In Re Special Proceedings

United States Court of Appeals
For the First Circuit

No. 03-2052
No. 04-1383

IN RE: SPECIAL PROCEEDINGS.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Jonathan M. Albano with whom Bingham McCutchen LLP, William P.
Robinson III, Edwards & Angell, LLP, Susan E. Weiner, Brande M.
Stellings and National Broadcasting Company, Inc. were on brief for
appellant-third-party witness James Taricani.
Laura R. Handman, Jeffrey L. Fisher, Davis Wright Tremaine
LLP, Henry S. Hoberman, ABC, Inc., David A. Schulz, The Associated
Press, Levine Sullivan Koch & Schulz, L.L.P., Jonathan S. Piper,
Blethen Maine Newspapers, Preti Flaherty Beliveau Pachios & Haley
LLC, Susanna M. Lowy, CBS Broadcasting Inc., David C. Vigilante,
Cable News Network LP, LLLP, Stuart D. Karle, Dow Jones & Company,
Inc., Barbara W. Wall, Gannett Company, Inc., Eve B. Burton,
Jonathan Donnellan, The Hearst Corporation, Gordon Yamate, Knight-
Ridder, Inc., Kenneth M. Vittor, William Farley, The McGraw-Hill
Companies, Inc., George Freeman, The New York Times Company, Rene
P. Milam, Newspaper Association of America, Stephen Fuzesi, Jr.,
Newsweek, Inc., Jan F. Constantine, NYP Holdings, Inc., Russell F.
Coleman, The Providence Journal Company, Belo Corp., Lucy A.
Dalglish, The Reporters Committee for Freedom of the Press, Robin
Bierstedt, Time Inc., Stephanie S. Abrutyn, Karlene Goller, Tribune
Company, Eric N. Lieberman and WP Company LLC, d/b/a The Washington
Post, on brief for ABC, Inc., The Associated Press, Blethen Maine
Newspapers, CBS Broadcasting Inc., Cable News Network LP, LLLP, Dow
Jones & Company, Inc., Gannett Company, Inc., Globe Newspaper
Company, Inc., The Hearst Corporation, Knight-Ridder, Inc., The
McGraw-Hill Companies, Inc., The New York Times Company, Newspaper
Association of America, Newsweek, Inc., NYP Holdings, Inc., The
Providence Journal Company, The Reporters Committee for Freedom of
the Press, Time Inc., Tribune Company, and The WP Company LLC,
d/b/a The Washington Post, Amici Curiae.
Marc DeSisto with whom DeSisto Law, Joan McPhee, William S.
Eggeling and Ropes & Gray LLP were on brief for appellee United
States of America and the Special Prosecutor.

June 21, 2004
 BOUDIN, Chief Judge. This appeal is an outgrowth of two

federal corruption cases involving city officials in Providence,

Rhode Island. One set of indictments--the Glancy case--named tax

officials Joseph Pannone, David Ead, and Rosemary Glancy. See In

re Special Proceedings, 291 F. Supp. 2d 44, 47 (D.R.I. 2003). The

second indictment--the Corrente case--also named Pannone in

addition to Frank Corrente, who was Providence Mayor Vincent A.

Cianci, Jr.'s administrative director; a superseding indictment

handed down in the Corrente case on April 2, 2001, added the mayor

and three other defendants. Id.

On August 8, 2000, while Corrente was awaiting trial and

the grand jury investigation of other, later named defendants was

continuing, the district court entered a protective order

prohibiting counsel in the Corrente case from disclosing the

contents of audio and video surveillance tapes that had been made

by law enforcement officials and furnished to defense counsel

during discovery. The aim was to safeguard the on-going grand jury

investigation of Cianci and to avoid pretrial publicity that could

prejudice the defendants' right to a fair trial. In re Special

Proceedings, 291 F. Supp. 2d at 47.

The order, assented to by both sides, read:

Upon Motion of the government, and with the
consent of all parties, and for good cause
having been shown, it is hereby ORDERED that
the consensual audio and video recordings
("Recordings") discoverable in the above-
captioned matter shall be subject to the

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 following protective order. Counsel are
hereby ordered not to disclose the contents of
said Recordings to any persons other than the
defendant or those deemed essential by counsel
for the preparation of their client's defense,
or in the case of the government, in the
preparation for trial or as part of any
continuing investigation. All motions or
other filings which cite any portion of the
Recordings other than by reference shall be
filed under seal until further order of this
Court. Nothing in this order shall prevent
any party from moving for relief from this
order for good cause shown.

