Gregory R. Naron
Dentons US LLP
233 S. Wacker Drive, Suite 5900
Chicago, IL 60606
Last updated Feb. 2020Compare
Open Courts CompendiumCompare
I. Introduction: Access rights in the jurisdictionCompare
A. The roots of access rights
The "public's right of access to court proceedings and documents is well-established" and is “grounded in three important policy concerns. ‘Public scrutiny over the court system serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding.’” In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (quoting Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)).
“Born of the common law, this right also has constitutional underpinnings. . . . Indeed, the First Amendment provides a presumption that there is a right of access to ‘proceedings and documents which have “historically been open to the public” and where the disclosure of which would serve a significant role in the functioning of the process in question.’” Id. (citations omitted); United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989) (where “[p]resentence reports have not generally been available to the public, and publicity would not help to insure that the presentence investigation is properly conducted,” court held “there is no first amendment right of access to presentence reports”). See also Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 599 n. 7 (7th Cir. 2012) (Supreme Court has recognized “a qualified right of the press and public to attend certain governmental proceedings, at least where the proceeding ‘historically has been open to the press and general public,’ and public access ‘plays a particularly significant role’ in the functioning of the proceeding in question and ‘the government as a whole’”) (quoting Globe Newsp. Co. v. Superior Court, 457 U.S. 596, 605-606, 102 S.Ct. 2613 (1982)).
“More general in its contours, the common-law right of access establishes that court files and documents should be open to the public unless the court finds that its records are being used for improper purposes.” Grove Fresh, 24 F.3d at 897; Corbitt, 879 F.2d at 228. The Seventh Circuit has held “there is a strong presumption in support of the common law right to inspect and copy judicial records” and “[w]here there is a clash between the common law right of access and a defendant's constitutional right to a fair trial, a court may deny access, but only on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.” United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982).
However, “[w]here judicial records are confidential”—i.e., “properly submitted to the court under seal”—the “party seeking disclosure” pursuant to the common law right of access “may not rely on presumptions, but must instead make a specific showing of need for access to the document. Of course, the public's right to inspect judicial documents may not be evaded by the wholesale sealing of court papers.” Corbitt, 879 F.2d at 228-29, 240 (while acknowledging that “there may be a public interest in disseminating some information underlying the sentencing of a public figure for crimes related to his public office,” the press would have to “show a ‘compelling need’ with sufficient specificity to merit disclosure of a presentence report in whole or in part,” beyond “the generalized public interest present in every criminal case (including those involving public officials)”; remanding for determination by district court).
“In light of the values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous. . . . The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.” Grove Fresh, 24 F.3d at 897.Compare
B. Overcoming a presumption of openness
Once a presumption of access to judicial records has been established, that presumption may be rebutted “when it is demonstrated that suppression is necessary to preserve ‘higher values’ and when the suppression is ‘narrowly tailored’ to serve those interests. . . . Overcoming the presumption, however, is a formidable task. The court must be ‘firmly convinced that disclosure is inappropriate before arriving at a decision limiting access.’” In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (citing Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)); see Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984); United States v. Blagojevich, 612 F.3d 558, 563 (7th Cir. 2010) (finding the “presumption in favor of disclosure . . . so far has not been overcome, because the district court did not afford an opportunity to present evidence and did not make any findings of fact”; remanding for further proceedings in media intervention for access to juror names).Compare
C. Procedural prerequisites to closure
“[W]here the rights of the litigants come into conflict with the rights of the media and public at large, the trial judge's responsibilities are heightened. In such instances, the litigants' purported interest in confidentiality must be scrutinized heavily.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 899 (7th Cir. 1994).
The Seventh Circuit has “emphasized that district courts should articulate on the record the reason for any order that inhibits the flow of information between the courts and the public. . . . ‘[w]hen a court finds that the presumption of access has been rebutted by some countervailing interest, that “interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”’” In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998) (quoting Grove Fresh, 24 F.3d at 898); see also In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1313 n. 17 (7th Cir. 1984); United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982).
