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2nd Circuit

Open Courts Compendium

Author

Christine N. Walz
Esther Clovis
Madelaine Harrington
Holland & Knight LLP
31 West 52nd Street, 12th Floor
New York, NY 10019
212.513.3200

Last updated February 2019

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

In the Second Circuit, public access to courts finds its "twin sources" in the common law right of public access to judicial documents and the qualified First Amendment right to attend judicial proceedings.  In re Omnicom Grp., Inc. Sec. Litig., No. 02 CIV. 4483 RCC/MHD, 2006 WL 3016311, at *1 (S.D.N.Y. Oct. 23, 2006).  Litigants seeking access to courts or judicial documents may ground their arguments in either doctrine but should note that each requires a different analysis.

First Amendment.  The U.S. Supreme Court and the Second Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion).  Though the right of access to criminal trials is not "explicitly mentioned in terms in the First Amendment . . . [the U.S. Supreme Court has] long eschewed any 'narrow, literal conception' of the Amendment's terms."  Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604, (1982).  The Second Circuit has also extended this right to civil proceedings. See, e.g., Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984) (asserting that "the First Amendment does secure to the public and to the press a right of access to civil proceedings").

The right of access applies to certain "judicial documents" filed in connection with litigation.  To determine whether a document qualifies as such, the Second Circuit uses the "experience and logic" test articulated by the Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986).  This test requires the court to consider both (1) whether the documents "have historically been open to the press and general public" and (2) whether "public access plays a significant positive role in the functioning of the particular process in question."  Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (quoting Press-Enter. Co., 478 U.S. at 8).  As further explained by the Second Circuit in Lugosch, 453 F.3d at 120, "courts that have undertaken this type of inquiry have generally invoked the common law right of access to judicial documents in support of finding a history of openness. The second approach considers the extent to which the judicial documents are derived from or [are] a necessary corollary of the capacity to attend the relevant proceedings." (internal quotation marks and citations omitted).

The presumption of access under the First Amendment is not absolute.  Once the court finds that a qualified First Amendment right of access to certain judicial documents exists, documents may still be sealed, but only if "specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest."  In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987).

Common Law.  Historically, at common law, "both civil and criminal trials have been presumptively open."  E*Trade Fin. Corp. v. Deutsche Bank AG, 582 F. Supp. 2d 528, 531 (S.D.N.Y. 2008) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 n.17 (1980)).  As with the First Amendment, the right of access also extends to judicial documents.  The Second Circuit has emphasized that "the common law right of public access to judicial documents is firmly rooted in our nation's history."  Lugosch, 435 F.3d at 119.

The application of the common law doctrine of access requires a multi-step analysis.  First, the party seeking access must show that the document, or documents, in question are "judicial documents."  Once this is established, the common law presumption of access applies.  Second, the court must determine the weight of the presumption, which is "governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 119.  Documents that more directly affect an adjudication are given more weight than those that "come within the court's purview solely to insure their irrelevance.”  Id. (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II")).  Finally, once the weight is determined, the court must "balance competing considerations against it."  Amodeo II, 71 F.3d at 1050.  Competing considerations may include the privacy interests of those resisting disclosure, or the potential of danger to the public should disclosure impair law enforcement or judicial efficiency.  Id.

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B. Overcoming a presumption of openness

The presumption of access is a baseline presumption.  The party seeking closure has the burden of proving that closure is justified.  The standard required to overcome the presumption differs slightly between the common law and the First Amendment right.

First Amendment.  The First Amendment right of access may only be overcome by a demonstration of "substantial probability of harm to a compelling interest."  Under Seal v. Under Seal, 273 F. Supp. 3d 460 (S.D.N.Y. 2017).  This requires specific, on the record findings demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  In re N.Y. Times Co., 828 F.2d at 116.  Broad or general findings are insufficient, "[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."  Press–Enter. Co. v. Super. Ct., 464 U.S. 501, 510 (1984).  Court orders that seal records are open to challenge where they do not sufficiently articulate the basis for closure or allow the litigants to designate material to be sealed without necessary court supervision and approval.

Common lawOnce the court (1) determines that there is a presumption of access, and (2) affords the presumption a particular weight, it will then (3) weigh the presumption against competing interests.  If the court determines that competing interests outweigh the presumption of access, it may seal documents, but "sealing must be supported by specific findings."  Hardy v. Kaszycki & Sons, No. 83-CV-6346 (LAP), 2017 WL 6805707, at *6 (S.D.N.Y. Nov. 21, 2017) (citing United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995)).

Recently, in Bernstein v. O'Reilly, Case No. 17-cv-9483, 2018 WL 1615840 (S.D.N.Y. April 3, 2018) the Southern District denied the defendant's motion to seal documents where he failed to "present compelling countervailing factors that could overcome the presumption of public access" to court records.  The documents in question were settlement and arbitration agreements that the court determined were "judicial documents" deserving of the presumption of access under Second Circuit doctrine.  Id. at *3.  The court then analyzed the weight of the presumption and determined it was "heavy" because "[t]he documents comprise a significant proportion of the ... record before the Court and they pertain to matters that directly affect the Court's adjudication.”  Id. (internal quotation marks and citations omitted).  Given the weight of the presumption, the court ultimately concluded that the countervailing interests asserted by the defendant – the assertion that the parties intended to keep the agreements confidential – could not overcome the presumption of access.  Id.

