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4th Circuit

Author

Craig T. Merritt
cmerritt@cblaw.com
David B. Lacy
dlacy@cblaw.com
CHRISTIAN & BARTON, LLP
909 E. Main St., Suite 1200
Richmond, Virginia 23219
Tel.: (804) 697-4100
Fax: (804) 697-4112

Last updated Jan. 31, 2019

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I. Introduction: Access rights in the jurisdiction

“The value of openness in judicial proceedings can hardly be overestimated.” United States v. Moussaoui, 65 F. App'x 881, 885 (4th Cir. 2003).

Public access promotes the public’s interest in monitoring the functioning of the courts and the integrity of the judiciary, and, particularly in criminal cases, provides a community therapeutic value. Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (citation omitted); United States v. Moussaoui, 65 F. App'x 881, 885-86 (4th Cir. 2003).

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A. The roots of access rights

The right of public access to judicial proceedings and records derives from two independent sources: the common law and the First Amendment. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004); Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014).

The common law right of access reflects the historical practice of American courts to permit public access to judicial proceedings and records. The First Amendment right of access arises from the amalgam of its guarantees of speech, press and assembly. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980).

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B. Overcoming a presumption of openness

The common law provides a default presumption of access to all court proceedings and records. A party seeking to overcome the common law presumption of access bears the burden of showing some countervailing interest that outweighs the public interests in access. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 293 n.12 (4th Cir. 2013) (“[T]o overcome the common law presumption of access, the government's interests must merely outweigh the public's interest.”).  Some of the factors to be weighed in the common law balancing test include whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public’s understanding of an important historical event; and whether the public has already had access to the information contained in the records. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)).  Ultimately, whether to permit access under the common law is a matter within the trial court’s “supervisory power” and is one “best left to the sound discretion of the [district] court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. (quoting Nixon, 435 U.S. at 598–99).  Thus, a trial court’s denial of access under the common law is reviewed only for abuse of discretion. Rushford, 846 F.2d at 253 (citing Nixon, 435 U.S. at 597–99).

In contrast to the common law, the First Amendment right of access only applies to particular proceedings and records but weighs more heavily in favor of openness. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 643 (W.D. Va. 2006) (“Generally speaking, the First Amendment right of access applies to a narrower range of materials, yet weighs more heavily in favor of the public’s right to obtain those sealed documents.”); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *2 (E.D. Va. Jan. 30, 2019) (“The common law right applies to a broader range of scenarios, but the First Amendment affords a greater degree of substantive protection.”).  The standard for overcoming a First Amendment presumption of access is more “rigorous” than the common law standard. In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986).  To overcome a First Amendment presumption of access, the moving party must show: (1) that restricting access is necessary to further a compelling governmental interest; (2) that the restriction is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)); In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984) (“Even with findings adequate to support closure, the trial court must consider reasonable alternatives before access may be restricted.”).  The Fourth Circuit reviews a district court’s decision concerning access under the First Amendment de novo. Id. (citing In re State-Record Co., Inc., 917 F.2d 124, 127 (4th Cir. 1990)).

Because the common law and First Amendment invoke different standards for assessing the right of access, the district court must identify which is the source of the right of access before balancing the claimed interests. Va. Dep't of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004); Co. Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (remanding in part because district court failed to identify source of public’s right of access).  The Fourth Circuit employs the “experience and logic” test to determine if a right of access exists under the First Amendment, asking: (1) whether the place and process 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. In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 291 (4th Cir. 2013) (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)); see also Press–Enter. Co. v. Super. Ct., 478 U.S. 1, 8–10 (1988)).

Regardless of whether the presumption arises from the common law or the First Amendment, the public’s right of access may only be abrogated “in unusual circumstances.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004).  “The reason for this presumption is simple: ‘Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification.’” In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 (E.D. Va. Jan. 30, 2019) (quoting Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014)).

Because the First Amendment standards afford greater substantive protection to the public's right to access, satisfying the First Amendment standards also necessarily satisfies the relevant common law standards. Hopeman Bros., Inc. v. Cont'l Cas. Co., No. 416-cv-00187, 2018 WL 2426272, *1 (E.D. Va. Feb. 7, 2018).

The weight afforded to the interest to be protected may be determined in part by the response of the individual who is affected by disclosure. See Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 683 (M.D.N.C. 2004) (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 512 (1984)) (denying motion to seal academic transcript filed in connection with summary judgment motion because the party to be protected took no affirmative action in response to the sealing motion, and elected to take no position when invited to do so by the court, and because there is a strong presumption in favor of disclosure).

The interest to be protected through closure must be concrete and particular to the proceeding at issue; generalized, unsubstantiated and speculative concerns are insufficient to overcome either a common law or a First Amendment right of access. See Doe v. Pub. Citizen, 749 F.3d 246, 270 (4th Cir. 2014); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004); United States v. Rosen, 487 F. Supp. 2d 703, 717 (E.D. Va. 2007).

Claims of confidentiality for court filings cannot be made indiscriminately and without evidentiary support.  “Statements in a brief are not evidence and are insufficient to justify a motion to seal.” United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *5 (M.D.N.C. Sept. 4, 2018) (citations omitted); Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *2 (M.D.N.C. May 1, 2018) (citing INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984)).

The proposed restriction on access “must actually operate to prevent the threatened danger.” In re Murphy-Brown, LLC, 907 F.3d 788, 798 (4th Cir. 2018) (internal quotations omitted).  Consideration of possible alternatives is not necessary if the proposed restriction on access is not substantially likely to protect the interest claimed. See In re Charlotte Observer, 882 F.2d 850, 855 (4th Cir. 1989) (“Where closure is wholly inefficacious to prevent a perceived harm, that alone suffices to make it constitutionally impermissible.”).

Although generally the First Amendment allows more access than the common law, a district court in the Fourth Circuit has found that “[the] common law right of access is especially strong in criminal cases, because ‘the process by which the government investigates and prosecutes its citizens is an important matter of public concern.’” In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, at *5 (W.D. Va. July 23, 2018) (quoting United States v. Wecht, 484 F.3d 194, 210 (3d Cir. 2007)); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *2 (E.D. Va. Jan. 30, 2019) (“For criminal cases, public access ‘plays a particularly significant role in the functioning of the judicial process’ and inures to the benefit of ‘both the defendant and ... society as a whole.’”) (quoting Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 606 (1981)).

Even where all of the litigants support the motion to seal, and even where a public hearing on the question does not bring forth anyone to assert the right of access, a court must still engage in a careful deliberation on the issue. Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 754 (E.D. Va. 2018); Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 623 (E.D. Va. 2011) (“[W]hile it is true that the public's interest in judicial documents is greater when the case itself is already one of great public attention, the right of access still must be protected even where the case at hand does not appear to be one in which the public has already expressed interest.”).

“[T]he mere fact that a court document was previously sealed does not suggest that it should remain sealed permanently.” Topiwala v. Wessell, No. CIV. WDQ-11-0543, 2014 WL 2574504, *3 (D. Md. June 5, 2014) (citing Columbus–Am. Discovery Grp. v. Atl. Mut. Ins., 203 F.3d 291, 303 (4th Cir. 2000) (“Publicity of [court] records ... is necessary in the long run so that the public can judge the product of the courts in a given case.”)).

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C. Procedural prerequisites to closure

A district court must act on a sealing request as expeditiously as possible to protect the public’s contemporaneous right of access. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014).

When presented with a request to restrict public access to judicial proceedings and records, a district court must comply with certain procedural requirements.  The same procedures are required under the common law and the First Amendment.  The court may temporarily seal the documents while the motion to seal is under consideration so that the issue is not mooted by the immediate availability of the documents. See In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004).