The Court would not affirm an order denying access where “no evidence was taken, no argument entertained, no alternatives considered, and no findings made” before the district court announced its decision; what is “essential” is “an opportunity for the parties (including the intervenors) to make their views known in detail, followed by a considered decision that includes an explanation why alternatives” to limiting access would be unsatisfactory. United States v. Blagojevich, 612 F.3d 558, 564-65 (7th Cir. 2010). “[B]efore closing any part of the criminal process to the public” the court “must consider alternatives to secrecy, whether or not the lawyers propose some.” Id. at 565.
In Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897 (7th Cir. 1990) the Court rejected a party’s request at oral argument to expel a reporter from the courtroom, noting that such extraordinary relief must be sought “in advance of argument, not only to give the other party fair warning and the bench an opportunity for due deliberation but also to give the press—which may be the only adversary of the request for secrecy—a chance to be heard.” Id. at 900.
Local Rules also bear on procedure for seeking to seal portions the record.
Seventh Circuit Operating Procedure 10 (“Sealing Portions of the Record”) provides that:
(a) Requirement of Judicial Approval. Except to the extent portions of the record are required to be sealed by statute (e.g., 18 U.S.C. §3509(d)) or a rule of procedure (e.g., Fed. R. Crim. P. 6(e), Circuit Rule 26.1(b)), every document filed in or by this court (whether or not the document was sealed in the district court) is in the public record unless a judge of this court orders it to be sealed.
(b) Delay in Disclosure. Documents sealed in the district court will be maintained under seal in this court for 14 days, to afford time to request the approval required by section (a) of this procedure.
Motions to seal documents in the appellate record under Operating Procedure 10 are presented to the motions judge, and are rigorously scrutinized; the Court has “remind[ed] counsel that it is often better to exclude the documents from the appellate record than to analyze at length the reasons why they should or should not be sealed.” United States v. Foster, 564 F.3d 852, 854 (7th Cir. 2009) (Easterbrook, J., in chambers); Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002). See Sections IV.I. and VI.G.
Northern District of Illinois Local Rule 26.2 governs “Sealed Documents” and provides, in part, that “[t]he court may for good cause shown enter an order directing that one or more documents be filed under seal. No attorney or party may file a document under seal without order of court specifying the particular document or portion of a document that may be filed under seal.” Id., subd. (b). See also id., subd. (c) (procedures for provisionally filing documents electronically under seal; contemporaneous motion for leave required). “The court may on written motion and for good cause shown enter an order directing that the docket entry for a sealed document show only that a sealed document was filed without any notation indicating its nature. Unless the Court directs otherwise, a sealed document shall be filed pursuant to procedures referenced by Local Rule 5.8.” Id., subd. (f). See also N.D. Ill. Local R. 5.7(a) (where request is made to file a complaint under seal, “[a]bsent any order to the contrary, the contents of the case file shall be treated as restricted documents as defined by LR26.2 for seven days following the day on which the complaint was filed. Except as otherwise ordered, on the seventh day the file will no longer be treated as restricted”).
Eastern District of Wisconsin Local Criminal Rule 49(a) governs sealed hearings and provides that “[a] party seeking a sealed hearing must move the Court in writing prior to the hearing, or orally at the hearing, when a written motion is not practicable. The Court may seal the hearing if the Court finds good cause for such sealing. . . .”Compare
II. Procedure for asserting right of access to proceedings and recordsCompare
A. Media standing to challenge closure
“In order to ensure the right of access—of ‘immediate and contemporary’ access—our case law has recognized that those who seek access to such material have a right to be heard in a manner that gives full protection of the asserted right.” In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (citing Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994) (noting that press has standing to challenge a protective order)).
In Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009), the Seventh Circuit held that a journalist intervenor lacked standing to challenge the terms of a protective order limiting dissemination of unfiled discovery materials, in a case that had been settled and dismissed. Vacating an order that lifted the protective order in its entirety, the Court held that no live controversy existed and the intervenor could not show “an actual or imminent invasion of a legally protected interest”—because there was “no constitutional or common-law right of public access to discovery materials exchanged by the parties but not filed with the court.” Id. at 1065-66. Acknowledging that the Court has “previously held that permissive intervention is a procedurally appropriate device for bringing a third-party challenge to a protective order,” the Court noted that those cases involved requests for access to sealed records in the court file and requests for intervention made during ongoing litigation. “Here, in contrast, the litigation was over, the case was dismissed, and [intervenor] wanted to intervene in order to press a claimed right of access to unfiled discovery material; as such, the question of his standing should have been addressed.” Id. at 1068.