The order was entered by Judge Lagueux. On April 10, 2001, just

after the handing down of the superseding indictment, the case was

transferred to Chief Judge Torres.

On February 1, 2001, while the grand jury investigation

of Cianci was still in progress, James Taricani, an investigative

television reporter, and his employer WJAR Channel 10, a Providence

television station owned and operated by NBC, aired one of the

videotapes. In re Special Proceedings, 291 F. Supp. 2d at 46-47.

The tape in question showed a government witness handing Corrente

an envelope that allegedly contained a cash bribe for Corrente

and/or Cianci. Id. at 47. Who leaked the tape was not disclosed:

Taricani said he had given the source a pledge of confidentiality.

Defendants then asked the district court to investigate

whether any participant in the case had violated the protective

order by leaking the tape to Taricani and, if so, to impose

appropriate sanctions. On May 31, 2001, the district court issued

an order stating in part:

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 The release and/or disclosure of the
contents of the aforesaid videotape is a
serious matter. Such acts, if continued,
could threaten the rights of all parties to a
fair trial. In addition, the release and/or
disclosure appear to have violated both the
confidentiality of Grand Jury proceedings and
the August 8, 2000, protective order. If so,
such release and/or disclosure may constitute
criminal contempt. See, Fed. R. Crim. P. R.
6(e).

The order continued by explaining that such a matter

would ordinarily be referred to the Department of Justice for

investigation; but because government prosecutors were involved in

the pending case against Corrente and others, the court decided to

appoint Marc DeSisto, a private attorney (who had formerly been a

prosecutor), to act as special prosecutor to investigate the

disclosure and to prosecute for criminal contempt anyone against

whom adequate evidence was uncovered.

After interviewing approximately fourteen individuals and

deposing several, and "[h]aving exhausted what he believed to be

all other means of obtaining the information necessary to conclude

his investigation," DeSisto sought and received the issuance of a

subpoena by the court requiring Taricani to appear for a

deposition. In re Special Proceedings, 291 F. Supp. 2d at 47. At

the deposition, Taricani refused to answer any questions regarding

the identity of the person from whom he had received the tape,

asserting a "newsman's privilege" not to reveal confidential

sources. Id. at 47-48. DeSisto then filed a motion to compel,

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which the district court granted after a hearing on October 2,

2003. Id. at 47-48, 60.

Following an abortive appeal from the order compelling

testimony, which this court dismissed as premature, Taricani

appeared at a February 13, 2004, deposition. Again he refused to

answer questions about his source for the tape. After a hearing,

the district court on March 16, 2004, found Taricani in civil

contempt, gave him until noon the following day to purge himself of

the contempt order by answering the questions posed by the special

prosecutor, and ordered him to pay a sum of $1,000 a day for each

day thereafter until he complied.

Taricani then sought review, and a stay, of the civil

contempt order. We granted a stay of the order pending expedited

review; our stay order expressed doubts about Taricani’s prospects

(in light of Branzburg v. Hayes, 408 U.S. 665 (1972)), but said

that the claimed threat to First Amendment interests justified a

stay, given our expedition of the appeal and the lack of

demonstrable harm from a brief further delay in the investigation.

On appeal, Taricani first argues that because the

district court failed to ask the government to pursue the criminal

proceeding, the appointment of the special prosecutor violated Fed.

R. Crim. P. 42(a)(2), the Supreme Court decision that prompted it,

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787

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(1987), and separation of powers principles said to underlie the

Young decision.

Young overturned a lower court decision appointing a

self-interested special prosecutor to pursue a contempt proceeding.

Young, 481 U.S. at 802, 814. However, the Young decision also said

that the rationale for a court to appoint its own prosecutor was

“necessity” and therefore “a court ordinarily should first request

[the government] to prosecute contempt actions, and should appoint

a private prosecutor only if that request is denied.” Id. at 801.

Rule 42 was amended in 2002 (“to reflect the holding in Young,”

advisory committee note) by adding the following language:

Appointing a Prosecutor. The court must
request that the contempt be prosecuted by an
attorney for the government, unless the
interest of justice requires the appointment
of another attorney. If the government
declines the request, the court must appoint
another attorney to prosecute the contempt.

Fed. R. Crim. P. 42(a)(2).