As to the procedural requirements, the district court must:

  • provide reasonable notice to the public that a hearing will be conducted on a motion to restrict access;
  • provide the public with a reasonable opportunity to object to the motion;
  • consider less drastic alternatives to closure; and
  • if the district court determines that restricting access is appropriate, it must support its decision with specific findings, both as to the competing interests and as to potential alternatives, and state them on the record.

See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004); Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).

Failing to observe the procedural prerequisites to closure constitutes error even if the closure might otherwise be proper, and the Fourth Circuit generally will remand the issue to the district court for further consideration using correct procedures and correct substantive standards. See In re Washington Post Co., 807 F.2d 383, 393 (4th Cir. 1986); Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 182 (4th Cir. 1988); Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000).

The opportunity to be heard on a closure or sealing motion is the “central requirement.” In re S.C. Press Ass'n, 946 F.2d 1037, 1039–40 (4th Cir. 1991).  “The failure to provide notice and an opportunity to object renders a closure of proceedings invalid.” In re Associated Press, 172 F. App’x 1, 4 (4th Cir. 2006).  When a closure motion is made in open court, persons present must be given notice and an opportunity to object before the public can be excluded. In re Knight Publishing Co., 743 F.2d 231, 234 (4th Cir.1984); see also United States v. Mohamed, No. 3:14-cr-120, 2015 WL 224408, *2 (E.D. Va. Jan. 14, 2015) (because oral motion to close proceedings was contested, the court ordered briefing and continued the hearing to a later date in order to provide an opportunity for members of the public to articulate their objections).  Individualized notice is not required.  However, when the court has been made aware of the desire of specific members of the public to be present, reasonable steps to afford them an opportunity to submit their views should be taken before closure. In re Knight Pub. Co., 743 F.2d at 234 (citing United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982)); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986).

Alternatives to closure that the district court should consider include voir dire, see In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir. 1989); admonishing the jury not to follow the news or discuss the case, see In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984); witness and jury sequestration, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980); and change of venue, see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563–65 (1976).  “[I]t would be an unusual case in which alternatives could not be used to preserve public access to at least a portion of the record.” Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 182 (4th Cir. 1988).

The Fourth Circuit has rejected pleas by litigants that the public right of access can be accommodated by releasing the information after the trial has concluded, reasoning that the value of openness is threatened whenever immediate access to ongoing proceedings is denied, whatever provision is made for later public disclosure. In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991).

If the court concludes that closure is warranted, the court may redact or file its decision under seal. In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (citation omitted); see also United States v. Adams, 788 F.3d 115 (4th Cir. 2015) (appellate decision issued under seal).

Most district courts in the Fourth Circuit have adopted local rules governing the procedure for requesting leave to file records under seal.  Generally, the local rules are aimed at ensuring compliance with the procedural requirements imposed in the case law.

Maryland: See U.S. Dist. Ct. Rules D. Md., Civil Rule 105(11); U.S. Dist. Ct. Rules D. Md., Criminal Rule 214.

North Carolina (Eastern District): See U.S. Dist. Ct. Rules E.D. N.C., Civ Rule 79.2; U.S. Dist. Ct. Rules E.D. N.C., Crim Rule 55.2.
North Carolina (Middle District): See U.S. Dist. Ct. Rules M.D.N.C., LR5.4.
North Carolina (Western District): See U.S. Dist. Ct. Rules W.D.N.C., LCvR 6.1; U.S. Dist. Ct. Rules W.D. N.C., LCrR 49.1.1.

South Carolina: See U.S. Dist. Ct. Rules D. S.C., Civ Rule 5.03; U.S. Dist. Ct. Rules D. S.C., Crim Rule 49.01; Standing Order In re Sealing of Sentencing Documents (Mar. 14, 2013); Standing Order Regarding Sealing Documents Filed in Criminal Matters (Oct. 28, 2014).

West Virginia (Northern District): See U.S. Dist. Ct. Rules N.D. W.Va., LR Gen P 6.01.
West Virginia (Southern District): See U.S. Dist. Ct. Rules S.D. W.Va., LR Civ P 26.4.

Virginia (Eastern District): See U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5; U.S. Dist. Ct. Rules E.D. Va., Local Criminal Rule 49.
Virginia (Western District): See S. Dist. Ct. Rules W.D. Va., General Rule 9.

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

A. Media standing to challenge closure

News organizations have standing to intervene in actions in which they were not otherwise parties to challenge a district court’s order restricting access to judicial proceedings or records. See Doe v. Pub. Citizen, 749 F.3d 246, 262–63 (4th Cir. 2014) (citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 178 (4th Cir.1988); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252–54 (4th Cir.1988)); see also Hutchins v. Garrison, 724 F.2d 1425, 1432 (4th Cir. 1983) (“[A]s they have abundantly proved in like situations, the news media have both the resources and the ability to vindicate their and the public's rights of access to court proceedings. They have not been reluctant to do so.”); In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *2 (W.D. Va. July 23, 2018) (“Moreover, media outlets ‘unquestionably have standing to challenge access to court documents.’”) (quoting United States v. James, 663 F. Supp. 2d 1018, 1020 (W.D. Wash. 2009)). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (“[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”).

Media intervenors were held to have constitutional standing to challenge an order sealing judicial records and restricting extrajudicial statements by litigants, potential participants and court personnel because the order infringed on the public’s rights under the First Amendment to gather news and receive speech from willing speakers. See In re The Wall St. Journal, 601 F. App'x 215, 218 (4th Cir. 2015).

Nonparty, non-intervenor public advocacy groups were held to have standing to appeal a sealing order because they had sufficiently participated in the underlying action by objecting to the sealing motion and moving to unseal after the motion was granted, albeit without formally seeking leave to intervene, and because the public’s presumptive right of access under the First Amendment provided an interest in the underlying litigation. See Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014).

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B. Procedure for requesting access in criminal cases

If formal intervention is required, it is important to consult the forum’s local rules on motion practice, including requirements for filing a supporting memorandum and for scheduling a hearing.

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C. Procedure for requesting access in civil matters

If formal intervention is required, it is important to consult the forum’s local rules on motion practice, including requirements for filing a supporting memorandum and for scheduling a hearing.

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D. Obtaining review of initial court decisions

“Mandamus, not appeal, ‘is the preferred method of review for orders restricting press activity related to criminal proceedings.’” Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63 (4th Cir. 1989) (quoting In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986)); see also In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (“[T]his court has recognized that mandamus plays an important and necessary role in protecting First Amendment freedoms.”).

Subsequent disclosure of the secreted materials does not moot an appeal of a sealing order. See In re Knight Pub. Co., 743 F.2d 231, 233 (4th Cir. 1984); Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989).

A final disposition of the underlying dispute does not moot an appeal of a sealing order “because the right of access to judicial records and documents is independent of the disposition of the merits of the case.” Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 180 n.* (4th Cir. 1988); see also Under Seal v. Under Seal, 230 F.3d 1354 (4th Cir. 2000) (affirming dismissal of underlying cause for lack of jurisdiction but still remanding for consideration of sealing order).

An order denying a third-party leave to intervene to challenge an order restricting the public’s right of access is tantamount to an adjudication of the right of access and therefore is sufficient to confer standing to seek appellate review of the closure order.  See Doe v. Pub. Citizen, 749 F.3d 246, 261 (4th Cir. 2014).

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III. Access to criminal proceedings

A. In general

The public has a qualified right of access under the First Amendment to criminal trials and certain pretrial proceedings. In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991); In re Charlotte Observer, 882 F.2d 850, 852 (4th Cir. 1989).

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B. Pretrial proceedings

The public’s First Amendment right of access to criminal proceedings extends to preliminary hearings held to determine whether there is probable cause to go to trial, plea hearings, sentencing hearings, suppression hearings and bail hearings. See In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986) (citations omitted).

