Court seals inadvertently released trial strategy document

NEW YORK–In early May, a federal district judge in Manhattan presiding over a highly publicized Mafia trial decided to seal an internal prosecution memorandum that was inadvertently placed in the public court file and widely distributed.

The pretrial document outlined the government’s case against 19 defendants, and included a list of witnesses, descriptions of their proposed testimony, and summaries of conversations from wiretap recordings of the defendants. Through a series of missteps by the government, the memorandum was placed in the public court file and distributed to at least 40 people around the country.

District Judge Denny Chin accepted the government’s argument that the protective order was necessary to ensure a fair trial and to protect the integrity of the investigation and the identities of witnesses, victims and unindicted individuals, which outweighed any interest in disclosure of the information. The New York Times challenged the prosecutor’s motion, arguing that it had a right to view the memorandum and publish its contents because it was publicly filed and distributed.

Chin also granted a government request for permission to redact any information in the memorandum related to ongoing investigations and the identities of confidential witnesses before providing copies to defense counsel. Chin ruled in April that the U.S. attorney’s office waived the “work product” privilege after the memorandum’s distribution, and therefore the government had to turn the document over to defense attorneys.

Notwithstanding his earlier ruling that the document was not privileged, Chin held that the inadvertent disclosure did not affect the public’s right to view the memorandum because there is no First Amendment presumption of access to attorney work product material.

According to the government, the defendants are members of organized crime families who defrauded investors of millions of dollars. The defendants did not object to the redactions or the protective order. (United States v. Gangi; Media Counsel: George Freeman, Manhattan)