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E. Discovery materials

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  • 10th Circuit

    The Tenth Circuit has not definitively extended access rights to discovery materials. See, e.g., United States v. Gonzales, 150 F.3d 1246, 1260 (10th Cir. 1998) (“Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access.”).

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  • 4th Circuit

    In an unpublished decision, a district court in the Fourth Circuit held that the public has at least a common law right of access to Brady and Giglio materials that are filed with the court with the objective of obtaining judicial action. In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *5 (W.D. Va. July 23, 2018) (denying motion to seal Brady and Giglio materials filed in connection with a motion for leave to intervene).

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  • 5th Circuit

    The Fifth Circuit has held that evidence material filed along with motions in limine to exclude such evidence from trial can be sealed for a temporary period of time if there is concern that disclosure could prejudice the defendant’s right to a fair trial. In re Gannett News Serv., 772 F.2d 113, 115 (5th Cir. 1985).

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  • 7th Circuit

    “[U]ntil admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access." In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998); see also United States v. Berger, 990 F. Supp. 1051 (C.D. Ill. 1997) (press does not have right to attend the videotaped deposition of the state governor, which would remain sealed until it was played at trial before the jury; defendant’s right to a fair trial overrides the press’s right of access), rev’d on other grounds, In re Associated Press, 162 F.3d 503 (holding press should have been permitted to intervene but that deposition was not “trial testimony” and “it is well established that discovered but not-yet-admitted evidence is not ordinarily within the scope of press access”).

    The Central District of Illinois’ Local Criminal Rules provide, in part, that “[a]ny pretrial discovery materials provided to the defendant pursuant to this Rule . . . shall not be disseminated to any person or used for any purpose other than in direct relationship to the criminal case to which the discovery pertains.”  C.D. Ill. Local Crim. R. 16.2(B)(1).  The comments to this Rule note that its application is limited to discovery “provided outside the requirements of Federal Rule of Criminal Procedure 16, applicable statutes, or the Constitution,” and that “disclosure is not prohibited; only physical dissemination is prohibited. A defendant is free to discuss or disclose the contents of discovery with anyone, but may not physically distribute the discovery.”

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  • Alabama

    Discovery materials generally do not qualify as public records, and as such are not presumptively open. See Ex parte Birmingham News Co., 624 So. 2d 1117, 1129 (Ala. Crim. App. 1993) (“Discovery in a criminal case has traditionally been a private matter between the parties and historically has not been open to the press and public.”). Autopsy reports, however, are public records if performed by the Alabama Department of Forensic Sciences. See Ala. Code § 36-18-2 (“The director [of the Department of Forensic Sciences] shall keep photographed or microphotographed reproductions of original reports of all investigations that he conducts in his office. Reproductions of such materials shall be public records and shall be open to public inspection at all reasonable times.”).

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  • Arizona

    Rule 15.4(d) of the Arizona Rules of Criminal Procedure specifies that “[a]ny materials furnished to a party or counsel under Rule 15 must not be disclosed to the public, and may be disclosed only to the extent necessary for the proper conduct of the case.”

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  • Idaho

    No Idaho court has specifically addressed the issue of whether discovery materials are subject to public disclosure.  Generally, discovery materials are not filed with a court so as to become a “court record.”  Thus, Idaho Court Administrative Rule 32 would not apply.  Once a document is filed with the court, it would fall within the provisions of Rule 32.  The Idaho Public Records Act states that exemptions to the act may not be used to limit the availability of documents and records for discovery in the normal course of adjudicatory or administrative proceedings.  Idaho Code § 74-115(3).

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  • Pennsylvania

    While Pennsylvania courts have not ruled whether there is right of access to discovery materials in criminal cases, the Pennsylvania Superior Court, in a civil case, has stated that “[a]ccess rights to litigation are at their nadir” during the discovery phase. R.W. v. Hampe, 626 A.2d 1218, 1224 (Pa. Super. 1993) (citation omitted). Proceedings under Pennsylvania Rule of Criminal Procedure 500, which are held for the purposes of preserving the testimony of a witness in anticipation of a criminal trial, are not subject to a First Amendment right of access. Commonwealth v. Selenski, 996 A.2d 494, 499 (Pa. Super. 2010) (holding that there is no right of access to testimony preservation hearing under Pennsylvania Rule of Criminal Procedure 500, and likening such proceedings to discovery depositions.).

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  • Vermont

    The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords produced or created in connection with discovery in a case in court, including a deposition, unless used by a party (i) at trial or (ii) in connection with a request for action by the court.”  Vt. Pub. Acc. Ct. Rec. Rule 6(b)(9); see also Herald Ass’n v. Judicial Conduct Bd., 149 Vt. 233, 239, 544 A.2d 596, 600 (Vt. 1988) (denying access to discovery material in the possession of, but not filed with, the Judicial Conduct Board).

    The Vermont Supreme Court recently held that a court’s decision granting a motion to quash a subpoena issued in the context of a criminal inquest is a judicial case record that is presumptively subject to public disclosure under the Vermont Rules for Access to Court Records.  In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶ 9 (July 19, 2019).

    Pursuant to V.R.C.P. 5(d), most discovery requests and responses are not filed unless they will be used in a proceeding and, in practice, most discovery records are not introduced into evidence in the case. “Because these records are not considered by the court in resolving contested issues in the case, and are now considered to be private rather than public, they are not subject to the general rule on disclosure of court records. However, any discovery that is used in the case will be open under this section.”  Reporter’s Notes, Vt. Pub. Acc. Ct. Rec. Rule 6.

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