The public’s First Amendment right of access to criminal proceedings extends to motions to transfer venue. See In re Charlotte Observer, 882 F.2d. 850 (4th Cir. 1989).

The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records.  After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991).

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C. Criminal trials

“The public and press have a right, guaranteed by the First Amendment, to attend criminal trials.” In re Knight Pub. Co., 743 F.2d 231, 233 (4th Cir. 1984); accord In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986) (“The First Amendment clearly guarantees the right of the press and the public to attend criminal trials.”) (citations omitted); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980) (“The right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance.”).

The right to attend criminal trials is not absolute.  “Nonetheless, there is a strong presumption in favor of openness.” In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984).

The public’s First Amendment right of access to criminal trials extends to voir dire. In re Greensboro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984); In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986).

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D. Post-trial proceedings

The public has a First Amendment right of access to sentencing hearings. In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986).

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E. Appellate proceedings

The public’s First Amendment right of access extends to appellate proceedings, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

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IV. Access to criminal court records

A. In general

“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.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014); see also United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015) (“There is a fundamental public policy supporting open access to court records, particularly for criminal proceedings.”) (citations omitted), aff'd, 607 F. App'x 314 (4th Cir. 2015).  “Publicity of such records, of course, is necessary in the long run so that the public can judge the product of the courts in a given case.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000).

A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).

The mere filing of a document does not trigger the public’s right of access. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)).  Rather, for a right of access to a document to exist under either the First Amendment or the common law, the document must be a “judicial record.” In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013).  A document is a judicial record if it plays a role in the adjudicative process or adjudicates substantive rights. Id.; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63–64 (4th Cir. 1989) (search warrant affidavits are judicial records).  Assuming the document is a judicial record, the extent of the public’s right of access (common law vs. First Amendment) depends on the circumstances in which the record is submitted. See Rushford, 846 F.2d at 252; Baltimore Sun Co., 886 F.2d at 64.

The fact that both the defendant and the prosecuting attorney desire sealing is not dispositive. “The court is not obliged to indulge the requests of the trial participants but must make an independent judgment balancing all the interests.” Matter of Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991).

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B. Arrest records

The public’s right of access to arrest records is not governed by the common law or the First Amendment, unless the records are filed with the court. Cf. Fusaro v. Davitt, 327 F. Supp. 3d 907, 918 (D. Md. 2018) (affirming state statute limiting public access to state’s voter lists; First Amendment does not mandate a right of access to information within the government’s control).

Independent of any judicial proceeding, the public might have a right of access to arrest records under the laws of the jurisdiction possessing the records, such as freedom of information or “sunshine” laws. See, e.g., Va. Code § 3706 (Virginia statute governing mandatory and discretionary disclosure of law enforcement and criminal records).

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C. Dockets

The public has a First Amendment right of access to docket sheets in criminal matters, but only post-indictment.  Pre-indictment investigative matters are not required to be publicly docketed. See In re State–Record Co., 917 F.2d 124 (4th Cir.1990) (per curiam); In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 294–95 (4th Cir. 2013); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 n.3 (E.D. Va. Jan. 30, 2019) (“[T]he 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.”) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004)).

The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records.  After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (While we agree that the public must ordinarily be given notice and an opportunity to object to sealing of public documents, we have never held, nor has any other federal court determined, that pre-indictment investigative matters such as § 2703(d) orders, pen registers, and wiretaps, which are all akin to grand jury investigations, must be publicly docketed.”) (internal quotations omitted).

A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).

A district court in the Fourth Circuit has observed that even after indictment, nondisclosure or sealing is usually appropriate before a charged person has been arrested because of the government’s well-established interests in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public.  Nevertheless, the court held that the motion to unseal was premature, as the record was unclear whether the person had actually been charged. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).

“[T]he keeping of a docket fulfills a public record-keeping function over and above the giving of notice to a party[.]” United States v. Osborne, 452 F. App'x 294, 296 (4th Cir. 2011) (citing Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 n.4 (1978)).

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The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records.  After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (While we agree that the public must ordinarily be given notice and an opportunity to object to sealing of public documents, we have never held, nor has any other federal court determined, that pre-indictment investigative matters such as § 2703(d) orders, pen registers, and wiretaps, which are all akin to grand jury investigations, must be publicly docketed.”) (internal quotations omitted).

A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).

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E. Discovery materials

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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F. Pretrial motions and records

The public has a First Amendment right of access to documents filed in connection with motions to dismiss an indictment, to transfer the case, and to compel discovery. In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999); see also In re Charlotte Observer, 882 F.2d. 850 (4th Cir. 1989) (First Amendment right of access to venue transfer motions and related filings).

The public has a First Amendment right of access to records filed in connection with plea hearings. In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986).

A district court in the Fourth Circuit has held that the public has a common law and First Amendment right of access to charging documents.  However, after indictment but before arrest, the government has a compelling interest in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3-4 (E.D. Va. Jan. 30, 2019).

A district court in the Fourth Circuit has held that the public’s right of access does not include the right to compel the government to disclose whether a person has been criminally charged, as such information does not constitute a judicial record. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 n.6 (E.D. Va. Jan. 30, 2019).

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G. Trial records

“A First Amendment right of access applies to a criminal trial, including documents submitted in the course of a trial.” In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999); see also U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5(H) (“Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.”).

The public’s right of access to trial exhibits does not attach until the exhibit is published to the jury, even if it was previously admitted into evidence.  The district court should make trial exhibits available to the public as soon as is practically possible, but in no event later than the day after the exhibit is published to the jury, or, in the case of an exhibit that is published to the jury in parts, after all parts of the exhibit have been published. See In re Associated Press, 172 F. App’x 1 (4th Cir. 2006).

The public’s right of access to trial exhibits does not include a right of physical access to a 911 audio tape that was played in open court in a criminal trial and admitted into evidence where the public was provided a complete verbatim transcript of the recording. See Fisher v. King, 232 F.3d 391, 396-397 (4th Cir. 2000) (citing Nixon v. Warner Communications, 435 U.S. 589 (1978)).

The public’s right of access extends to the transcript of a judicial proceeding and the original audio recording of a proceeding, but not to an audio recording that merely “backs up” the court reporter’s stenographic record. See United States v. Davis, 648 F. App'x 295, 297 (4th Cir. 2016) (quoting Smith v. U.S. Dist. Court Officers, 203 F.3d 440 (7th Cir. 2000)).

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H. Post-trial records

The public has a First Amendment right of access to sentencing memoranda and the exhibits attached thereto. See United States v. Stier, No. 2:17-cr-00054, 2018 WL 1787888, *3 (S.D.W. Va. Apr. 13, 2018) (citing In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986)).

An interest in protecting the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, was sufficient to overcome the public’s right of access to a sentencing memorandum and justify redacting the names of the defendant’s wife and child and their photographs. See United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (reversing order denying defendant’s motion to seal sentencing memorandum and remanding with instructions to allow the defendant to file the full memorandum under seal and a redacted version available to the public).

The public has a right of access to records filed in connection with a motion to vacate a plea agreement. See United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015), aff'd, 607 F. App'x 314 (4th Cir. 2015).

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I. Appellate records

The public’s First Amendment right of access extends to appellate proceedings, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

If the court concludes that sealing is warranted, the court may file its statement of the reasons for its decision under seal. In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (citation omitted); see also United States v. Adams, 788 F.3d 115 (4th Cir. 2015) (appellate decision issued under seal).

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J. Other criminal court records issues

The public does not have a First Amendment right of access to “attorney inquiry hearings” designed to address a wide variety of problems that can arise between criminal defendants and their counsel, including, for example, potential conflicts of interests.  Openness can frustrate the purpose of such hearings by forcing the defendant to choose between openly explaining his problem with his attorney (in which case the Government may catch a glimpse of his defense strategy and takes steps to frustrate it) and explaining his problem in very general terms (leaving the presiding judge to guess at the nature of the problem and its solution). See United States v. Byrd, No. RDB-14-0186, 2015 WL 221769, *2 (D. Md. Jan. 13, 2015) (denying motion to unseal transcript of attorney inquiry hearing), report and recommendations adopted, 2015 WL 2374409 (D. Md. May 15, 2015).