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C. Procedural prerequisites to closure

Closure requires judicial review and "specific, on the record findings demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest."  In re N.Y. Times Co., 828 F.2d at 116. Therefore, in most cases, "a judge must carefully and skeptically review sealing requests to ensure that there really is an extraordinary circumstance or compelling need." Video Software Dealers Assoc. v. Orion Pictures, Corp., 21 F.3d 24, 27 (2d Cir.1994).  In practice, the party seeking closure will generally move or otherwise ask the court to seal particular records or, in some instances, the entire docket.  The court must then scrutinize the application, and articulate reasons for closure, if any.  If only a portion of the document merits closure, the court may ask the party seeking closure to submit proposed redactions.  Individual procedures will vary by jurisdiction.

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

As surrogates of the public, news agencies have standing to challenge protective orders in cases of public interest.  Importantly, motions to intervene and unseal may be made at any time.  See, e.g., In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *2 (S.D.N.Y. Aug. 10, 2015) ("There is no legal authority of which we are aware … to the effect that there is a deadline by which such a journalistic request for access to documents must be asserted, and certainly no requirement that the application be made before the lawsuit is closed.")  Therefore, a member of the media may seek to intervene in a case that has been dismissed or settled for the purpose of unsealing records.

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B. Procedure for requesting access in criminal cases

Neither the Supreme Court nor the Second Circuit have specified an exact method by which a party must request access. In general, however “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.” United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988)); see also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders); Hertz v. Times-World Corp., 528 S.E. 2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law).  Within the Second Circuit, in particular, the Southern District of New York has stated that a "motion to intervene to assert the public's First Amendment right of access to criminal proceedings is proper."  United States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 580 (S.D.N.Y. 2009).  Depending on the court's local rules, and the individual rules of the judge, the movants-intervenors may be scheduled for oral argument.  A court may grant a motion to intervene but deny the motion to unseal.  In such a case, the movants-intervenors may appeal.

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C. Procedure for requesting access in civil matters

As with access to criminal matters, a motion to intervene and unseal is the general method by which a party may request access to civil matters.  In Lugosch 435 F.3d at 110, for example, several media organizations moved to intervene to secure access to documents filed under seal.  Similarly, in In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *1 (S.D.N.Y. Aug. 10, 2015), the movant, a writer for the New York Times, filed a motion to intervene concurrently with a motion to unseal documents to "assist in a journalistic project." Cf. Giuffre v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018); Giuffre v. Maxwell, No. 15 CIV. 7433, 2017 WL 1787934, at *1 (S.D.N.Y. May 3, 2017) (on appeal) (granting motions to intervene but denying motions to modify protective order entered in defamation matter).

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D. Obtaining review of initial court decisions

The procedure for reviewing a trial court’s determination on closure – and for obtaining expedited or emergency review – will vary by jurisdiction.  In general, however, if a motion to intervene and unseal is denied, it may be appealed to the Second Circuit.

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III. Access to criminal proceedings

A. In general

The Supreme Court and Second Circuit have long recognized a right of access to criminal cases.  See, e.g., ("to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected discussion of governmental affairs is an informed one") (internal quotation marks omitted); Press-Enterprise II, 478 U.S. at 13 (recognizing the right of access to preliminary hearings in criminal cases); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604–05 (1982); Ayala v. Speckard, 89 F.3d 91 (2d Cir.), modified on denial of rehearing, 102 F.3d 649 (2d Cir. 1996) (ruling that a defendant's constitutional right to a public trial was violated where a trial judge closed the courtroom and failed to articulate alternatives to closure that would adequately protect the state interest justifying the closure)).

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B. Pretrial proceedings

As to pre-trial proceedings, the Second Circuit has held that they merit a degree of First Amendment protection.  See United States v. Klepfer, 734 F.2d 93 (2d Cir. 1984).  In Klepfer, the court reviewed an order closing a courtroom during a pretrial hearing on a motion to suppress and ruled that the lower court had not sufficiently articulated a basis for its serious concern over public dissemination risks and for its preference for closure over alternative remedies.  See also Application of Herald Co., 734 F.2d 93, 99 (2d Cir. 1984) ("We therefore agree with the Third and Ninth Circuits that the First Amendment extends some degree of public access to a pretrial suppression hearing."). 

A more definitive rule was issued by the Supreme Court in Press-Enterprise II, 478 U.S. at 1, which concerned a motion by members of news media to gain access to transcripts of preliminary hearing in criminal prosecution.  The court reviewed a determination of the Supreme Court of California that had determined that the right of access to criminal proceedings recognized in Press–Enterprise I extended only to criminal trials and therefore that there was no general right of access to preliminary hearings.  The U.S. Supreme Court reversed, stating, " “the qualified First Amendment right of access to criminal proceedings applies to preliminary proceedings as they are conducted in California ...the proceedings cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest."  Id. at 13-14.

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C. Criminal trials

Criminal trial proceedings are presumptively open. The right of access to criminal cases, in particular, is grounded in the "importance to the people than the manner in which criminal trials are conducted." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980); see also Globe Newspaper, 457 U.S. at 604–05 (quotations omitted) ("to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that [the] constitutionally protected discussion of governmental affairs is an informed one.").  Trials may be closed if closure is narrowly tailored and no less restrictive alternatives exist, for compelling reasons such as witness protection or confidential information. See Pearson v. James, 105 F.3d 828 (2d Cir. 1997); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991 (1972); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969), cert. denied, 397 U.S. 957 (1970).  In Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), for example, the Second Circuit held that limited closure of trial testimony of only the undercover officer in a criminal prosecution was justified by the state’s interest in maintaining effectiveness of the officer's capabilities.