Taricani, of course, has been held in civil contempt–-not

criminal contempt governed by Rule 42-–but the civil contempt arose

out of the investigation by, and at the request of, DeSisto who was

appointed to conduct a criminal contempt investigation governed by

Rule 42 and Young. Taricani’s view is that the supposed Rule

42/Young violation is so fundamental that it undermines the

district court’s authority to compel by civil contempt answers to

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questions propounded by such a prosecutor in a criminal proceeding

even if the court wants them answered.

Some case law suggests that Taricani may not be entitled

to resist a court’s otherwise lawful order to answer by pointing to

some antecedent defect in the proceedings. See United States

Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S.

72, 76-77 (1988); Blair v. United States, 250 U.S. 273, 282 (1919).

And, despite Taricani’s claim to the contrary, no defect in the

special prosecutor’s commission affects the “subject matter

jurisdiction” of the district court over a proceeding to detect and

punish violations of its orders.

Nevertheless, Taricani has a direct and immediate

interest in whether he is held in civil contempt and the alleged

flaw could be judicially redressed, so a case or controversy exists

within the meaning of Article III. See Steel Co. v. Citizens for

a Better Environment, 523 U.S. 83, 102-03 (1998); Mangual v.

Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). Whether Taricani

can contest the prosecutor’s authority is primarily a matter of

prudential standing doctrine--not Article III, cf. Secretary of

State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 955

(1984), and DeSisto’s authority vel non should be resolved.

Young says that the government should “ordinarily” be

asked to handle contempt prosecutions; Rule 42(a)(2), which the

Supreme Court approved as a gloss on Young, says that it must be

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asked to do so “unless the interest of justice requires the

appointment of another attorney.” Fed. R. Crim. P. 42(a)(2). So

the district court was entitled to appoint DeSisto without asking

the government to handle the case if the district court permissibly

found that "the interest of justice require[d]" it. The district

court made such a finding and the question before us is whether its

finding should be upheld.

“Interest of justice” is a general and widely used

phrase. E.g., Fed. R. Crim. P. 21(b), 33(a); Fed. R. Civ. P.

26(d); 28 U.S.C. §§ 1404(a), 1631 (2000). Application of such a

legal standard to known facts presents an issue of law, but one

usually inviting deferential review.1 This is so because of the

standard's generality, the range of circumstances to which it must

be applied, and the district court's familiarity with the unique

facts of a case. Cf. United States v. Roberts, 978 F.2d 17, 21-22

(1st Cir. 1992).

Taricani suggests that because Young is allegedly

constitutional doctrine, no deference should be given to the

district court's ruling and we should engage in de novo review.

But Young was not expressed as a constitutional requirement; the

decision imposed a prudential limitation explicitly grounded in the

court's supervisory power. Young, 481 U.S. at 790. Thus we need

1
Stewart Org., Inc., 487 U.S. at 29-30; In re Middlesex Power
Equipment & Marine, Inc., 292 F.3d 61, 69 (1st Cir. 2002); Cianbro
Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987); In re
Globe Newspaper Co., 920 F.2d 88, 93 (1st Cir. 1990).

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not consider whether de novo review is required for all law-

application issues involving constitutional issues. Compare United

States v. Frederick, 182 F.3d 496, 499 (7th Cir. 1999) (Posner,

C.J.), cert. denied, 528 U.S. 1154 (2000), with id. at 503-05

(Wood, J., concurring).

On the merits, the district judge had multiple reasons

for concern about having the government handle the matter. The two

corruption cases, yet to be tried, were the subject of much public

attention. If the investigation focused on the defense attorneys–-

one possible source of any leak–-government attorneys might seem to

be harassing an adversary. See FTC v. Am. Nat. Cellular, 868 F.2d

315, 319 (9th Cir. 1989). Further, as the prosecution was also a

possible source of the leak, some might think that the government

could not be fully trusted to pursue its own lawyers.2

Taricani says that the Department of Justice has

procedures that would allow government prosecutors from outside

Rhode Island to take over if that were needed (citing United States

Attorney's Manual, §§ 3-2.170; 3-2.171; 3-2.220 (2000 Supp.)).

This sometimes resolves any actual conflict of interest, see United

States v. Vlahos, 33 F.3d 758, 763 n.5 (7th Cir. 1994); cf. United

States v. Caggiano, 660 F.2d 184, 190-91 (6th Cir. 1981), cert.