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V. Access to civil proceedings

A. In general

“[P]retrial civil proceedings are generally open to the public.” 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-cv-00310-F, 2016 WL 3030166, *6 (E.D. N.C. May 25, 2016) (citing Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004)).

In the civil context, much of the case law concerns access to judicial records, not proceedings.  However, one district court in the Fourth Circuit has observed that the distinction is immaterial. See Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“Courts have interpreted Richmond Newspapers broadly, and make little distinction between the right of access to court proceedings and the right of access to court records.  These courts understand Richmond Newspapers to recognize the public’s general right to receive information within a court’s control.”) (internal quotations omitted).

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B. Pre-trial proceedings

“Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (denying motion to seal pleadings and exhibits relating to a motion for a protective order to prohibit a deposition).

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C. Trials

The First Amendment right of access extends to civil trials. Am. Civil Liberties Union v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (citations omitted); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 n.4 (4th Cir. 1988).

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D. Post-trial proceedings

E. Appellate proceedings

The public’s First Amendment right of access extends to appellate proceedings, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

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VI. Access to civil records

A. In general

“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.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014) (citations omitted); see also Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 580 (4th Cir. 2004) (observing that in some instances, the public interest in access may be as strong as, or stronger than, in most criminal cases) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15 (1979)).  “Publicity of such records, of course, is necessary in the long run so that the public can judge the product of the courts in a given case.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000).

The mere filing of a document does not trigger the public’s right of access. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)).  Rather, the public’s rights of access under the First Amendment and the common law only attach to “judicial records.” In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013).  A document is a judicial record if it plays a role in the adjudicative process or adjudicates substantive rights. Id.; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988).  Assuming the document is a judicial record, the source of the public’s right of access (common law vs. First Amendment) depends on the circumstances in which the record is submitted. See Rushford, 846 F.2d at 252.

Settlement of a case before a final adjudication on the merits does not, by itself, affect either the status of filings as judicial records or the public’s right of access thereto. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).

The fact that a document was exchanged pursuant to a protective order entered by the court is not dispositive of whether the document should be made available to the public if the document is subsequently filed with the court.  Parties may not, by agreement, bypass the presumption of public access to judicial documents. See Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725, 729 (M.D.N.C. 2013) (citing In re Violation of Rule 28(D), 635 F.3d 1352, 1358 (Fed. Cir. 2011); Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 455 F. Supp. 2d 399, 437-38 (D. Md. 2006)).

A request to file a redacted document is, in effect, a motion to seal invoking the substantive and procedural protections attendant to the public’s right of access. See Automation, Inc. v. Applied Robotics, Inc., 801 F. Supp. 2d 419, 424–25 (M.D.N.C. 2011) (collecting cases); see also Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 279 (D. S.C. 2013) (“Honda attempts to distinguish Rule 5.03(E) on the basis that this is a motion to redact, not a motion to seal. However, the result Honda seeks is the same—removal of any reference to the settlement amount in a filed document.”).

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B. Dockets

The Fourth Circuit has held that the public has a First Amendment right of access to docket sheets in civil matters. See Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) (noting “a more repugnant aspect to depriving the public and press access to docket sheets: no one can challenge closure of a document or proceeding that is itself a secret.”); see also In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 n.3 (E.D. Va. Jan. 30, 2019) (“[T]he 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.”) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004)); Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 n.4 (1978) (“[T]he keeping of a civil docket pursuant to Rule 79 fulfills a public recordkeeping function over and above the giving of notice to the losing party that a final decision has been entered against it.”).

The United States has a compelling interest in protecting an ongoing fraud investigation in qui tam actions pursuant to the False Claims Act sufficient to overcome the public’s right of access to the docket.  However, after the United States has decided to intervene, a litigant’s bare privacy interest is insufficient to justify continued sealing of a qui tam proceeding and its records. See Am. Civil Liberties Union v. Holder, 673 F.3d 245 (4th Cir. 2011); Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003); United States v. King Pharm., Inc., 806 F. Supp. 2d 833 (D. Md. 2011).

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C. Discovery materials

A right of access does not attach to discovery materials exchanged between parties. However, a First Amendment right of access attaches to discovery materials that are submitted in connection with a dispositive motion. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988).  In Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004), the district court assumed that the public had a First Amendment right of access to discovery records that were filed in connection with pretrial discovery motions, including a motion to quash, a motion to compel and a motion to lift protective orders.  On appeal, the Fourth Circuit noted that it was “not at all convinced that this is a correct assumption” and remanded for further consideration of the source of the right of access, as well as the sufficiency of the claimed reason for sealing.  On remand, the district court held that the discovery materials were subject to a common law, but not a First Amendment, right of access that was partially overcome to protect the integrity of an ongoing investigation. See Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177 (W.D. Va. Mar. 29, 2015).

In the absence of a definitive decision from the Fourth Circuit, district courts have reached different conclusions about the source of the right of access to discovery materials. Compare id. (common law) and Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847, *1 n.1 (S.D.W. Va. July 8, 2015) (applying good cause standard) with Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.”).  Some district courts in the Fourth Circuit have even suggested that no right of access attaches to discovery materials filed in connection with discovery motions, on the theory that discovery motions are merely procedural and do not affect substantive rights. See Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 489 n.8 (D. Md. 2014); United States v. Johnson, No. 12-cv-1349, 2014 WL 12787211, *3 (M.D.N.C. Feb. 10, 2014). But see Washington, 2015 WL 6673177 at *4-8.  Such a conclusion is at odds with In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283 (4th Cir. 2013), in which the Fourth Circuit held that a document is a judicial record if it adjudicates substantive rights or “plays a role in the adjudicative process.”

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D. Pre-trial motions and records

Complaints in civil actions qualify as judicial records to which a presumption of access attaches. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).

The United States has a compelling interest in protecting an ongoing fraud investigation in qui tam actions pursuant to the False Claims Act sufficient to overcome the public’s right of access.  However, after the United States has decided to intervene, a litigant’s bare privacy interest is insufficient to justify continued sealing of a qui tam proceeding and its records. See Am. Civil Liberties Union v. Holder, 673 F.3d 245 (4th Cir. 2011); Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003); United States v. King Pharm., Inc., 806 F. Supp. 2d 833 (D. Md. 2011); Paradyme Mgmt., Inc. v. Curto, No. 8:17-cv-03687, 2018 WL 5013831, *3-4 (D. Md. Oct. 16, 2018).

Documents submitted in connection with a Rule 12(b)(6) motion to dismiss were held to not constitute judicial records for purposes of public access because the documents were excluded by the district court and thus did not play any role in the adjudicative process. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam); see also Washington v. Bruraker, No. 3:02-CV-00106, 2015 WL 6673177, *6-7 (W.D. Va. Mar. 29, 2015) (distinguishing In re Policy Mgmt. Sys.; “The situation changes dramatically, however, when such documents are offered in direct support of a request for action, even if the court ultimately disregards them . . . This Court holds that when documents are filed in support of any filing which the court actually considers, they constitute ‘judicial documents’ that would be subject to the common law right of access. It further holds that such documents are judicial no matter how trivial the requested action is.”).

Assuming without deciding that the First Amendment right of access applies to documents submitted in connection with a Rule 12(b)(1) motion to dismiss for lack of standing, the movant had a compelling interest in protecting the identities of its individual members and confidential donor information, and the proposed redactions were narrowly tailored to that information. See Students for Fair Admissions, Inc. v. Univ. of N.C., No. 1:14-cv-954, 2018 WL 4688388, *7 (M.D.N.C. Sept. 29, 2018).