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D. Post-trial proceedings

A party seeking closure must also make a showing that there is a compelling interest to close post-trial proceedings.  See United States v. Doe, 356 Fed. App'x 488 (2d Cir. 2009). In Doe, the trial court refused to seal defendant’s sentencing hearing transcript. The Second Circuit affirmed, holding that the lower court correctly established that the public’s right of access imposes a high burden on the party moving to seal and requires four steps: (1) specific, on-the-record findings of "substantial probability of prejudice to a compelling interest”" that closure would prevent; (2) consideration of alternatives to closure; (3) balancing the risk of prejudice against First Amendment right of access; (4) ensuring closure is narrowly tailored to protect against prejudice.  See also United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").

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E. Appellate proceedings

IV. Access to criminal court records

A. In general

In cases involving access to documents in criminal cases, courts will inquire whether the documents at issue are "judicial documents" in addition to querying whether there is a right of access under the common law and the First Amendment.

United States v. Graham, 257 F.3d 143, 147 (2d Cir. 2001) provides an example.  In Graham, Defendants indicted on drug trafficking charges moved to seal courtroom during detention hearings to prevent dissemination of audiotapes and videotapes to be played by government.  Judge Katzman, for the Second Circuit, held inter alia that the tapes were "judicial records" subject to the presumption of access, that there was a strong presumption favoring access, and that presumption was not overcome by the fact that the tapes would enhance public awareness of the case.  In support of its holding, the court stated that its "approach with respect to the common law right in the criminal context is shaped both by our responsibility to ensure that criminal defendants are not deprived of their right to a fair trial and by our recognition that “[w]hat transpires in the court room is public property."  Id. at 149; see also Application of Nat'l Broad. Co., Inc., 635 F.2d 945 (2d Cir. 1980) (affirming district court finding that three television networks could make copies of and televise videotapes entered into evidence during criminal prosecution.)

The right of access is not, however, absolute.  Recently, in United States v. Armstrong, 185 F. Supp. 3d 332 (E.D.N.Y. 2016), the District Court for the Eastern District of New York held that the sealing of two documents related to sentencing in a criminal trial was narrowly tailored to protect the government's compelling interest.  The court reasoned that sealing was justified given the government's compelling interest to secure current and future cooperation from defendants.  Id. at 337-338.

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B. Arrest records

Neither the Supreme Court nor the Second Circuit have issued a definitive ruling as to public access to arrest records.  This will vary by jurisdiction.

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C. Dockets

The public and press have a qualified First Amendment right of access to court docket sheets.  See Hartford Courant Co. v. Pelegrino, 380 F.3d 83 (2d Cir. 2004).  Indeed, in Hartford Courant, the court noted that "the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible."  It further reasoned that sealed docket sheets would frustrate the ability of public and press to inspect court records, which are presumptively open, and the inaccessibility of docket sheets could thwart appellate review of underlying decisions about sealing.  Id. at 94; see also Livecchi v. Rochester Police Dep't, No. 04-CV-6162 CJS, 2004 WL 1737379, at *1 (W.D.N.Y. Aug. 2, 2004) (citing Hartford Courant, and ordering docket sheets unsealed where the plaintiff had "not presented any information from which the Court could conclude that sealing of the case is essential to preserve higher values.").

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The Second Circuit has recognized a qualified First Amendment right of access to pretrial wiretap materials. See In re N.Y. Times Co., 834 F.2d 1152 (2d Cir. 1987). Wiretap materials sealed under the Crime Control Act Title III (which presumes closure) may only be accessed for “good cause.” See In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 2009 U.S. App. LEXIS 17642 (2d Cir. Aug. 7, 2009); Nat’l Broadcasting Co. v. U.S. Dep’t of Justice, 735 F.2d 51 (2d Cir. 1984).

The Second Circuit has recognized that search warrants “are unquestionably judicial documents” subject to the common law presumption of access.  United States v. Cohen, -- F. Supp. 3d --, 2019 WL 472577 (S.D.N.Y. Feb. 7, 2019).  Because search warrants are judicial determinations of government intrusion, the presumption of access is particularly strong.  Id. at *4.  In contrast, the narrower First Amendment presumption of access may not apply.  Id. at *10.  For example, in Cohen, the court held that neither “logic” nor “experience” dictated a First Amendment right of access to search warrant materials.  Id. (engaging in a separate First Amendment analysis for each of the two types of search warrants at issue: those authorized pursuant to Rule 41 of the Federal Rules of Criminal Procedure, and those authorized pursuant to 18 USCA § 2703).

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E. Discovery materials

F. Pretrial motions and records

There is a qualified First Amendment right of access to criminal proceedings, which extends to certain pretrial proceedings.  In re N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987); see also United States v. Martoma, No. S1 12 CR 973 PGG, 2014 WL 164181, at *6 (S.D.N.Y. Jan. 9, 2014) (concluding that defendant's interest in maintaining closure to avoid embarrassment “does not trump the presumptive right to public access that attaches to substantive pre-trial motions"); In re Herald Co., 734 F.2d 93, 98 (2d Cir. 1984) (right of access applies to pretrial suppression hearings); ABC, Inc. v. Stewart, 360 F.3d 90, 105–06 (2d Cir. 2004) (right of access applies to voir dire proceedings); United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988) (plea hearings); United States v. Alcantara, 396 F.3d 189, 191–92 (2d Cir. 2005) (sentencing hearings).

