In Re SEALED CASE

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 1999 Decided January 4, 2000

No. 99-3024

In re: Sealed Case

Appeal from the United States District Court
for the District of Columbia
(No. 98ms00058)

Theodore J. Boutrous, Jr. argued the cause and filed the
brief for appellants.

Before: Edwards, Chief Judge, Rogers and Tatel, Circuit
Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: Appellants in this case, a group of
news organizations, seek to require the District Court to
establish a public docket of grand jury ancillary proceedings
to facilitate greater access to information emanating from the
grand jury. The District Court denied appellants' request for

a generic rule requiring public docketing of all grand jury
matters. Appellants now appeal the judgment of the District
Court.

This is the second time that this case has come before this
court. In In re Motions of Dow Jones & Co., 142 F.3d 496
(D.C. Cir. 1998) ("Dow Jones"), this court held that there is
no First Amendment right of access to grand jury ancillary
proceedings. See id. at 502-04. The decision in Dow Jones
also made it clear that appellants have neither a statutory
right, apart from Federal Rule of Criminal Procedure 6(e),
nor a common law right of access to matters before the grand
jury. See id. at 504. The only issue left unresolved in Dow
Jones was the meaning of the District Court's Local Criminal
Rule 6.1 (formerly Local Rule 302, hereafter referred to as
"Rule 6.1"). Because Rule 6.1 "provides a limited means for
disclosing non-secret" grand jury matters, id. at 504, the
court in Dow Jones remanded the case to the District Court
to consider the feasibility of a redacted public docket for
grand jury ancillary proceedings. On remand, the District
Court declined to establish an open docket for all grand jury-
related motions. The District Court held that it was under
no legal obligation to establish a generic rule, and, further,
that such a rule would be unduly burdensome to administer to
no good end. See Mem. Order at 3-5, Jan. 20, 1999, reprint-
ed in Joint Appendix ("J.A.") 116, 118-20. Appellants appeal
this order, asking that we overturn the District Court's
decision, or, in the alternative, that we ensure that, pursuant
to Rule 6.1, press and other media organizations are allowed
to file motions for public docketing in individual cases.

The District Court's judgment denying appellants' request
for a generic rule requiring public docketing of all grand jury-
related matters is affirmed. There is no constitutional, statu-
tory, or common law right requiring such a rule; indeed, by
their own admission, appellants acknowledge that there is not
even a widespread practice of public docketing of grand jury
matters in the federal courts in the United States. In these
circumstances, it would be presumptuous, at best, for this

court to re-write the District Court's local rules covering
access to materials before the grand jury.

The appellants' alternative request for relief is less trouble-
some, for it finds support in Rule 6.1. Reasonably construed,
Rule 6.1 says that, with respect to grand jury ancillary
proceedings, when a party makes a request for a redacted
docket in a specific case, the District Court will duly consider
the request and will, if it denies the request, offer some
explanation. Any denial must, of course, be based on some-
thing more than the justification that explains the denial of
across-the-board docketing. Rule 6.1 would be heartless
without the possibility of such an ad hoc procedure, so we
have no doubt that the District Court will entertain such
requests as they arise.

I. BACKGROUND

The events giving rise to this appeal are fully recounted in
Dow Jones, so we will only briefly discuss the facts. Early in
1998, Independent Counsel Kenneth Starr convened a grand
jury to consider evidence relating to matters that eventually
led to presidential impeachment proceedings. See Dow
Jones, 142 F.3d at 497-98. The grand jury spawned a flood
of ancillary proceedings as witnesses challenged subpoenas
and objected to various aspects of the investigation. Under
Local Civil Rule 40.7(3), these ancillary proceedings were held
before the Chief Judge. Although grand jury proceedings
themselves are entirely secret, proceedings ancillary to the
grand jury are subject to slightly different rules. The Feder-
al Rules of Criminal Procedure require "matters affecting a
grand jury proceeding to be closed to the extent necessary to
prevent disclosure of matters occurring before a grand jury."
Fed. R. Crim. P. 6(e)(5). Local Criminal Rule 6.1, in turn,
provides that

[p]apers, orders and transcripts of hearings subject to
this rule, or portions thereof, may be made public by the
court on its own motion or on motion of any person upon
a finding that continued secrecy is not necessary to

 prevent disclosure of matters occurring before the grand
jury.