2
Indeed, on April 9, 2001, the lead prosecutor for the
government notified the district court that he had himself violated
the terms of the protective order by playing for three other
persons not necessary to the case a portion of the same videotape
at issue in this case. See In re Providence Journal Co., Inc., 293
F.3d 1, 5 (1st Cir. 2002).

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denied, 454 U.S. 1149 (1982), but this solution would not

necessarily have banished the public impression of a conflict in

this case. Young itself was importantly concerned with the public

impression left by the choice of prosecutor. 581 U.S. at 811.

We would not ourselves have been troubled if the district

court had tendered the contempt investigation to the Department of

Justice on the understanding that it would be handled by another

federal prosecutor's office rather than by the Rhode Island U.S.

Attorney. But the district court was far more familiar than an

appellate court with the conditions in Rhode Island and the extent

of the surrounding publicity. Its decision that the interest of

justice required a special prosecutor was not unreasonable or

otherwise improper.

Taricani argues that the district court's decision to

appoint a special counsel was “prejudicial” for two reasons:

because under regulations of the Attorney General, a government

prosecutor allegedly could not have subpoenaed Taricani to testify

and because a government prosecutor, proceeding through a grand

jury, would have been subject to greater checks than a special

prosecutor. Having concluded that it was not "error" to appoint a

special prosecutor, the question whether any error was prejudicial

is beside the point.

So far as Taricani is arguing that the Attorney General's

regulations should be imposed on DeSisto by the courts, the short

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answer is that a government prosecutor could have subpoenaed

Taricani consistent with the regulations. These require that

reasonable grounds exist to believe that a crime has occurred and

that prior efforts have been made by the prosecutor to get the

necessary information from non-media sources. 28 C.F.R. §§

50.10(b),(f)(1)-(3) (2003). The regulations are not themselves

binding on the special prosecutor;3 but, as the same requirements

could be urged as a matter of judicial discretion, we explain

briefly why they would not affect the outcome in this case.

First, Taricani says that there is no firm proof that

anyone violated the protective order, pointing out that the order

was directed to "counsel" and that other persons may have had

access to the tapes. This may assume too narrow a reach for the

protective order, but it does not matter: there is certainly a

reasonable possibility that counsel, or someone in league with

counsel, leaked the tape. DeSisto is entitled to investigate the

reasonable possibility of criminal contempt; certainty is not

required.

3
The regulation states that "the following guidelines shall be
adhered to by all members of the Justice Department in all cases,"
28 C.F.R. § 50.10 (2003), but a special prosecutor is not a member
of the Justice Department. The regulations also say that "[t]he
principles set forth in this section are not intended to create or
recognize any legally enforceable right in any person." Id. §
50.10(n). Case law points in the same direction, see In re Shain,
978 F.2d 850, 853-54 (4th Cir. 1992); cf. Yongo v. INS, 355 F.3d
27, 31 (1st Cir. 2004).

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 Second, Taricani argues that there are no findings by the

district court that DeSisto exhausted other possible sources of

information. Yet, the special prosecutor described to the district

court his prior efforts to unearth the leaker without the

reporter's help, stating that he had exhausted realistic

alternatives. In re Special Proceedings, 291 F. Supp. 2d at 47.

Taricani does not identify as a likely source of the information

sought anyone beyond the fourteen witnesses interviewed or deposed.

As for the lack of checks on the special prosecutor, we

agree that–-special circumstances aside--the optimal arrangement

for criminal prosecution is for a government lawyer to take the

lead. But special prosecutors drawn from outside the executive

branch have an established history and more recent judicial

sanction, Young, 481 U.S. at 794-802; and the concern about an

appearance of conflict of interest made the case special. Judicial

oversight is available if a prosecutor oversteps the bounds.

Taricani’s principal substantive argument on appeal is

that it violates the First Amendment to hold him in civil contempt

for refusing to answer questions as to who leaked the taped

material to him. When he refused to answer, the civil contempt

citation followed. The First Amendment argument is an uphill one

in light of the Supreme Court's Branzburg decision, but it has

several facets and we take them in order.

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 In Branzburg, the Supreme Court flatly rejected any

notion of a general-purpose reporter's privilege for confidential

sources, whether by virtue of the First Amendment or of a newly

hewn common law privilege. Id. 408 U.S. at 682, 690-91, 701. The

Court stressed inter alia the importance of criminal

investigations, the usual obligation of citizens to provide

evidence, and the lack of proof that news-gathering required such

a privilege. Id. at 685-707. Justice Powell, who wrote separately

but joined in the majority opinion as the necessary fifth vote,

also rejected any general-purpose privilege. Id. at 709-10.