Access to written documents filed in connection with pretrial motions is particularly important where "no hearing is held and the court's ruling is based solely upon the motion papers."  In re N.Y. Times Co., 828 F.2d at 112.  Essentially, the presumption of access under the First Amendment is weightier for motions that serve as the only means by which the public has access to information about the case.  Still, the Second Circuit has permitted limited redaction and sealing of documents related to motion hearings as the documents involved compelling interests in privacy, law enforcement, and government investigation.  See Palmer v. John Doe, No. 13–cv­–2373, 2014 WL 2521315 (2d Cir. 2014).

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G. Trial records

The public has a presumptive right under the common law to monitor criminal trials.   This right extends to trial records.  See generally Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978) (finding that the public has a common law right to inspect and copy judicial records and documents).  In United States v. Myers, 635 F.2d 945 (2d Cir. 1980), for example, the court held that the press and public had a common law right of access to copies of video and audio tapes which were admitted into evidence and played in open court.  Indeed, the Second Circuit has emphasized that:

[O]nce materials have been introduced into evidence in a public proceeding, “it would take the most extraordinary of circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.”

United States v. Massino, 356 F. Supp. 2d 227, 231 (E.D.N.Y. 2005) (quoting Myers, 635 F.2d at 952); see also United States v. Graham, 257 F.3d 143 (2d Cir. 2001) (video and audio tapes played during detention hearing were judicial documents for the purposes of the station’s common law right of access and applied strong presumption of access).

As with the general analysis governing access to courts and court records, this common-law right is not absolute and must be balanced against interests that include "defendant's right to a fair trial, privacy rights in cases involving materials that are particularly embarrassing to innocent parties, and the safety of third parties."  See Massino, 356 F. Supp. 2d at 231.

The First Amendment also guarantees the public and press a qualified right to attend criminal trials.  In re NBC Universal, Inc., 426 F. Supp. 2d 49 (E.D.N.Y. 2006).  Included in this First Amendment right is the right to be " informed of the evidence placed before the fact-finder."  Id. at 56.  The Second Circuit has held that the First Amendment right demands broader disclosure to the public than that required by the common law.  See Lugosch, 435 F.3d at 124 (recognizing that the right to access under the First Amendment is "more stringent").

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H. Post-trial records

The First Amendment right of access extends to post-trial records.  See United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989) (extending right of access to "briefs and memoranda" filed in connection with pre-trial and post-trial motions).  The Southern District of New York has also approvingly noted that the Ninth Circuit has found "no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters."  United States v. Milken, 780 F. Supp. 123, 126 (S.D.N.Y. 1991) (quoting CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir. 1985)); see also United States v. Simone, 14 F.3d 833, 838 (3d Cir.1994) (finding a public right of access to a post-trial examination of juror misconduct even though no cited history predated 1980).  As with the general analysis governing access to courts and court records, this right may be counterbalanced.  See id. (finding closure appropriate in connection with memorandum in support of a motion to reduce a sentence where, inter alia¸ there was a showing that disclosure could impair an ongoing investigation.)

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I. Appellate records

The U.S. Supreme Court has not squarely addressed the issue, and there is no Second Circuit case directly on point.

However, the reasoning underlying the right to access in trial courts applies to appellate proceedings as well.  See, e.g. Huminski v. Corsones, 396 F.3d 53, 82 (2d Cir. 2005) (discussing the right of access); Westmoreland v. Columbia Broad. Sys., 752 F.2d 16, 23 (2d Cir. 1984) (reviewing the caselaw with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”).

Outside the Second Circuit, the Nevada Supreme Court noted that “secret supreme court proceedings violate statutory and common law … [as well as] the Constitution of the United States.” Whitehead v. Comm’n on Jud. Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds. The court rejected the idea that “appellate proceedings, either civil or criminal, have been excluded from [the] tradition” of openness, finding that, “[i]t appears that, at least since 1267, all judicial proceedings have been presumptively open.” Id. at 993 (emphasis in original). Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public—in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 Fed. App’x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

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J. Other criminal court records issues

V. Access to civil proceedings

A. In general

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) a plurality opinion of the Supreme Court found that historically both civil and criminal trials have been presumptively open."  The Second Circuit has also found "that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers."  Westmoreland v. CBS, Inc., 752 F.2d 16, 22–23 (2d Cir.1984) (recognizing First Amendment right of public access to civil trials); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) ("We have concluded that the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records.").  As noted in N.Y. Civil Liberties Union, "all the other circuits that have considered the issue have come to the same conclusion." See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253–54 (4th Cir. 1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir.1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir.1983); Newman v. Graddick, 696 F.2d 796, 801 (11th Cir.1983).

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B. Pre-trial proceedings

There is no clear rule in the Second Circuit that there is a presumption of access to all pre-trial proceedings.  Of note, the Supreme Court has noted that deposition proceedings "were not open to the public at common law" [and] "[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action."  Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984).  In the same vein, the Second Circuit has noted that "the mere filing of a paper or document with the court is insufficient to render that paper a judicial document” subject to the presumption of access, and instead that “the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document."  United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”).

Still, numerous courts at the district level have held that a variety of discovery-related documents qualify as "judicial documents" and benefit from the presumption of openness.  See Alexander Interactive, Inc. v. Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174, at *2 (S.D.N.Y. Sept. 2, 2014) ("documents to be submitted are in support of a motion to compel discovery [] presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents.); In re Omnicom Grp., 2006 WL 3016311 at *2. (a "series of letter briefs with accompanying exhibits…certainly qualify as judicial documents"); Schiller v. City of N.Y., No. 04 CIV. 7921(KMK) 2006 WL 2788256, at *1 (S.D.N.Y. Sept. 27, 2006) (briefs and supporting papers submitted in connection with a dispute over the confidentiality of discovery materials were "created by or at the behest of counsel and presented to a court in order to sway a judicial decision" and were therefore "judicial documents that trigger the presumption of public access").