L.Cr.R. 6.1.

The press and other media services, quite predictably,
sought access to ancillary proceedings and related documents
emanating from the grand jury convened by the Independent
Counsel. Motions were filed with the District Court request-
ing access to certain proceedings and also asking the District
Court to establish procedures, including a public docket of all
ancillary proceedings, to facilitate media access. The District
Court, however, denied media requests to establish special
"procedures relating to public access to judicial proceedings
and records." Order, March 18, 1998, reprinted in J.A. 68
(internal quotation marks omitted). The media appealed, ar-
guing "that the blanket closure of judicial proceedings and
the failure to provide procedural safeguards prior to closure
violate the First Amendment." Dow Jones, 142 F.3d at 499
(internal quotation marks omitted).

The court in Dow Jones recognized that, under federal and
local rules, ancillary proceedings that do not reveal " 'matters
occurring before the grand jury' " need not be closed. Id. at
501 (citation omitted). Most importantly, however, the deci-
sion in Dow Jones held that the First Amendment does not
require the District Court to open grand jury ancillary pro-
ceedings. Rather, the court noted, Rule 6.1 "gives [the press]
the most it could expect from its constitutional claim." Id. at
500.

Rule 6.1 addresses motions and orders relating to proceed-
ings ancillary to the grand jury, providing that such matters
"shall be filed under seal" and that "[a]ll hearings on matters
affecting a grand jury proceeding shall be closed." L.Cr.R.
6.1. However, the rule also provides that matters "may be
made public by the court on its own motion or on motion of
any person upon a finding that continued secrecy is not
necessary to prevent disclosure of matters occurring before
the grand jury." Id. Thus, Rule 6.1 "provides a limited
means for disclosing non-secret matters." Dow Jones, 142
F.3d at 504; see also id. at 501 (noting that Local Criminal

Rule 6.1 "appears to mean only that, as an initial matter, all
proceedings relating to the grand jury shall be closed, subject
to an order opening the proceedings"). Given the possibility
of access afforded by Rule 6.1, the court in Dow Jones
questioned whether the District Court should establish an
administrative rule or procedure ensuring a redacted public
docket of grand jury ancillary proceedings. Noting that the
District Court had not explained the lack of a public docket,
the court remanded the case for further consideration.

On remand, the District Court declined to establish a public
docket of "materials filed in connection with any grand jury
proceedings." Mem. Order, Jan. 20, 1999 at 1, reprinted in
J.A. 116 (internal quotation marks omitted). The District
Court noted the importance of "secrecy to the proper func-
tioning of the grand jury system." Id. at 2, reprinted in J.A.
117. Because of the need for secrecy, the court pointed out,
any public docket would of necessity have to be "non-
descriptive" to "protect[ ] the identities of subpoenaed wit-
nesses and targets." Id. at 4, reprinted in J.A. 119. Such a
non-descriptive docket, the District Court held, would be of
only limited utility to the media while imposing undue admin-
istrative burdens on the trial court. The District Court
concluded that the administrative burdens, combined with
possible threats to grand jury secrecy, militated against a
public docket for all grand jury ancillary proceedings. There-
fore, the District Court ruled that it would "not waste either
its or the news organizations' time and resources by estab-
lishing such a docket." Id. at 5, reprinted in J.A. 120. The
appellants appealed.