In short, the “procedural propriety” of intervention “does not answer the separate question of whether the requirements of Article III [standing] must be or have been satisfied.” Id. at 1068 n. 5 (criticizing Grove Fresh for “broadly stat[ing] without analysis that ‘the press does have standing to challenge a protective order for abuse or impropriety’”). While the Court holds that post-judgment intervention should “generally be disfavored,” it declined to address “whether a permissive intervenor must establish standing to challenge a protective order in an ongoing case. " Id. at 1071. Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *3 (N.D. Ind. Sept. 6, 2016), objections overruled, 2017 WL 2570283 (N.D. Ind. June 14, 2017) (intervenors had standing to assert motion to unseal in closed case; distinguishing Bond because intervenors did not seek unfiled discovery but documents that “were filed on the docket” and “are judicial records”).
In Carlson v. United States, 837 F.3d 753 (7th Cir. 2016), the court held that plaintiff, along with a number of scholarly, journalistic, and historic organizations, had standing to seek access to sealed grand-jury materials concerning an Espionage Act investigation of the Chicago Tribune’s reporting on military codebreaking during World War II. Plaintiff’s “injury-in-fact is the denial of access to government documents that he has a right to seek”; he had a colorable claim of a right to obtain access; and he did not have to “show that he has any particular connection to the grand jury proceeding. . . . To hold otherwise would raise First Amendment concerns.” Id. at 759. The court held its decision in Bond was “not to the contrary,” emphasizing that “[t]he grand-jury transcripts that Carlson seeks are not like privately produced civil discovery that never makes it through the courthouse door. They are created under the authority of the grand jury, and they remain at all times under the power of the court.” Id. at 760.Compare
B. Procedure for requesting access in criminal cases
“[F]ull protection” for the right of access to judicial proceedings and records “requires adequate notice of any limitation of public access to judicial proceedings or documents and an adequate opportunity, under the circumstances of the case, to challenge that limitation by stating to the court the reasons why the material should remain subject to public scrutiny.” In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998). “According such full protection also requires that the issue be examined in a procedural context that affords the court an opportunity for due deliberation.” Id. (citing Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir.1990)).
Accordingly, “[i]n this circuit, we have intimated that the most appropriate procedural mechanism by which to accomplish this task is by permitting those who oppose the suppression of the material to intervene for that limited purpose.” Id. (citing United States v. Andreas, 150 F.3d 766, 767 (7th Cir. 1998)); see also United States v. Blagojevich, 612 F.3d 558, 559 (7th Cir. 2010) (“The Federal Rules of Criminal Procedure lack a counterpart to Fed. R. Civ. P. 24, which allows intervention. But courts have permitted intervention when the potential intervenor has a legitimate interest in the outcome and cannot protect that interest without becoming a party”) (citing In re Associated Press, 162 F.3d at 507-08). “Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” Id. at 561.
“Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” United States v. Blagojevich, 612 F.3d at 561; United States v. Troup, 2012 WL 3818242, at *2 (N.D. Ind. Aug. 31, 2012) (“Generally, a motion for closure should be docketed publically [sic] and reasonably in advance of any hearing or other disposition—far enough in advance, at least, to give the public a meaningful opportunity to intervene”).Compare
C. Procedure for requesting access in civil matters
“It is apparent . . . that intervention is the procedurally appropriate course for third-party challenges to protective orders.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 896 (7th Cir. 1994); Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (“we have recognized intervention as the logical and appropriate vehicle by which the public and the press may challenge a closure order”); Griffith v. University Hosp., LLC, 249 F.3d 658 (7th Cir. 2001).
“[W]e have recognized the right to intervene to challenge a closure order in the civil context,” and while the press’ interest “does not fit neatly within the literal language of” Federal Rule of Civil Procedure 24, “permitting intervention for the purpose of deciding the confidentiality issue [does not] impermissibly stretch the wording of the Rule.” Jessup v. Luther, 227 F.3d at 997-98 (newspaper “asserts a right directly and substantially related to the litigation, a right of access to court proceedings and documents born of the common law and the First Amendment”).