In denying a motion to seal, a district court in the Fourth Circuit assumed without deciding that the public has a common law right of access in documents submitted in connection with a motion to amend the answer to the complaint. See Benjamin v. Sparks, No. 4:14-cv-186-D, 2018 WL 4113338, *5 (E.D.N.C. Aug. 28, 2018).

The public has a First Amendment right of access to summary judgment motions and accompanying exhibits, see Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004), as well as memorandum opinions deciding summary judgment motions, see Company Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014); see also Hyatt v. U.S. Patent & Trademark Office, No. 1:14-cv-1300, 2015 WL 13036875 (E.D. Va. Nov. 30, 2015) (denying motion to seal memorandum opinion deciding summary judgment motion).  The public’s interest in accessing summary judgment exhibits is particularly significant where the exhibits are important to the court’s decision and are the subject of dispute by the parties. Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018).  One district court in the Fourth Circuit has held that “[a]rguably, however, to the extent the Court does not rely on the [exhibit] in reaching its decision [on summary judgment], no right of access applies.” Hunter v. Town of Mocksville, 961 F. Supp. 2d 803, 806 (M.D.N.C. 2013) (citations omitted).

“Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (denying motion to seal pleadings and exhibits filed in support of a motion for protective order prohibiting deposition). But see Covington v. Semones, No. 7:06-cv-00614, 2007 WL 1170644, *2 (W.D. Va. Apr. 17, 2007) (“[A]s the exhibits at issue were filed in connection with a non-dispositive motion, it is clear there is no First Amendment right of access.”).

In an unpublished decision, a district court in the Fourth Circuit held that exhibits to a motion to seal were not judicial records to which a right of access applied. See United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *4 (M.D.N.C. Sept. 4, 2018).

In an unpublished decision, a district court in the Fourth Circuit held that the public has a First Amendment right of access to documents submitted in connection with a motion to disqualify counsel. See 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-cv-00310-F, 2016 WL 3030166 (E.D. N.C. May 25, 2016).

In an unpublished decision, a district court in the Fourth Circuit refused to seal documents submitted in connection with a motion to withdraw as counsel on the grounds that the moving party had failed to articulate reasons why alternatives to sealing would not adequately protect against the risks of disclosure. See In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2:13-cv-07551, 2018 WL 1146292, *2 (S.D.W. Va. Mar. 1, 2018).

District courts in the Fourth Circuit have held that the public has a right of access to motions for sanctions, although they have reached different conclusions as to whether the right of access arises from the common law or the First Amendment. Compare Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2010 WL 11566361, *1 (E.D.N.C. June 15, 2010) (common law right of access) with United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *5 (M.D.N.C. Sept. 4, 2018) (First Amendment right of access).

Neither the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2051, et seq. nor the Administrative Procedure Act, 5 U.S.C. § 551, et seq. confers upon district courts carte blanche to conduct secret proceedings, and, more importantly, the Constitution forbids it. Doe v. Pub. Citizen, 749 F.3d 246, 270 (4th Cir. 2014).

The public’s right of access extends to exhibits submitted in connection with a motion to compel arbitration. See Erichsen v. RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 574 (E.D. N.C. 2012).

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E. Trial records

The public’s First Amendment right of access applies to exhibits offered into evidence at a civil trial. See Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 579 (E.D. Va. 2009); see also U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5(H) (“Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.”).

Without deciding the source of the right of access, a district court in the Fourth Circuit held that the public’s right of access extends to demonstrative exhibits used in a hearing on a motion to dismiss. See Rambus, Inc. v. Infineon Techs. AG, No. CIV.A. 3:00-cv-524, 2005 WL 1081337 (E.D. Va. May 6, 2005).

If jury instructions are recited in open court, they are “judicial records” to which a First Amendment right of access attaches. Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760 (E.D. Va. 2018).

If no effort is made to prevent dissemination of confidential information at trial, the right to claim that trial materials containing that information should be sealed is waived. See Benedict v. Hankook Tire Co. Ltd., 323 F. Supp. 3d 747, 760–61 (E.D. Va. 2018); see also RegScan, Inc. v. Bureau of Nat. Affairs, Inc., No. 1:11-cv-1129, 2012 WL 2994075, *8 (E.D. Va. July 19, 2012) (denying motion to seal settlement communications) (“If the confidentiality of particular communications was so important as now to warrant retroactively redacting additional information that has been in the public domain for months, then Defendant should have asserted its privilege and objected to Plaintiff's original Motion to Enforce Settlement, as opposed to waiving the privilege by responding with its own version of events and no mention of privilege or confidentiality.”).

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F. Settlement records

Settlement agreements not filed with the court are not judicial records to which a right of access attaches. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (citing Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002)).

Settlements that require judicial approval and which are filed with the court constitute judicial records to which the public’s right of access attaches. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618 (E.D. Va. 2011) (denying motion to seal FLSA settlement agreement); Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640, 644 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement; “The equation changes dramatically when settlement agreements are filed with the court for its approval.”); see also Owino v. IBM Corp., No. 1:12-CV-1041, 2013 WL 2947146, *1 (M.D.N.C. June 14, 2013) (denying motion to seal FLSA settlement agreement; “Courts in recent years have been virtually unanimous in finding that settlements under the FLSA should not be sealed in the ordinary course.”).

“It is essentially impossible for the public to judge the approval process . . . if the terms of the settlement, and the compensation of counsel, are not spread upon the public record.” Hall v. Beverly Enterprises-W. Virgina, Inc., No. CIV. A. 2:10-0842, 2010 WL 4813307, *2 (S.D. W. Va. Nov. 19, 2010).  Thus, a confidentiality provision in a court approved settlement agreement is “of no effect.” Martin v. Am. Honda Motor Co., 940 F. Supp. 2d 277, 280 (D.S.C. 2013).

The public’s right of access to judicially approved settlement agreements is not overcome by the public’s disinterest in the specific litigation. See Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 623 (E.D. Va. 2011) (“[W]hile it is true that the public’s interest in judicial documents is greater when the case itself is already one of great public attention, the right of access still must be protected even where the case at hand does not appear to be one in which the public has already expressed interest.”).

A generalized interest in confidential settlements—without more—is insufficient to rebut the common law presumption of public access. Topiwala v. Wessell, No. CIV. WDQ-11-0543, 2014 WL 2574504, *3 (D. Md. June 5, 2014) (granting motion to unseal settlement agreement.).

In a civil action arising out of an alleged breach of a settlement agreement, the plaintiff’s speculation and conjecture about the harm it will suffer by disclosure was insufficient to justify sealing the agreement. See Monster Daddy LLC v. Monster Cable Prod., Inc., No. CIV.A.6:10-1170, 2010 WL 3885502, *1 (D.S.C. Sept. 29, 2010) (citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 178, 180 (4th Cir.1988)).

Where the litigants seek judicial approval of a settlement, their interest in maintaining the confidentiality of the terms of the settlement is weak. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006) (granting motion to unseal Section 1983 settlement agreement).

The fact of judicial approval, the government being a party to the settlement, the absence of an improper purpose of the requesting party and the failure to comply with mandatory sealing procedures are all factors that weigh against overcoming the public’s right of access to a judicially approved settlement agreement. See Stephens v. Cty. of Albemarle, 422 F. Supp. 2d 640 (W.D. Va. 2006).

Protecting a minor’s privacy interests and medical information has been held a sufficient interest to overcome the public’s right of access to judicially approved settlements. See Mears v. Atl. Se. Airlines, Inc., No. 5:12-CV-613-F, 2014 WL 5018907 (E.D. N.C. Oct. 7, 2014) (granting motion to seal minors’ medical records submitted in connection with motion to approve wrongful death settlements and to redact the financial terms in the settlement agreements).