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C. Trials

In Westmoreland v. CBS, Inc., 752 F.2d 16, 22–23 (2d Cir.1984), the Second Circuit recognized a First Amendment right of public access to civil trials.  See also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) ("We have extended that principle and held that the First Amendment right applies ‘to civil trials and to their related proceedings and records.’") (quoting N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (“NYCTA”), 684 F.3d 286, 298 (2d Cir. 2012)).  The Second Circuit has explained that the "First Amendment does not distinguish between criminal and civil proceedings, but rather protects the public against the government's arbitrary interference with access to important information." Id. (internal quotation marks omitted); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (right of access applied to summary judgment motions in civil matter); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (applying qualified right of access to civil and criminal court docket sheets).

Finally, in at least one instance, the right of access has been extended to some administrative hearings.  See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 301 (2d Cir. 2012) (holding there was a qualified right of public access to Transit Adjudication Bureau (TAB) hearings conducted by New York City Transit Authority.)

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D. Post-trial proceedings

The Second Circuit has not addressed this matter specifically, however, at least one other Circuit Court has found that such a right exists.  See, Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (recognizing a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights).

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E. Appellate proceedings

The U.S. Supreme Court has not squarely addressed the issue, and there is no Second Circuit case directly on point.

However, the reasoning underlying the right to access in trial courts applies to appellate proceedings as well.  See, e.g. Huminski v. Corsones, 396 F.3d 53, 82 (2d Cir. 2005) (discussing the right of access); Westmoreland v. Columbia Broad. Sys., 752 F.2d 16, 23 (2d Cir. 1984) (reviewing the caselaw with the introductory comment, “There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom.”).

Outside the Second Circuit, the Nevada Supreme Court noted that “secret supreme court proceedings violate statutory and common law … [as well as] the Constitution of the United States.” Whitehead v. Comm’n on Jud. Discipline, 893 P.2d 866, 992 (Nev. 1995), superseded on other grounds. The court rejected the idea that “appellate proceedings, either civil or criminal, have been excluded from [the] tradition” of openness, finding that, “[i]t appears that, at least since 1267, all judicial proceedings have been presumptively open.” Id. at 993. Similarly, in In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), the Seventh Circuit ruled that parties on appeal “must file public briefs” because “[j]udicial proceedings in the United States are open to the public—in criminal cases by constitutional command, and in civil cases by force of tradition.” And in United States v. Moussaoui, 65 Fed. App’x 881, 890 (4th Cir. 2003), the court noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”

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VI. Access to civil records

“The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted); Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016). Indeed, the Second Circuit has concluded that “the First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records.” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2011).  Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, No. 14-CV-6867 (VEC), 2016 U.S. Dist. LEXIS 35385, at *11 (S.D.N.Y. Jan. 12, 2016) (stating that it is “well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings”).

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A. In general

The Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).

When a district court initially considers a request to seal a file or to approve or take other protective measures, it enjoys considerable discretion in determining whether good cause exists to overcome the presumption of open access to documents filed in our courts. Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000) (quoting Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (citation omitted). “However, after a district court has approved a sealing order, discretion of that breadth no longer exists.” Id. For example, “[a]lthough a district court has power to modify a protective order . . . , the required showing must be more substantial than the good cause needed to obtain a sealing order in the first instance. Id.

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B. Dockets

The Supreme Court has not ruled on whether the constitutional presumption of access applies to civil or criminal court dockets. However, the Second Circuit has recognized that the right does attach, with one ruling that “the press and public possess a qualified First Amendment right of access to docket sheets” in part because “the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86 (2d Cir. 2004).

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C. Discovery materials

Like pre-trial documents (discussed below), discovery documents enjoy the same protection as general court records in so far as they are also deemed to be "judicial documents."  Where discovery documents fall outside this definition, however, closure still requires that a litigant establish good cause for sealing.  Fournier v. Erickson, 242 F. Supp. 2d 318, 342 (S.D.N.Y. 2003), is instructive.  In Fournier, the Southern District of New York vacated a stipulated protective order, in which the parties provided for the designation of material produced during discovery as protected material to be filed under seal.  Id. at 340.  This Court first noted that, once a protective order is issued, a party seeking to modify the protective order must show its improvidence or some extraordinary circumstance or compelling need."  Id. at 341 (citing Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2d Cir. 2000)).  However, the protective order at issue improperly allowed the parties to designate material as confidential without judicial review:

The Stipulated Protective Order not only asked the Court to defer to the parties' judgment on confidentiality but it also allowed for unilateral designation of an exhibit as protected material, and it did not list specific documents, or delineate the kinds of documents contemplated for protection.

Id. at 341. The Court pointed out the problem with such an order:

[E]ach party could circumvent the "good cause" standard for protection and simultaneously shift the burden to his adversary to unseal a document while benefitting from the more rigorous "extraordinary circumstances" standard that would apply merely by unilaterally designating any given document as protected.  Id.  As a result, the protective order was vacated, and the parties were instructed to "correct this state of affairs [in future motion practice] by specifically identifying each document at issue and making arguments specifically pertaining to each one."  Id. at n. 6; see also Savitt v. Vacco, No. 95-CV-1842(RSP/DRH), 1996 WL 663888, at *5 (N.D.N.Y. Nov. 8, 1996) (declining to issue a broad protective order and instead ordering defendants to submit "specific suggestions as to each document or notation which they believe should be placed under seal.").