II. ANALYSIS

Appellants argue that, under this court's decision in Dow
Jones, the District Court must establish a public docket for
all grand jury ancillary proceedings. Appellants thus seek an
order from this court requiring the District Court to maintain
such a public docket. Appellants are self-servingly generous
in their reading of Dow Jones, for the decision simply does
not mandate the result here sought. Indeed, as appellants'

counsel was forced to concede at oral argument, the request
for a generic rule requiring public docketing for all grand
jury ancillary matters is completely unprecedented; and, in
our view, the request is also unsupported and unavailing. We
therefore affirm the District Court's judgment on this score.
Appellants' alternative request--to allow parties to file mo-
tions pursuant to Rule 6.1 to request public docketing in
specific cases--is unnoteworthy, for it seeks nothing more
than what the rule already provides.

A. Public Docketing of All Ancillary Grand Jury Proceed-
ings

We begin by noting the extraordinary nature of appellants'
request: mandatory public docketing of grand jury ancillary
proceedings is virtually unknown in the federal courts. Ap-
pellants concede that they can point to no "practice" in the
federal courts imposing such a requirement on district courts.
And the decision in Dow Jones plainly establishes that there
is no constitutional, statutory, or common law principle re-
quiring such public docketing.

Appellants argue that, despite the absence of legal authori-
ty, we should take the uncharted step of imposing a require-
ment of public docketing on our District Court, because the
courts have upheld rights of public docketing and access in
other situations not involving grand jury matters. See Br. for
Appellants at 15-17. It is true that the courts have required
public docketing in some judicial proceedings. See, e.g.,
United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993)
(finding a public docket was necessary to protect the public's
and the media's constitutional rights of access to criminal
proceedings); Washington Post v. Robinson, 935 F.2d 282,
289 (D.C. Cir. 1991) (holding that motions to seal plea agree-
ments, for which there is a First Amendment right of access,
must be publicly docketed); In re State-Record Co., 917 F.2d
124, 128-29 (4th Cir. 1990) (requiring public docketing of a
criminal proceeding because of the constitutional right of
access); Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898
F.2d 1371, 1377 (8th Cir. 1990) (ordering court to produce a
redacted public docket of a sealed case to protect at least a

common law right of access); Stone v. University of Mary-
land Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988)
(requiring district court to maintain a public docket where
parties have at least a common law right of access to proceed-
ings); In re Knoxville News-Sentinel Co., 723 F.2d 470, 475-
76 (6th Cir. 1983) (admonishing district court to publicly
docket motions to seal proceedings where there is at least a
common law right of access). However, this legal authority
does not hold, or even suggest, that there must also be public
docketing of grand jury ancillary proceedings. As appellants
readily concede, the grand jury context is unique. It is
because of their unique status that grand jury processes are
not amenable to the practices and procedures employed in
connection with other judicial proceedings.

There is a plethora of authority recognizing that the grand
jury context presents an unusual setting where privacy and
secrecy are the norm. See, e.g., Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 218 (1979); In re Sealed Case,
151 F.3d 1059, 1069-71 (D.C. Cir. 1998). Indeed, as the
Supreme Court has noted, the grand jury is not even a part
of the judicial system. See United States v. Williams, 504
U.S. 36, 47 (1992) ("[T]he grand jury is an institution separate
from the courts."). The theory "of its function is that it
belongs to no branch of the institutional Government, serving
as a kind of buffer or referee between the Government and
the people." Id. That function depends on "maintain[ing]
the secrecy of the grand jury proceedings in the federal
courts." United States v. Procter & Gamble Co., 356 U.S.
677, 681 (1958). As the Court noted, "[s]ince the 17th centu-
ry, grand jury proceedings have been closed to the public,
and records of such proceedings have been kept from the
public eye." Douglas Oil, 441 U.S. at 218 n.9.

