant recusal, see Liteky, 510 U.S. at 555, 114 S.Ct. 1147, in this case they may contribute to the overall appearance of partiality considering the other circumstances described above. See Cobell, 455 F.3d at 334 (“But we need not decide whether such charges, standing *235alone, require reassignment, for the charges do not stand alone.”).
Wecht describes two instances in which the District Judge may have threatened his counsel with contempt proceedings. First, on May 12, 2006, the Court stated: “If any counsel believes the opposing counsel is violating the order of the Court and/or the local rule, they should file a motion to have the opposing counsel adjudged in civil contempt and I will hold a hearing.” This comment, although on its face applicable to either party, was made in the context of the Government’s complaint to the Court about defense counsel’s extrajudicial comments. The specter of contempt during that proceeding was aimed at defense counsel.44
Second, in its memorandum of opinion denying Wecht’s motion for reconsideration on the admission of the Government’s trial exhibits, the Court stated: “After the trial, the Court will schedule a contempt hearing to adjudicate whether defense counsel’s conduct in repeatedly ignoring this Court’s Pretrial Order without taking appropriate steps to modify said Order constitutes contempt and, if so, what would be the appropriate penalty.” The Court cited In re Morrissey, 168 F.3d 134 (4th Cir.1999), a case in which the penalty adjudged against counsel was ninety days imprisonment, three years’ probation, two years’ suspension for “knowingly violating a local rule.” See id. at 137.
While it is certainly within the province of a trial judge to require counsel to comply with its orders, repeated threats can create the appearance of bias when unjustified or can bolster a pre-existing appearance of bias. See Cobell, 455 F.3d at 333-35. While the District Judge’s warnings appear harsh in this case, the record is insufficient to determine whether they were improper or contribute to the appearance of bias against Wecht -or his counsel.
5. Recusal Conclusion
In summary, the materials relating to Orsini constituted Brady/Giglio materials and the Government knew disclosure of the documents would harm its case before a jury and the public. The Government ex parte sought to protect this information with two alternative requests: (1) that the Orsini materials would never be disclosed or, (2) if required to disclose them, only under redaction and protective order, and only if Orsini testified at trial. The Government also represented to the District Court that the documents would not be useful to Wecht because it did not plan to call Orsini to testify at trial, notwithstanding that Orsini appears to be the lead FBI agent investigating Wecht’s case.
The District Court, without notice or input from Wecht, relied on the ex parte representations by the Government and followed the requests of the Government by making the documents unavailable o'r unusable up until the present time. Many of the Court’s rulings that followed this initial ex parte procedure appear to have been made in furtherance of the Government’s goal to limit Orsini’s connection to the case or, at a minimum, to favor the Government. On this basis, the unbiased observer would reasonably question the District Judge’s impartiality.
As noted at the outset of my recusal discussion, this opinion does not suggest that the District Judge harbors actual bias in this case. He is undoubtedly bright, *236hard working, and has sincerely attempted thus far to administer justice in a highly publicized, hard fought case litigated by experienced counsel. Yet as this Court has stated before, that is not the test for recusal. See Kensington, 368 F.3d at 294. The circumstances of this case, particularly given the content and circumstances of the ex parte motion, compel the conclusion that a reasonable person, with knowledge of all the facts, would conclude that the District Judge’s impartiality might reasonably be questioned. See id. at 301.
Nonetheless, a judge must be able to rely on counsel for the parties, which have a duty of'candor to the court, to inform the judge’s decisions. In this case, the Government’s ex . parte practice appears to have influenced the Court to exclude defense counsel from the adversary process with respect to the Orsini documents. The chain of motions and proceedings that followed in part flowed from the 'secrecy surrounding the Orsini documents. Moreover, the flood of evidence that the Government transferred to the defense, as trial exhibits, and the Government’s efforts to keep Orsini’s record hidden from the defense and the public raises-serious concerns about the propriety of the Government’s strategy. All parties in this ease, through their counsel, have an obligation to assist the courts and to see that justice is administered fairly. ■
In summary,"and with reluctance, it is my view that another judge should preside over the trial of Wecht and, therefore, I dissent from the majority. This Court should grant Wecht’s petition for mandamus disqualifying the District Judge from further presiding over the criminal trial of Wecht and authorizing the Chief Judge to assign the case to another judge.
. While this opinion accepts the majority's statement of facts, it restates some of them with additions as necessary to address the issues discussed in this separate opinion.