The Second Circuit has recognized that documents “such as those passed between the parties in discovery often play no role in the performance of Article III functions and so the presumption of access to these records is low.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995)).

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D. Pre-trial motions and records

The Second Circuit has held that the First Amendment right applies, among other things, to summary judgment motions and documents relied upon in adjudicating them. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006); see also Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013). The First Amendment also applies to pretrial motions and documents submitted in connection with them as well as docket sheets. Newsday LLC v. Cty. of Nassau, 730 F.3d at 156; In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004).

The Second Circuit has distinguished between access to motions and records in relation to summary judgment and discovery. Documents filed in connection with a motion, such as a motion for summary judgment, are presumed open under the First Amendment and common law. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). The Court has held that “a report submitted to a court in connection with a summary judgment motion is entitled to a strong presumption of access since such document is the basis for the adjudication, only the most compelling reasons can justify sealing.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (quotations omitted) quoting Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982). On the other hand, documents “such as those passed between the parties in discovery often play no role in the performance of Article III functions and so the presumption of access to these records is low.” Bernstein, 814 F.3d at 142 (quoting United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir. 1995)).

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E. Trial records

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’s, 435 U.S. 589, 597 (1978) (footnote omitted). The Second Circuit recognizes that there exists a presumption of access to court records which is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006).  Although the Supreme Court has not addressed the constitutional presumption in civil cases, the Second Circuit has held that the First Amendment "does not distinguish between criminal and civil proceedings," but rather "protects the public against the government's arbitrary interference with access to important information." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 164 (2d Cir. 2013).

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F. Settlement records

In the Second Circuit, settlement negotiations and draft agreements "do not carry a presumption of public access" because "[t]he judge cannot act upon these discussions or documents until they are final, and the judge may not be privy to all of them.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 n.4 (2d Cir. 2016); see also United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857 (2d Cir. 1998) (concluding that “the presumption of access to settlement negotiations, draft agreements, and conference statements is negligible to nonexistent”); United States v. Glens Falls Newspapers, 160 F.3d 853, 858 (2d Cir. 1998). Though settlement materials may be presumed access, the Second Circuit has held that they may remain sealed when needed for fair and efficient resolution of cases. See, e.g., United States v. Glens Falls Newspapers Inc., 160 F.3d 853 (2d Cir. 1998).

Applying the experience and logic test where the courts look at whether there is a tradition of openness and whether openness serves a meaningful purpose, the Second Circuit has determined that settlement compliance reports are judicial records subject to a constitutional right of access. This First Amendment right may be overcome with privacy and safety concerns that require sealing. See United States v. Erie County, 2014 WL 4056326 (2d Cir. Aug. 18, 2014).

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G. Post-trial records

The Second Circuit has not addressed this matter specifically; however, at least one other Circuit Court has found that such a right exists.  See Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (recognizing a constitutional right of access to post-trial proceedings in a civil case dealing with prisoners’ rights).

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H. Appellate records

The Second Circuit has not addressed access to appellate records specifically. However, there exists the presumption that access is entitled to great weight if a party submits the document to the court for purposes of adjudication. Lugosch v. Pyramid Co., 435 F.3d 110, 114 (2d Cir. 2006). As the Second Circuit explained, once a document is submitted to the court, the public should be able to assess the correctness of the judge's decision, and "documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision." Id.; see also Bernsten v. O'Reilly, 2018 U.S. Dist. LEXIS 70313, at *3 (S.D.N.Y. Apr. 3, 2018). Therefore, according to the Court of Appeals, documents submitted to the Court for purposes of adjudication, should not remain under seal "absent the most compelling reasons." Id.; see also Cianci v. New Times Publishing Co., 88 F.R.D. 562, 565 (S.D.N.Y. 1980) (holding that in light of the parties' use of sealed documents in their arguments relating to defendants' motion to dismiss and reference to sealed deposition testimony by the trial court and the appellate court, the documents had become part of the public record and the press could not be denied access to them).

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I. Other civil court records issues

Applying the experience and logic test where the courts look at whether there is a tradition of openness and whether openness serves a meaningful purpose, the Second Circuit has recognized a First Amendment right of access to contempt proceedings and records. See Newsday, LLC v. Cnty. of Nassau, 730 F.3d 156 (2d Cir. 2013). Similarly, the Second Circuit also recognizes the public's common law right to inspect and copy judicial records and creates a presumption that all documents filed in a bankruptcy case are accessible to the public and subject to examination by the public at reasonable times without charge as codified by 11 U.S.C. § 107(a). Togut v. Deutsche Bank AG (In re Anthracite Capital, Inc.), 492 B.R. 162, 168 (Bankr. S.D.N.Y. 2013) (citing Video Software Dealers Assoc. v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 26 (2d Cir. 1994)).

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VII. Jury and grand jury access

A. Access to voir dire

The Second Circuit has held that exclusion of the public for the entire duration of voir dire violates a criminal defendant’s Sixth Amendment rights. See United States v. Gupta, 699 F.3d 682 (2d Cir. 2012); See Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009) (holding that closure of voir dire proceedings for one afternoon was too trivial to warrant vacating a criminal conviction). The Court requires that there be a sufficient factual basis for closure of voir dire examinations. ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004) (vacating lower court’s order that barred the press from attending voir dire proceedings in judge’s chambers). But see United States v. King, 140 F.3d 76 (2d Cir. 1998) (affirming order withholding transcripts of in camera jury voir dire until the jury was impaneled in criminal prosecution of Don King and restricting access to transcript of voir dire in prior prosecution of defendant on the grounds that proper findings were made supporting the holding that the limited closures were necessary to ensure juror candor in the voir dire process).