Branzburg governs in this case even though we are dealing

with a special prosecutor rather than a grand jury. Taricani says

that there ought to be a stiffer test for special prosecutors but

the considerations bearing on privilege are the same in both cases.

This is the view of all three circuits that have recently dealt

with variants of the problem.4 A now elderly Ninth Circuit case

deemed Branzburg to be limited to grand juries, Farr v. Pitchess,

522 F.2d 464, 468 (9th Cir. 1975), but reached the same result on

a balancing test.

What Branzburg left open was the prospect that in certain

situations--e.g., a showing of bad faith purpose to harass--First

Amendment protections might be invoked by the reporter. 408 U.S.

4
McKevitt v. Pallasch, 339 F.3d 530, 531, 533 (7th Cir. 2003);
United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); In Re
Shain, 978 F.2d 850, 852 (4th Cir. 1992).

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at 707-08. Lower court cases in this circuit5 and elsewhere6 have

underscored this possibility of limits although often finding

nothing extraordinary about their own facts. One distinguished

judge has questioned whether Branzburg now offers protection much

beyond what ordinary relevance and reasonableness requirements

would demand, see McKevitt, 339 F.3d at 532 (Posner, J.), but our

own cases are in principle somewhat more protective.

The three leading cases in this circuit require

"heightened sensitivity" to First Amendment concerns and invite a

"balancing" of considerations (at least in situations distinct from

Branzburg). Cusumano, 162 F.3d 716-17; LaRouche, 841 F.2d at 1182-

83; Bruno, 633 F.2d at 596-99. In substance, these cases suggest

that the disclosure of a reporter's confidential sources may not be

compelled unless directly relevant to a nonfrivolous claim or

inquiry undertaken in good faith; and disclosure may be denied

where the same information is readily available from a less

sensitive source. See Cusumano, 162 F.3d at 716-17; LaRouche, 841

F.2d at 1180; Bruno, 162 F.3d at 597-98.

5
Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998);
United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988);
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st
Cir. 1980); see also In re Grand Jury Proceedings Involving
Vickers, 38 F. Supp. 2d 159, 162 n.3 (D.N.H. 1998).
6
E.g., United States v. Smith, 135 F.3d at 969; In re Grand
Jury Proceedings, 5 F.3d 397, 400-02 (9th Cir. 1993), cert. denied,
510 U.S. 1041 (1994); In Re Shain, 978 F.2d at 852-53; In re Grand
Jury Proceedings, 810 F.2d 580, 586 (6th Cir. 1987).

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 How far these constraints may be constitutional

requirements (as opposed to prudential considerations) is

unsettled; the Supreme Court twice rejected any automatic

requirement that non-confidential sources be exhausted. Univ. of

Pa. v. EEOC, 493 U.S. 182, 201 (1990); Branzburg, 408 U.S. at 701-

02. In all events, in this case there is no doubt that the request

to Taricani was for information highly relevant to a good faith

criminal investigation; and, as already noted, that reasonable

efforts were made to obtain the information elsewhere.

Taricani next argues that the original August 8, 2000,

protective order, whose apparent violation spurred the special

prosecutor’s inquiry, is itself unlawful for lack of specific

findings to show need. The original protective order, consented to

by both sides, did not contain explicit findings of need, but the

potential of the tapes to taint prospective jurors was so obvious

that it did not need to be spelled out. It is enough to note that

the tape broadcast by Taricani could be interpreted as recording an

actual pay-off implicating high level officials.7

7
We bypass the question whether Taricani has standing to
contest an order that did not apply to him, see In re Globe
Newspaper Co., 729 F.2d 47, 50 & n.2 (1st Cir. 1984)(doubting
without deciding); Application of Dow Jones & Co., Inc., 842 F.2d
603, 606-07 (2d Cir.), cert. denied, 488 U.S. 946 (1988), and the
separate question, noted above, whether the defects alleged by
Taricani are of a sort that would permit him to disobey the order.
See United States Catholic Conference, 487 U.S. at 76-77; Blair,
250 U.S. at 282.

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 Alternatively, Taricani complains that the original

protective order was too narrow (and therefore pointless and

invalid) because it was directed only to counsel on both sides.