A private settlement agreement becomes a judicial record to which a right of access attaches if the agreement is filed with the court in connection with a stipulation of dismissal.  In such instances, “the parties are always free to choose not to file the terms of their settlement with the court.” Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177, *7 (W.D. Va. Mar. 29, 2015) (citing Bank of Am. Nat. Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986)).

When a private settlement agreement is filed in connection with a motion to enforce the settlement, the parties may have a compelling interest in maintaining the confidentiality of terms not germane to the decision whether to enforce the settlement. See Copeland v. Dapkute, No. 8:17-cv-01566, 2018 WL 5619672, *9 (D. Md. Oct. 30, 2018) (citing Johnson v. City of Baltimore Dev. Corp., No. CIV.A. GLR-11-2174, 2013 WL 3934022, *4-5 (D. Md. July 29, 2013)).

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G. Post-trial records

H. Appellate records

The public’s First Amendment right of access extends to appellate proceedings and records, although the presumption of access can be overcome by a compelling governmental interest. See United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).

If the court concludes that sealing is warranted, the court may file its statement of the reasons for its decision under seal. In re Wash. Post Co., 807 F.2d 383, 391 (4th Cir. 1986) (citation omitted); see also United States v. Adams, 788 F.3d 115 (4th Cir. 2015) (appellate decision issued under seal).

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I. Other civil court records issues

Pseudonymous litigation undermines the public’s right of access to judicial proceedings.  The public has an interest in knowing the names of the litigants, and disclosing the parties’ identities furthers openness of judicial proceedings.  However, in exceptional circumstances, compelling concerns relating to personal privacy or confidentiality may warrant some degree of anonymity in judicial proceedings, including use of a pseudonym. See Co. Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th Cir. 2014) (citing James v. Jacobson, 6 F.3d 233 (4th Cir. 1993)).

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VII. Jury and grand jury access

A. Access to voir dire

The public’s First Amendment right of access extends to voir dire. In re Greensboro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984); In re Wash. Post Co., 807 F.2d 383, 388 (4th Cir. 1986).

Where the defendant’s Sixth Amendment right to a fair trial is sufficient to overcome the public’s First Amendment right of access to voir dire, a transcript should be made of the jury selection process and disclosed to the public without substantial delay once a jury has been chosen and seated. See In re Greensboro News Co., 727 F.2d 1320, 1321 n.2 (4th Cir. 1984).

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B. Juror identities, questionnaires and other records

Because voir dire is presumptively open to the public, the right of access extends to the names and addresses of the jurors, as well as the men and women summoned but not chosen for the jury.  However, the presumption of access may be overcome in circumstances involving realistic threats of violence or jury corruption. See In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).

Juror questionnaires, as part of voir dire, are presumptively open to the public. See In re South Carolina Press Ass'n, 946 F.2d 1037, 1040-1041 & n.3 (4th Cir. 1991) (affirming district court’s order closing voir dire, including juror questionnaires, to the public); accord Eaglin v. McCall, 689 F. App'x 166, 168 (4th Cir. 2017) (per curiam) (“This presumption of access applies to written juror questionnaires.”).  When the court and the attorneys prepare such a questionnaire and promise confidentiality of responses thereto, they must consider the notice requirements for restricting access. See In re S.C. Press Ass'n, 946 F.2d at 1040 n.3.  The Jury Selection Act prevents disclosure of records or papers used by the jury commission or clerk before voir dire; it is does not prevent disclosure of information revealed during voir dire, and thus is not a basis for sealing juror questionnaires. See In re WP Co., No. 15-1293, Order at n.* (Fourth Circuit Apr. 27, 2015).

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C. Grand jury proceedings and records

There is no First Amendment right of access to grand jury proceedings, as they have traditionally been closed to the public, and public access does not play a significant positive role in the functioning of grand jury proceedings. See Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8–9 (1986).

“Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye.” Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979). 

The Supreme Court has explained that a party seeking disclosure of grand jury materials must make a showing of a “particularized need” by demonstrating that (1) the materials are needed to avoid an injustice in another proceeding; (2) the need for disclosure is greater than the need for continued secrecy; and (3) the request is structured to cover only needed materials. United States v. Moussaoui, 483 F.3d 220, 235 (4th Cir. 2007) (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)).

In an appeal involving a motion to quash a grand jury subpoena, the Fourth Circuit conducted oral argument in camera and sealed its decision to maintain the confidentiality of grand jury proceedings. See In re Grand Jury Subpoena John Doe, No. 05GJ1318, 584 F.3d 175, 178 n.1 (4th Cir. 2009) (deferring to the district court, in its supervisory capacity for the grand jury proceedings, to determine when the opinions (or any part thereof) should be unsealed and made public).

See generally, Rule 6(e) of the Federal Rules of Criminal Procedure governing secrecy of grand jury proceedings.

The First Amendment does not require public access to grand jury materials submitted to aid the district court during sentencing. See United States v. Foggo, 595 F. Supp. 2d 672, 680–81 (E.D. Va. 2009).

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D. Interviewing jurors

There is no general prohibition on the media interviewing jurors.

The right of a party to interview jurors is governed by Federal Rule of Evidence 606, which “prohibit[s] the interrogation of jurors except with regard to ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.’” United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988).

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VIII. Proceedings involving minors

A. Delinquency

B. Dependency

C. Other proceedings involving minors

The need to protect the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, may justify restricting public access, especially when the defendant may have cooperated with law enforcement. See United States v. Harris, 890 F.3d 480 (4th Cir. 2018) (citing, inter alia, Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982)).  However, only the portion of the record pertaining to the perceived harm should be sealed. See id. (remanding with instructions to file a publicly available redacted version of a sentencing memorandum).

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D. Prohibitions on photographing or identifying juveniles

Except as otherwise provided by statute or rule, the Federal Rules of Criminal Procedure expressly prohibit “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Fed. R. Crim. P. 53.  At least one district court in the Fourth Circuit has held that this restriction does not violate the public’s First Amendment right of access to judicial proceedings. See United States v. Moussaoui, 205 F.R.D. 183, 185 (E.D. Va. 2002).

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E. Minor testimony in non-juvenile courts

Mandatory closure during the testimony of minor victims of sex-offense crimes violates the public’s First Amendment right of access to criminal trials.  Whether a trial court should close the courtroom during minor testimony must be analyzed on a case-by-case basis in which the trial court weighs the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982); see also Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (order closing courtroom during minor’s testimony violated the defendant’s Sixth Amendment right to a public trial).

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

Even assuming, arguendo, that the public’s right of access extends to civil commitment hearings conducted pursuant to 18 U.S.C. § 4245, the public is not guaranteed a direct view of all that transpires. See United States v. Baker, 45 F.3d 837, 846 n.8 (4th Cir. 1995) (affirming use of videoconferencing to conduct a commitment hearing).

In an unpublished decision, a district court in the Fourth Circuit denied a motion to hold a competency hearing in camera while observing that “[c]ompetency hearings are routinely held in open court in this district,” and holding that “[n]othing in the forensic reports filed in this case addresses details which are so unique or sensitive as to justify a closed hearing and defense counsel have not articulated any compelling reasons to overcome the strong First and Sixth Amendment interests in open criminal proceedings.” United States v. Moussaoui, No. CRIM.01-455-A, 2002 WL 1311734, *1 (E.D. Va. June 11, 2002).

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D. Attorney and judicial discipline

A consent order disbarring an attorney from the Fourth Circuit is a matter of public record. However, the required affidavit from the attorney indicating his/her consent to disbarment will not be publicly disclosed or made available for use in any other proceeding except upon order of this Court. See U.S. Ct. of App. 4th Cir. Local Rule 46(g).