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B. Juror identities, questionnaires and other records

Voir dire access limitations are properly invoked only where circumstances demonstrate their need, and, even then, any limitation must be narrowly drawn and supported by findings, after alternatives have been considered. United States v. King, 140 F.3d 76, 83 (2d Cir. 1998); see also United States v. Bruno, 700 F. Supp. 2d 175, 185 (N.D.N.Y. 2010) (holding that jurors' privacy rights in pre-screening questionnaires outweighed rights of public access).

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C. Grand jury proceedings and records

In general, grand jury proceedings are not subject to the traditional presumption in favor of public access to judicial proceedings. In re Grand Jury Subpoenas, No. 15-mc-71 (VEC), 2016 U.S. Dist. LEXIS 146148, at *6 (S.D.N.Y. Oct. 18, 2016) (citing Doe No. 4 v. Doe No. 1 (In re Grand Jury Subpoena), 103 F.3d 234, 242 (2d Cir. 1996)). The Court in In re Grand Jury Subpoena, upheld closure of hearing on propriety of government subpoenas and surveillance undertaken pursuant to grand jury proceedings. 103 F. 3d 234 (2d Cir. 1996) (holding that the overriding interest in secrecy of grand jury proceedings—at least until they are complete—outweighs the qualified right of access); see also In re Rosahn, 671 F. 2d 690 (2d Cir. 1982) (reversing closure of contempt proceedings of grand jury witness).

In deciding whether or not to disclose grand jury testimony, the Second Circuit relies on the Supreme Court’s Douglas Oil balancing test. In re Petition of Craig, 131 F.3d 99, 104 (2d Cir. 1997). The Supreme Court in Douglas Oil required that “[p]arties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. of California v. Petrol Stops Nw., 441 U.S. 211, 222 (1979). In applying the Douglas Oil test, the Second Circuit has found instances in which disclosure of grand jury documents was inappropriate. See, e.g., In re Grand Jury Subpoena, 103 F.3d 234 (2d Cir. 1996) (holding that although appellants may have had a qualified right to access the proceeding it was overcome by the government's interest in maintaining the secrecy of the grand jury process”); Kamasinski v. Judicial Review Council, 44 F.3d 106, 111 (2d Cir. 1994) (concluding that a “limited ban on disclosure of the fact of filing or the fact that testimony was given does not run afoul of the First Amendment,” and “the ban on disclosure is constitutional only so long as the [government] acts in its investigatory capacity”).

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D. Interviewing jurors

The Second Circuit has not issued a definitive ruling as to interviewing jurors.  This will vary by jurisdiction.

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VIII. Proceedings involving minors

A. Delinquency

Given that the Supreme Court has not recognized a right of access to juvenile delinquency proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979); see also Singleton v. City of New York, 632 F.2d 185, 194 (2d Cir. 1980) (discussing New York State rule requiring that records generated in juvenile proceedings are segregated from those involving the arrests of adults, and all fingerprints and photographs generated pursuant to juvenile delinquency adjudications must be destroyed by the police department when and if the individual reaches the age of 21 without having suffered any criminal convictions).

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B. Dependency

Given that the Supreme Court has not recognized a right of access to juvenile dependency proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979).

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C. Other proceedings involving minors

Given that the Supreme Court has not recognized a right of access to juvenile abuse, neglect, custody proceedings or records, the confidentiality of proceedings involving minors varies from state to state. In the Second Circuit, the Court has upheld New York State statutes providing for the confidentiality of public agency records pertaining to abandoned, delinquent, destitute, neglected or adopted children. Alma Soc. Inc. v. Mellon, 601 F.2d 1225, 1229 (2d Cir. 1979).

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D. Prohibitions on photographing or identifying juveniles

The Second Circuit has not issued a definitive ruling as to interviewing jurors.  This will vary by jurisdiction.

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E. Minor testimony in non-juvenile courts

The Second Circuit generally follows the Supreme Court’s ruling in Globe Newspaper Co. v. Superior Court regarding the First Amendment allowing the press to publicize a minor’s testimony. 457 U.S. 596, 607-08 (1982). However, the Second Circuit has upheld the partial closing of the courtroom during a minor’s testimony: in United States v. Ledee, the Second Circuit held that the closure of the courtroom during a victim’s testimony to all persons not directly involved in the trial did not violate the defendant’s Sixth Amendment right to a public trial. 762 F.3d 224, 229 (2d Cir. 2014) (distinguishing its facts as not the general facts controlled by the Supreme Court’s ruling in Globe Newspaper Co. “but rather a tailored closure as applied to one eight-year-old sex-abuse victim (ten years old at the time of trial) under the circumstances of this case”).

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

The Second Circuit has not issued a definitive ruling regarding tribal courts’ exclusion of the press. This will vary by jurisdiction.

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B. Probate

The Second Circuit has not issued a definitive ruling regarding the publication of probate court materials. This will vary by jurisdiction.

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C. Competency and commitment proceedings

The Second Circuit has not issued a definitive ruling regarding the publication of competency and commitment materials. This will vary by jurisdiction.

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D. Attorney and judicial discipline

The Second Circuit has not issued a definitive ruling regarding the publication of attorney and judicial disciplinary materials. This will vary by jurisdiction.