Others, says Taricani, would also have had access to the tapes

(e.g., the agents who originally made the tapes). To us it is

enough that the protective order--entered in connection with the

turning over of the tapes to defense counsel--even-handedly

prohibited disclosure by counsel on both sides and dealt with

obvious sources of disclosure.

Next, Taricani complains that the $1,000-a-day fine

threatened is "punitive"; but its obvious purpose is to compel

compliance and far more severe fines for civil contempt have been

upheld for this purpose. See Int'l Union, United Mine Workers v.

Bagwell, 512 U.S. 821, 830 (1994); United States v. Mongelli, 2

F.3d 29, 30 (2d Cir. 1993); see also In re Power Recovery Sys.,

Inc., 950 F.2d 798, 801-02 (1st Cir. 1991).

Finally, we turn to an ancillary matter. In September

2002, Taricani and his television station WJAR moved to unseal all

documents filed with the court in the special prosecutor's

investigation and to provide Taricani with a copy of his deposition

transcript. In June 2003, the district court denied the motion,

save for one document, saying that

the remaining documents filed in this matter
relate to the on-going investigation being
conducted by the special prosecutor; and,
since publicizing those documents is likely to

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 compromise the investigation by revealing
details that could cause the responsible party
or parties to conceal evidence, seek to
discourage or influence witnesses, or
otherwise impede the investigation, those
remaining documents will remain sealed.

Taricani and the station appealed from this order. While

this appeal was pending, the district court on March 11, 2004,

unsealed all but four of the records in question. In its new

order, the court said that so far as the sealed documents related

to the questions put to Taricani and his refusal to answer, the

matter had already become public so there was no longer any purpose

served by keeping confidential the documents relating to that

issue.

This leaves at issue on appeal the four remaining

documents still under seal and Taricani's deposition transcript.

The four documents relate to the special prosecutor's ongoing

investigation. As to the deposition transcript, it appears from

his brief that the district court was willing to allow Taricani

copies of his deposition on condition that he and his lawyer agree

to keep the transcripts confidential, but Taricani is not satisfied

with this solution.

Taricani and WJAR argue for access to the deposition

transcript and the four remaining sealed documents on the grounds

that "[t]he public has a constitutional and common law right of

access to court records." Although judicial proceedings are

presumptively public, see Richmond Newspapers, Inc. v. Virginia

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448 U.S. 555, 580 (1980); In re Boston Herald, Inc., 321 F.3d 174,

182-83 (1st Cir. 2003), there are exceptions and one of the best

settled is that there is no general right of public access to the

proceedings of a grand jury or to documents generated by those

proceedings.8

Here the documents have been sealed as part of the

investigation by a special prosecutor and not a grand jury

investigation. Yet the principal reasons for grand jury secrecy–-

to protect the innocent against unfair publicity and to prevent

tampering or escape by targets, Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211, 219 n.10 (1979)–-apply with equal force

here. What the special prosecutor is currently doing is

sufficiently like what a grand jury would do to make the analogy

decisive.

Taricani may be arguing that as a witness he has an

elevated right to copies of his own deposition transcript.

However, in this circuit "a grand jury witness has no general right

to transcripts of his testimony." In re Bianchi, 542 F.2d 98, 100

(1st Cir. 1976). Similarly, a majority of circuits hold that a

non-defendant witness seeking access to his own deposition

transcript must make "a strong showing of particularized need” for

8
Fed. R. Crim. P. 6(e); In re Boston Herald, Inc., 321 F.3d
at 183; see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9
(1986); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir.
1989); accord In re Motions of Dow Jones & Co., 142 F.3d 496,
499-503 (D.C. Cir.), cert. denied, 525 U.S. 820 (1998); United
States v. Smith, 123 F.3d 140, 143, 149 (3d Cir. 1997).

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such disclosure. In re Grand Jury Subpoena, 72 F.3d 271, 274 (2d

Cir. 1995)(quoting United States v. Sells Eng'g, Inc., 463 U.S.

418, 443 (1983)). A few circuits take a contrary view, id. at 275

(collecting cases), but are at odds with Bianchi.

In this case Taricani has given no reason, compelling or

otherwise, to explain his need for the transcript. By contrast,

the district court took steps to accommodate any need Taricani

might have for the transcript by offering Taricani and his counsel

access to the deposition testimony as long as they agreed to keep

the transcript confidential. Taricani has said nothing to explain

why this option is not enough to serve any legitimate interest he

may have as a witness.

Affirmed.

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