“Once the judge not only flags an issue as important but also sets a schedule for its resolution, the time has come to intervene”; if people potentially affected “receive notice that the court will hold a hearing to address a particular question, they must participate rather than wait and see what the court does.” United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010); United States v. Troup, 2012 WL 3818242, at *2 (N.D. Ind. Aug. 31, 2012) (“Generally, a motion for closure should be docketed publically [sic] and reasonably in advance of any hearing or other disposition—far enough in advance, at least, to give the public a meaningful opportunity to intervene”).
The “procedural propriety” of intervention “does not answer the separate question” of whether the intervenor has standing. Bond v. Utreras, 585 F.3d 1061, 1068 n. 5, 1071 (7th Cir. 2009) (journalist intervenor lacked standing to challenge terms of protective order limiting dissemination of unfiled discovery, in a case that had been settled and dismissed; however, Court specifically declined to address whether an intervenor “must establish standing to challenge a protective order in an ongoing case”). Bond noted that Federal Rule 24(b)(3) “suggests that intervention postjudgment—which necessarily disturbs the final adjudication of the parties’ rights—should generally be disfavored.” Id. at 1071. Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *2 (N.D. Ind. Sept. 6, 2016) (distinguishing Bond because intervenor there “sought materials disclosed in discovery that were subject to a protective order” while “[t]he documents sought here have been filed with the Court, not merely exchanged in discovery. Further, the purpose of the intervention here is not to disturb the case’s resolution or reopen the case on the merits”).Compare
D. Obtaining review of initial court decisions
The Seventh Circuit has noted that the access issue is more appropriately reviewed on direct appeal rather than by mandamus. United States v. Peters, 754 F.2d 753, 756 (7th Cir. 1985). But see Chase v. Robson, 435 F.2d 1059, 1062 (7th Cir. 1970) (mandamus was appropriate remedy to challenge district court gag order on defendants and counsel; order “imposes a prior restraint on protected first amendment conduct,” and “defendants should not be forced to assert the invalidity of the order as a defense in a contempt proceeding”).
“[A]n order granting or refusing to grant access in favor of an intervening party is appealable under the collateral order doctrine. . . .Thus, even though the order did not end the litigation on its merits, the order was immediately appealable.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 895 (7th Cir. 1994) (citing Wilk v. Am. Med. Ass'n, 635 F.2d 1295 (7th Cir. 1980); Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594 (7th Cir. 1978)); see also O'Keefe v. Chisholm, 769 F.3d 936, 942 (7th Cir. 2014); United States v. Blagojevich, 612 F.3d 558, 559 (7th Cir. 2010) (appeal from order denying release of juror names during trial was supported by the collateral-order doctrine, “because an appeal from the final decision would be too late . . . The only way to vindicate a claimed entitlement to obtain the names before the trial's end is an appeal before the trial's end”) (citing Grove Fresh, 24 F.3d at 895-96).
The Court has also held that an appeal from denial of access should not be dismissed as moot because the underlying trial had ended; “the underlying dispute is ‘capable of repetition, yet evading review,’” i.e., “[i]t is reasonably foreseeable that in other criminal trials similar applications for access to tape recordings will be made and will be denied.” United States v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982); United States v. Peters, 754 F.2d at 758; In re Associated Press, 162 F.3d 503, 511-12 (7th Cir. 1998).Compare
III. Access to criminal proceedingsCompare
A. In general
“The public and the press have a constitutional right of access to attend criminal trials. . . . While the Constitution nowhere explicitly guarantees the right to attend criminal trials, such a right is implied from the first amendment's ‘core purpose’ of assuring free public discussion.” United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985) (citations omitted). A party seeking to close a hearing in a criminal case “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” United States v. Blagojevich, 612 F.3d 558, 564 (7th Cir. 2010) (quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210 (1984)). “[B]efore closing any part of the criminal process to the public . . ., a judge not only must make the findings required by Waller but also must consider alternatives to secrecy, whether or not the lawyers propose some.” Id. at 565.Compare
B. Pretrial proceedings
“The right of access to criminal trials includes a right of access to the voir dire examination of potential jurors in a criminal trial. . . . Press-Enterprise declared that ‘closed proceedings . . . must be rare.’” United States v. Peters, 754 F.2d 753, 759 (7th Cir. 1985) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819 (1984)); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989) (“[t]rials and pre-trial hearings are open to the public under the First Amendment, unless some extraordinary circumstance requires their closure”); United States v. Blagojevich, 662 F. Supp. 2d 998, 1003 (N.D. Ill. 2009) (First Amendment right of access includes voir dire “and trial-like preliminary hearings in criminal cases”); Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 385 (N.D. Ind. 1992) (“The public and press have a ‘presumption of access’ to both criminal and civil court proceedings”; newspaper reporter had right to be present at state court guardianship hearing).