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E. Immigration proceedings

F. Other proceedings

In at least one instance, the right of access has been extended to some administrative hearings.  See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 301 (2d Cir. 2012) (holding there was a qualified right of public access to Transit Adjudication Bureau (TAB) hearings conducted by New York City Transit Authority.)

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X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

Although the Second Circuit Court of Appeals has not directly addressed this issue, lower courts within the Second Circuit have determined that members of the media have standing to challenge third party gag orders. See, e.g., United States v. Simon, 664 F. Supp. 780, 786 (S.D.N.Y. 1987), aff'd sub nom. Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir. 1988); see also Conn. Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987) (holding that a magazine, which was a nonparty and not subject to gag order issued in state court had standing to challenge order).

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B. Gag orders on the press

The Second Circuit has held that “there is a fundamental difference between a gag order challenged by the individual gagged and one challenged by a third party; an order objected to by the former is properly characterized as a prior restraint, one opposed solely by the latter is not.” Application of Dow Jones & Co., Inc., 842 F.2d 603, 609 (2d Cir. 1988). There is a “heavy presumption” against the validity of a prior restraint, particularly as applied to reporting on criminal proceedings. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976). In United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005), the Second Circuit held that a trial court's order restraining the press from publishing the names of jurors sitting on a non-anonymous panel was an impermissible prior restraint on free speech. See also United States v. Corbin, 620 F. Supp. 2d 400, 404 (E.D.N.Y. 2009) (rejecting defendant’s request for a gag order because defendant had failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district).

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C. Gag orders on participants

The First Amendment criminal trial access right is violated by a gag order on counsel during trial unless prejudice would result from counsel’s disclosures to the press. See In re Application of N.Y. Times Co., 878 F.2d 67 (2d Cir. 1989). Furthermore, a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial. United States v. Quattrone, 402 F.3d 304, 311 (2d Cir. 2005) (internal citations omitted).

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D. Interviewing judges

This will vary by jurisdiction and judge.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

Sitting en banc, the Second Circuit held that limited closure of trial testimony of only the undercover officer in a criminal prosecution was justified by the state’s interest in maintaining the effectiveness of the undercover officer. Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (allowing the transcript to be made available to press). Furthermore, the Second Circuit has held that “the more extensive is the closure requested, the greater must be the gravity of the required interest and the likelihood of risk to that interest.” United States v. Fernandez, 590 F. App'x 117, 119 (2d Cir. 2015) (quoting id.).

Bankruptcy proceeding records that include trade secrets and confidential commercial information may be sealed. See In re Orion Pictures Corp., 21 F.3d 24 (2d Cir. 1994).  Additionally, an interested party seeking to seal records need only show that the information is commercial in nature; the information does not necessarily need to rise to the level of a trade secret. Id.; Bankr. Code, 11 U.S.C.A. § 107(b).

There is no right of access to material the government asserts contain state secrets. See Doe v. CIA, 2009 U.S. App. LEXIS 17380 (2d Cir. Aug. 5, 2009). To determine whether a defendant has the right to present a defense that displaces the state-secrets privilege, the court applies the test introduced in Roviaro v. United States, asking: (1) whether the material in dispute is discoverable, and if so, whether the state-secrets privilege applies; and (2) if the privilege applies, whether the information is helpful or material to the defense, that is, useful to counter the government's case or to bolster a defense. 353 U.S. 53 (1957); see also United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010).  For example, In United States v. Aref, the Second Circuit affirmed the district court’s denial of access to classified information presented at trial because the government established a reasonable danger that disclosure would jeopardize national security. 533 F.3d 72 (2d Cir. 2008); see also Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544 (2d Cir. 1991) (holding that the Secretary of the Navy properly invoked the state secrets privilege in action against missile defense systems designers, manufacturers, and testers for wrongful death of sailor who was killed when his ship was fired on by foreign aircraft).

The Second Circuit follows the Supreme Court’s ruling in Globe Newspaper Co. v. Superior Court which held that state statutes cannot exclude the press and public from testimony of minor victims of sex crimes without a case-by-case determination that compelling interests of the state require exclusion. 457 U.S. 596, 602‑03 (1982). In doing so, however, courts turn to the question of whether good reasons can be found for restricting the means of public access and the types of media coverage—especially where the restriction precludes the public at large from gaining any meaningful acquaintance with the conduct of court business. Westmoreland v. CBS Inc., 596 F. Supp. 1166, 1168 (S.D.N.Y.), aff'd, 752 F.2d 16 (2d Cir. 1984).

The presumption of public access to documents used by parties moving for, or opposing, summary judgment can be overcome only by compelling reasons. Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004); see United States v. Basciano, No. 03-CR-929 (NGG), 2007 WL 1827330, at *1 (E.D.N.Y. June 25, 2007) (holding that the victim’s wife’s privacy interest superseded the media’s presumption of access to the photograph as it was admitted to evidence). But see United States v. Madoff, 626 F. Supp. 2d 420 (S.D.N.Y. 2009) (holding that the presumption of access outweighed privacy rights of victims who did not object to disclosure of their identifying information).

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B. Cameras and other technology in the courtroom

The First Amendment right of access only protects physical access, not cameras or other recording equipment. See Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. l984). Furthermore, the Second Circuit has held that the denial of recording devices in the courtroom is reasonable and does not violate the First Amendment. United States v. Yonkers Bd. of Educ., 747 F.2d 111 (2d Cir. 1984) (affirming lower court’s denial of newspaper reporter’s motion to allow a tape recorder in courtroom during a civil trial).

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C. Tips for covering courts in the jurisdiction