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E. Immigration proceedings

F. Other proceedings

The public has a First Amendment right to attend a creditors’ meeting held in connection with a bankruptcy proceeding. See In re Astri Inv., Mgmt. & Sec. Corp., 88 B.R. 730, 741–42 (D. Md. 1988) (vacating order closing creditors’ meeting to newspaper reporter).

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X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

In Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. U.S. Dist. Ct., 551 F.2d 559 (4th Cir. 1977), the Fourth Circuit initially held 2-1 that the media lacked standing to challenge a gag order, reasoning that the propriety of the order was not sufficiently clear to support a writ of mandamus, and that the media lacked an interest in the underlying criminal action sufficient to support intervention and an appeal.  Subsequently, in connection with the same underlying criminal action, the Fourth Circuit held that the media did have standing to challenge the gag order, and that mandamus is the preferred vehicle for appellate review. See Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. Martin, 556 F.2d 706 (4th Cir. 1977).  It is now established that mandamus is the preferred method of challenging a gag order, and members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news and to receive speech from willing speakers. See In re Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

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B. Gag orders on the press

To enjoin the press from publishing information disclosed in open court is the type of prior restraint condemned in Nebraska Press. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990).

The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).

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C. Gag orders on participants

The Fourth Circuit permits gag orders on potential prosecution witnesses before and during trial. See In re Russell, 726 F.2d 1007 (4th Cir.), cert. denied, 469 U.S. 837 (1984).

Gag orders are subject to strict scrutiny and may only issue if (i) there is a likelihood that publicity, unchecked, would so distort the views of potential jurors that enough could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court; (ii) the restrictions constitute the least restrictive means to protected the perceived harm; (iii) the restrictions actually operate to prevent the threatened danger; and (iv) the restrictions are narrowly tailored to protecting the perceived harm. See In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018) (vacating gag order purporting to restrict all parties and their lawyers, representatives, and agents, as well as “all potential witnesses” from speaking publicly about twenty interrelated civil nuisance lawsuits).

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

The interests that courts have found sufficiently compelling to overcome the public’s First Amendment right of access include a defendant's right to a fair trial before an impartial jury; protecting the privacy rights of trial participants such as victims or witnesses; and risks to national security. Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014) (citations omitted).

Where a criminal defendant seeks to restrict the public’s First Amendment right of access on the basis of his Sixth Amendment right to a fair trial, the defendant must show that (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity; (2) there is a substantial probability that closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991) (quoting In re State Record Co., Inc., 917 F.2d 124, 128 (4th Cir.1990)); accord In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989) (citing Press–Enterprise Co. v. Superior Court of California (Press-Enterprise II), 478 U.S. 1, 14 (1986)).

Pretrial publicity is not, in and of itself, a reason to allow access, see In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 294 (4th Cir. 2013) (“The mere fact that a case is high profile in nature does not necessarily justify public access.”), or to restrict it, see In re Murphy-Brown, LLC, 907 F.3d 788, 798 (4th Cir. 2018) (“The judicial process does not run and hide at those moments when public appraisal of its workings is most intense.”) (vacating gag order).  The question is whether the trial judge finds it likely that he or she will be unable to guide a jury to an impartial verdict. In re Murphy-Brown, LLC, 907 F.3d at 798.  The Fourth Circuit has emphasized the effectiveness of voir dire in mitigating against potential jury taint, and, therefore, as a reasonable alternative to restricting public access to pretrial proceedings and records. See In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir. 1989); Matter of Application & Affidavit for a Search Warrant, 923 F.2d 324, 329–30 (4th Cir. 1991).

The Fourth Circuit has noted its “complete agreement with the general principle that a compelling governmental interest exists in protecting the integrity of an ongoing law enforcement investigation.” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004).  “However, not every release of information contained in an ongoing criminal investigation file will necessarily affect the integrity of the investigation.  Therefore, it is not enough simply to assert this general principle without providing specific underlying reasons for the district court to understand how the integrity of the investigation reasonably could be affected by the release of such information. Whether this general interest is applicable in a given case will depend on the specific facts and circumstances presented in support of the effort to restrict public access.” Id.

A district court in the Fourth Circuit has observed that after indictment but before arrest, the government has a compelling interest in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3 (E.D. Va. Jan. 30, 2019); see also Fed. R. Crim. P. 6(e)(4) (“The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.”).

There is no question about the propriety of excising the name of a confidential informant from judicial records. In re Knight Pub. Co., 743 F.2d 231, 236 (4th Cir. 1984).

National security concerns about confidentiality may sometimes warrant closure during sensitive portions of trial proceedings, such as testimony about state secrets. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.24 (1980).  However, a generalized assertion of national security concerns by the Government is not sufficient reason to close a hearing or deny access to documents. United States v. Moussaoui, 65 F. App'x 881, 887 (4th Cir. 2003); accord United States v. Rosen, 487 F. Supp. 2d 703, 717 (E.D. Va. 2007). See also In re Washington Post Co., 807 F.2d 383, 392 (4th Cir. 1986) (“A blind acceptance by the courts of the government's insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons, would impermissibly compromise the independence of the judiciary and open the door to possible abuse.”).

The government’s interest in protecting classified information is sufficiently compelling to overcome the public’s right of access. United States v. Moussaoui, 65 F. App'x 881, 887 (4th Cir. 2003)

The privacy interests of a person’s personnel file may suffice to overcome a common law and First Amendment right of access, particularly when the subject of the personnel file is not a party to the underlying action and the files are not directly at issue. See Guessford v. Pennsylvania Nat'l Mut. Cas. INS. Co., No. 1:12-cv-260, 2014 WL 12594127, *4 (M.D.N.C. Sept. 30, 2014). Compare In re Voluntary Disclosures in Fifty-Five Closed Cases, No. 7:16-cr-00044-MFU, 2018 WL 3540281, *6 (W.D. Va. July 23, 2018) (denying motion to seal where the requesting party filed his own personnel records).

Particularly in the employment discrimination context, district courts in the Fourth Circuit have noted the high standard that must be met to warrant the sealing of court filings. See Thomas v. Delmarva Power & Light Co., No. CV RDB-15-433, 2016 WL 9685172, *2 n.2 (D. Md. Nov. 1, 2016) (citing Brown v. Lorings, 2014 WL 6687120, *2 (D. Md. Nov. 25, 2014)); Simpson v. Technology Serv. Corp., 2015 WL 6447253, *3 (D. Md. Oct. 22, 2015).

“[A]s the first step in determining whether the information sought is entitled to privacy protection, courts have looked at whether it is within an individual's reasonable expectations of confidentiality.” Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 683 (M.D.N.C. 2004) (quoting Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir.1990)).

Where the moving party has a compelling interest in protecting sensitive medical information, it is appropriate to redact the confidential information, not seal the records in their entirety. See Rock v. McHugh, 819 F. Supp. 2d 456, 475–76 (D. Md. 2011) (denying motion to seal the complaint and summary judgment briefs in their entirety).

A corporation may possess a strong interest in preserving the confidentiality of its proprietary and trade-secret information, which in turn may justify partial sealing of court records. Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)); LifeNet Health v. LifeCell Corp., No. 2:13-cv-486, 2015 WL 12516758, *2 (E.D. Va. Jan. 9, 2015) (denying motion to seal portions of trial transcript without prejudice to the moving party to propose redactions limited to the confidential information to be protected); see also Woven Elecs. Corp. v. Advance Grp., 930 F.2d 913 (4th Cir. 1991) (“The existence of this exception does not mandate the closure of every trial that involves trade secrets, however.”).  Generalized statements concerning confidentiality are not sufficient to justify restrictions on public access. See Erichsen v. RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 575 (E.D.N.C. 2012) (denying motion to seal exhibits to motion to compel arbitration).