A pretrial hearing cannot be closed “just as a matter of discretion”; “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” United States v. Blagojevich, 612 F.3d 558, 564 (7th Cir. 2010) (quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210 (1984)).
See also N.D. Ind. Local Crim. R. 53-1(b) (“Ordinarily, preliminary proceedings (including preliminary examinations and hearings on pretrial motions) must be held in open court, with the public permitted to attend and observe. But the court may close preliminary proceedings if: (1) the law allows it; and (2) the court cites for the record the specific findings that make doing so necessary”).Compare
C. Criminal trials
“[L]ong embedded in our case law . . . is the strong presumption that all trial proceedings should be subject to scrutiny by the public.” United States v. Ladd, 218 F.3d 701, 703-704 (7th Cir. 2000); United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985). See United States v. Abu Marzook, 412 F.Supp.2d 913, 925 (N.D. Ill. 2006) (closure of courtroom to protect testimony of Israeli intelligence agents was “justified under the mandates of Press Enterprise”; government “rebutted the presumption of openness based on its showing that the anticipated testimony is classified and governed by CIPA”).
However, “the First Amendment question cannot be resolved solely on the label we give the event, i.e., ‘trial’ or otherwise”; while “there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial.” B.H. v. Ryder, 856 F. Supp. 1285, 1291-92 (N.D. Ill. 1994), aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986)).
Under a policy promulgated and enforced in the Domestic Violence section of the Chicago Municipal Court, members of the public were forbidden to take notes in the courtrooms and were subject to expulsion for doing so. Goldschmidt v. Coco, 413 F. Supp. 2d 949 (N.D. Ill. 2006) held a challenge to that policy stated a claim for violation of the First Amendment: “The right of access to public trials and other court proceedings is required by the First Amendment,” and “[a] prohibition against note-taking is not supportive of the policy favoring informed public discussion; on the contrary it may foster errors in public perception.” Id. at 952-53. Nor could the court policy be justified “on the grounds that domestic violence cases often involve ‘highly emotional parties’, ‘outbursts’, and the disclosure of ‘sensitive information regarding parties and witnesses.’” Id. at 953.Compare
D. Post-trial proceedings
The Seventh Circuit has held that First Amendment protections attach to sentencing hearings, in particular, those portions of a sentencing hearing that involve a defendant’s motion for “downward departure,” reasoning that the “‘public has a strong First Amendment claim to access [ ] evidence admitted in a public sentencing hearing.’” United States v. Eppinger, 49 F.3d 1244, 1250-51, 1253 (7th Cir. 1995). The “public must have the opportunity to observe and criticize the judiciary in the operation of its duties. In sentencing, it is the distinct province of the court to determine what constitutes [a] proper sentence.” Id. at 1253 (citations omitted). Cf. United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989) (“Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings”). See also United States v. Sonin, 167 F.Supp.3d 971, 978-79, 44 Media L. Rep. 1641 (E.D. Wis. 2016) (while “a First Amendment right of access attached to a portion of a sentencing hearing that involved the defendant’s cooperation with authorities,” media intervenor’s access right “must yield in this case to protect both the defendants’ privacy interests”—including possible retribution for their cooperation—“as well as the government’s interest in the disclosure of sensitive information[.]” Moreover, “sealing only the portion of the sentencing hearings related to cooperation is narrowly tailored to protect the interests of the parties. . . . Following the closed portion of the hearings, the Court will sentence the defendants in open court and provide detailed reasons to support each sentence”).Compare
E. Appellate proceedings
In most instances, the Seventh Circuit will not close its oral arguments to the public or press. “Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.” In re Krynicki, 983 F.2d 74, 75-76 (7th Cir. 1992) (Easterbrook, J., in chambers). See also Section V.E.