Unlike typical judicial proceedings, grand jury proceedings
and related matters operate under a strong presumption of
secrecy. See In re Sealed Case, 151 F.3d at 1069-71 (holding
that the sanctity of the grand jury process justified an
exception to the general rule of discovery in civil proceed-
ings); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509-10
(1st Cir. 1989) (holding that blanket sealing of all grand jury

records was justified, because grand jury context, unlike
other judicial proceedings, is presumptively closed); In re
Subpoena to Testify Before Grand Jury Directed to Custodi-
an of Records, 864 F.2d 1559, 1563 (11th Cir. 1989) (holding
that the rule of holding an open hearing before deciding to
close proceedings did not apply in the grand jury context).
The cases cited by appellants, involving situations other than
grand jury ancillary proceedings, are therefore inapposite.

In the instant case, involving grand jury ancillary proceed-
ings, appellants have a limited right of access pursuant to
Rule 6.1. As noted above, Rule 6.1 provides that when
"continued secrecy is not necessary to prevent disclosure of
matters occurring before the grand jury," ancillary proceed-
ings may be made public. L.Cr.R. 6.1. The District Court
has held that a mandatory public docket is not required by
the rule, and that to impose such a rule would be unduly
burdensome. We have no good reason to second-guess the
District Court's interpretation of its own rule, especially since
we review the District Court's decision for abuse of discre-
tion. See Federal Deposit Ins. Corp. v. Bender, 127 F.3d 58,
67 (D.C. Cir. 1997) (reviewing District Court's decision under
local rule for abuse of discretion). It cannot be said here that
the District Court abused its discretion in failing to promul-
gate a generic rule, beyond the compass of Rule 6.1, requiring
a public docket for all grand jury ancillary proceedings.
Accordingly, the judgment of the District Court is affirmed
on this point.

B. Alternative Procedure for Redacted Public Docketing
in Specific Cases

As an alternative to mandatory public docketing in all cases
involving grand jury ancillary proceedings, appellants request
a procedure whereby a party may file a motion pursuant to
Rule 6.1 seeking a redacted public docket in a specific case.
This alternative request for relief raises no momentous issue,
because the rule itself already allows for that which is being
sought.

Appellants' principal concern here is that they be given a
right to request public docketing in specific "high-profile"
cases. Counsel for appellants admitted that there is no

realistic possibility that the media ever will be unaware of
grand jury proceedings in a high-profile case. History defies
any such claim. Thus, appellants cannot reasonably assert
that they are unduly handicapped without a public docket for
all grand jury ancillary proceedings. Rather, they merely
contend that a rule requiring public docketing in all cases
might facilitate media attempts to uncover matters before a
grand jury. This is hardly a justification for an interpreta-
tion of Rule 6.1 beyond its terms. In point of fact, as counsel
acknowledged, the media invariably knows when to request a
public docket in a specific case; as a consequence, appellants
are able to take full advantage of the limited right of access
afforded by Rule 6.1 without the imposition of a public docket
covering all grand jury ancillary proceedings.

When a party makes a request under Rule 6.1 for a
redacted public docket in a specific proceeding, the District
Court must duly consider the request and, if it denies the
request, offer some explanation. The District Court's expla-
nation must bear some logical connection to the individual
request. In other words, it must rest on something more
than the administrative burdens that justified the denial of
across-the-board docketing, and it must be more substantial
than, say, an arguable possibility of leaks. This approach is
fully consistent with Rule 6.1; indeed, the rule would make
little sense without the possibility of such an ad hoc proce-
dure.

This alternative remedy was not directly addressed by the
District Court, because the matter was never pursued on
remand by appellants. Our decision here does not usurp the
legitimate administrative control that the District Court exer-
cises over its own docket. Rather, we simply agree with
appellants that Rule 6.1 means what it says in providing a
limited right of access with respect to grand jury ancillary
proceedings in which continued secrecy is not necessary to
prevent disclosure of matters before the grand jury.

III. CONCLUSION

The judgment of the District Court is affirmed insofar as it
rejects appellants' request for a generic rule requiring public

docketing of all grand jury ancillary proceedings. The case is
hereby remanded for further proceedings, as may be neces-
sary, consistent with the foregoing opinion.