The mere existence of confidentiality clause in a contract is not dispositive as to whether the contract can be filed under seal. See id. at 574; Lifenet Health v. Lifecell Corp., No. 2:13-cv-486, 2015 WL 12517430, *3–4 (E.D. Va. Feb. 12, 2015).

A corporation’s private interest in protecting merely confidential and commercially sensitive information is not sufficiently compelling, absent a claim of trade secret status, to overcome the public’s First Amendment right of access to judicial records. See Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 591 (E.D. Va. 2009).  Furthermore, there is no compelling interest in protecting commercially sensitive information when the information has already been released publicly by the party that wishes to restrict access. See Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 766 (E.D. Va. 2018) (citations omitted).

Courts generally accept a claim of privilege, including the attorney-client privilege, as capable of overriding the presumption of public access and thereby justifying redaction of documents. United States ex rel. Thomas v. Duke Univ., No. 1:17-CV-276, 2018 WL 4211375, *6 (M.D.N.C. Sept. 4, 2018) (collecting cases).

A protective order regulates the parties’ extrajudicial conduct but is not sufficient, by itself, to justify the continued sealing of filings in court. Visual Min., Inc. v. Ziegler, No. PWG-12-3227, 2014 WL 690905, *5 (D. Md. Feb. 21, 2014) (citing Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004)); see also United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *13 (M.D.N.C. Sept. 4, 2018) (“The designation of documents as confidential under a protective order does not require automatic sealing, as ‘courts in the Fourth Circuit have made it clear that the mere fact that a document was subject to a blanket protective order does not relieve the parties or a court of the obligation to comply with the Fourth Circuit’s otherwise applicable sealing regimen.’”) (quoting Colony Ins. Co. v. Peterson, No. 1:10-cv-581, 2012 WL 1047089, *2 (M.D.N.C. Mar. 28, 2012)).

A bare allegation of reputational harm is not sufficient to overcome the public’s right of access under the First Amendment or the common law. See Doe v. Pub. Citizen, 749 F.3d 246, 269 (4th Cir. 2014).  “When parties ‘call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.’” Id. at 271 (quoting Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)); see also Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018) (“The ‘mere fact’ that a public filing ‘may lead to a litigant’s embarrassment will not, without more, compel the court to seal its records.’”) (quoting Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)).

Safeguarding the physical and psychological well-being of a minor victim is a compelling interest, but it does not mandate closure; restricting public access must be considered on a case-by-case basis. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607–08 (1982) (striking down state statute that required, without exception, closure during testimony of minor victim of sexual offense); see also Bell v. Jarvis, 236 F.3d 149, 167–68 (4th Cir. 2000) (order closing courtroom during testimony of minor victim violated criminal defendant’s Sixth Amendment right to a public trial).  Where sealing is appropriate to protect the well-being of a minor or other family member, only the portion of the judicial record implicating the minor’s well-being should be redacted. See United States v. Harris, 890 F.3d 480 (4th Cir. 2018) (remanding with instructions to produce redacted copy of sentencing memorandum).

District courts in the Fourth Circuit have found that redaction or sealing of information related to alleged sexual abuse victims serves a compelling government interest. Painter v. Doe, No. 3:15-cv-369-, 2016 WL 3766466, *4 (W.D. N.C. July 13, 2016) (citing Alexander v. City of Greensboro, 2013 WL 6687248, *5 (M.D.N.C. Dec. 18, 2013); Wilmink v. Kanawha Cnty. Bd. of Educ., 2006 WL 456021 at *3 (S.D. W. Va. Feb. 23, 2006)).

The Family Educational Rights and Privacy Act (“FERPA”) can establish a compelling interest in protecting the privacy of education records, as that term is defined by FERPA. See Painter v. Doe, No. 3:15-cv-369, 2016 WL 3766466, *4 (W.D.N.C. July 13, 2016) (granting emergency motion to seal transcript of college judicial proceeding filed with the complaint); but see Jennings v. Univ. of N. Carolina at Chapel Hill, 340 F. Supp. 2d 679, 682 (M.D.N.C. 2004) (“While FERPA may show that Congress has recognized a student's interest in the privacy of her educational records, the legal action exception contained in the regulations limits that interest.”) (denying motion to seal academic transcript filed in connection with a motion for summary judgment).

The public has a legitimate interest in seeing how colleges respond to sexual assault complaints. Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018) (citing Doe v. Temple Univ., No. 14–4729, 2014 WL 4375613, *2 (E.D. Pa. Sept. 3, 2014)).

There is no compelling interest in restricting public access to information that would otherwise support closure if the information is already public. See Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004) (citing In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir.1990)); see also Glaxo Grp. v. Leavitt, 481 F. Supp. 2d 437, 438 (D. Md. 2007) (denying motion to seal a memorandum opinion in part because “by the time [the movant] sought to have the court recall its opinion, a copy of the opinion could already be found on a popular legal research website, and not simply on the court’s website. Thus, the request came too late[.]”); Benedict v. Hankook Tire Co., 323 F. Supp. 3d 747, 766 (E.D. Va. 2018) (finding no compelling interest in protecting commercially sensitive information when the information has already been released publicly by the party that wishes to restrict access); United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015) (“In this age of electronic case filing, where a party delays in moving to seal a document that is filed on the court's public docket, removing the document from the public record is essentially an act of futility.”), aff'd, 607 F. App'x 314 (4th Cir. 2015).

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B. Cameras and other technology in the courtroom

Except as otherwise provided by statute or rule, the Federal Rules of Criminal Procedure expressly prohibit “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Fed. R. Crim. P. 53.  At least one district court in the Fourth Circuit has held that this restriction does not violate the public’s First Amendment right of access to judicial proceedings. See United States v. Moussaoui, 205 F.R.D. 183, 185 (E.D. Va. 2002).

The Fourth Circuit’s Electronic Device Policy prohibits photography and audio/visual recording devices in the courthouse absent the Fourth Circuit’s express authorization.  Public Internet or broadband access is not available anywhere in the courthouse or annex except the Fourth Circuit law library. See http://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic-device-policy.

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C. Tips for covering courts in the jurisdiction

The Fourth Circuit is not afraid to decide the merits of a dispute over public access, but it will only do so after the district court has thoroughly considered the matter consistent with the procedural and substantive requirements identified in the case law.  If the district court has failed in either regard, the Fourth Circuit will usually remand the case for further consideration.  It is important, therefore, that a party seeking access consider proactive steps that might help ensure that the district court adheres in the first instance to the substantive and procedural requirements.

Addressing access issues proactively also increases the likelihood of successfully obtaining access.  Judges appreciate being advised of access rights before making a decision on what they might otherwise perceive as a routine or noncontroversial request for closure.  Moreover, as a practical matter, convincing a judge not to do something is much easier than convincing the judge to undo something he/she has already done.

A party seeking to attend the trial of a high profile matter and to access trial exhibits should contact the district court in advance to determine if any procedures have been adopted to facilitate public access, such as providing an extra room in the courthouse for overflow attendees to view the trial by closed-circuit video, and for timely release of trial exhibits.  A letter to the district court, copying counsel of record, should suffice for this initial inquiry.  The inquiry will often prompt the court to adopt procedures.  District courts have discretion over the extent to which they must accommodate public access at trial.

The right of access is qualified, not absolute.  Therefore, third-parties are well-advised not to adopt a demanding or overbearing approach to access, but to request it in a civil and professional manner that avoids undue disruption and interference with the underlying proceeding.  Most federal district court judges in the Fourth Circuit understand and appreciate the value of public access.  However, no judge appreciates discourteous and disruptive behavior by third-party intervenors, and such behavior will foreclose the potential for accommodations not required to protect the public’s right of access.

Conferring with the litigants before intervening is vital, as it may reveal a meritorious basis for closure not apparent from the record.  Additionally, to the extent an agreement can be reached, it will bolster arguments for access.

 

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