. As the majority notes, in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the government must turn over exculpatory evidence to defendants. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court held that impeachment evidence constitutes Brady material.
. The media parties, two newspapers and two television stations, moved to intervene on May 12, filing various motions to be heard on issues and procedures regarding sealing and closure, to unseal the case and records, and to object to the gag order.
. Because the majority capably describes the dispute between defense counsel, the Government, and the District Judge which led to the admission of these exhibits, this opinion does not restate it.
. The majority explains that this order cannot be construed to mean that the District Judge restricted defense counsel from using the Orsini documents at the "boxes” suppression hearing because defense counsel could have sought clarification of the Court's "lack of specificity.” I disagree. The Court’s order indicated that Wecht could not even seek permission under seal to use certain statements in court and the protective order remained in full effect. It was not unreasonable for Wecht to understand the order to mean that under no circumstances could he use the documents during the suppression hearing.
. Defense counsel, all experienced attorneys, state that among them none have previously brought a motion to recuse a federal judge. They appear to have done so here only with reluctance and careful consideration.
. While the effect of this Court's opinion on the unsealing order will be to unseal these documents, this opinion does not herein reveal the contents of the ex parte motion or its exhibits except generally or as necessary for explanation. This opinion also does not disclose the specific contents of the reprimand reports, which were attached to the ex parte motion.
. This opinion does not suggest that the Government misrepresented facts to the District Court, but notes these factual inconsistencies to illustrate how the Government’s motion needed the adversary process.
. Moreover, this Court’s determinations in the Bocra and Dent cases concern whether, on a post-conviction basis, these practices satisfied the requirements of Brady. That is not the issue before this Court; this opinion rather evaluates whether this ex parte practice contributed to the appearance of bias in Wecht's case.
. Other cases cited by the Government similarly fail to support its ex parte motion practice in this case. In United States v. Hsu, 155 F.3d 189 (3d Cir.1998), this Court remanded an action to permit the District Court to undertake in camera review of certain documents to determine whether they had been properly redacted. See id. at 205-06. In the Lindh case in the Western District of Virginia, the District Court appears to have undertaken ex parte in camera review of potential Brady materials. See United States v. Lindh, 2002 WL 1974284, *1 (E.D.Va.2002). However, in the Lindh case, it also appears from an earlier, similar review of materials that the government followed the practice of submitting an application to the court requesting permission to make an ex parte in camera motion, providing the defense notice and an opportunity to respond, prior to actually doing so. *230See United States v. Lindh, 198 F.Supp.2d 739 (E.D.Va.2002); see also Joint Appendix at 728-41. In neither the Hsu case nor the Lindh case did a court endorse the practice of submitting nine pages of advocacy that remained unchecked or unknown by opposing counsel in connection with in camera review of Brady/Giglio materials.
. As explained in the fact section above, because the majority capably describes the dispute between defense counsel, the Government, and the District Judge which led to the admission of these exhibits, this opinion does not re-summarize it here; the decision's effect is the relevant consideration.
. In his memorandum of opinion denying reconsideration of admission of the Govern*232ment’s trial exhibits, the District Judge describes his reliance on The Elements of Case Management: A Pocket Guide for Judges (2006) and Manual for Complex Litigation (4th ed.) (2006). These texts do not apply to criminal trials. The Manual specifically states: "because civil and criminal case management differ significantly ... this edition only deals with civil litigation.” Manual, supra at 2 (emphasis added). Similarly, the Pocket Guide describes itself as a "pithy guide to the essential steps in managing a civil case.” Pocket Guide, supra at v (emphasis added). The rules pertaining to case management of complex civil litigation do not apply to criminal trials for which the Constitution and case law provide safeguards for a fair trial. While there is a necessity for organization and efficiency in any trial, those interests must be balanced against the rights of a criminal defendant: a man’s liberty is at stake.
. The District Court only showed defense counsel the Orsini documents at a May 12 status conference once the media became involved and in the media’s presence. The District Judge had previously indicated that Wecht would not get to know the subject matter of the sealed materials, but changed his mind once in the media’s presence. An informed layperson also reasonably might have asked on May 12: Why did the District Judge appear to treat the media differently than Wecht?
. "Flo” presumably refers to Flo Johnson, a private assistant for Wecht Pathology.
. Moreover, when defense counsel expressed concerns with the local rule, combined with such "risk of contempt,” and their cumulative effect of chilling speech and advocacy, the Court advised defense counsel to "hire a First Amendment lawyer that’s an expert in the field to advise you if you are having difficulty understanding it.”