However, in affirming denial of defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act (FISA), the Court held a “brief in camera hearing at which questions were put by the panel to the Justice Department's lead lawyer on the case concerning the classified materials. Only cleared court and government personnel were permitted at that hearing.” United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014). “[C]lassified hearings, including classified oral arguments in courts of appeals,” are not forbidden “when classified materials are to be discussed.” Id.Compare
IV. Access to criminal court recordsCompare
A. In general
“[T]he press' right of access to documents submitted for use in a hearing must be considered separately from the press' right to attend the hearing itself.” United States v. Corbitt, 879 F.2d 224, 228-29 (7th Cir. 1989) (“Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings”).Compare
B. Arrest records
The Seventh Circuit has stated that the federal courts lack jurisdiction to order expungement of arrest records maintained by the executive branch. United States v. Flowers, 389 F.3d 737, 738 (7th Cir. 2004) (citing United States v. Janik, 10 F.3d 470, 472 (7th Cir. 1993)). Flowers and Janik held that the courts have jurisdiction to expunge records maintained by the judicial branch, applying a balancing test. Denying a request for expungement of judicial records of arrest and conviction, the Flowers court noted “the weight of the public interest can be seen in the long tradition of open proceedings and public records, which is the essence of a democratic society.” 389 F.3d at 739. In United States v. Wahi, the court overruled Flowers and Janik insofar as they held that courts have inherent equitable jurisdiction to expunge judicial records. 850 F.3d 296, 302-303 (7th Cir. 2017).Compare
Northern District of Illinois Local Rule 26.2 governs “Sealed Documents” and provides, in part, that “[t]he court may on written motion and for good cause shown enter an order directing that the docket entry for a sealed document show only that a sealed document was filed without any notation indicating its nature. . . .” Id., subd. (f). See also E.D. Wis. Local Crim. R. 49(b) (whenever court orders hearing to be conducted under seal, it may, upon finding good cause, “order that the docket entry for that hearing state only ‘SEALED,’ and that it be accessible only to the Court and the parties directly involved in the hearing”).Compare
D. Warrants, wiretaps and related materials
Warrants. The common law right of inspection attaches once a search warrant affidavit is filed with the clerk. In re Eye Care Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996). Federal Rule of Criminal Procedure 41(g) "facilitates observance of th[e common law] right by directing the judicial officer to file all papers relating to the search warrant in the clerk's office." Id. (citation omitted). The right of access to a warrant affidavit may be “circumscribed by a specific court order (sealed),” and the “Rule provides no time period before which the magistrate must release sealed documents filed with the clerk of the court nor does the rule say anything about access to sealed affidavits.” Id.
In affirming denial of a motion filed by the subject of search warrant to have the warrant affidavit unsealed, the Seventh Circuit held “[t]he trial court properly weighed the parties' respective rights” under the common law, including “the potential adverse consequences of granting immediate access to the warrant affidavits. Such consequences include the likelihood that the secrecy of grand jury proceedings would be violated,” and “disclosure of the affidavits might very likely impair the ongoing criminal investigation.” Id. at 518-19. Among other things, disclosing the sealed affidavits could reveal the identity of unnamed subjects not yet charged; there may be “mistaken notions concerning who might and might not be cooperating with the government or who may be subjects”; and the “cooperation of present and potential witnesses could be compromised or influenced.” Id. at 519. See also United States v. Daoud, 755 F.3d 479 (7th Cir. 2014) (rejecting defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act).
Northern District of Illinois Local Criminal Rule 41 provides, in pertinent part:
This rule, rather than LR26.2, governs a motion to seal a search warrant or seizure warrant. A motion to seal a warrant must be brought to the district judge or magistrate judge who signed the warrant, and must specify a date no more than 90 days later when the sealing order will expire absent a further court order. Any application for delayed notice of a search must comply with 18 U.S.C. § 3103. All filings will be unsealed upon the expiration of the sealing order.
N.D. Ill. Local Crim. R. 41(d). A motion to extend a sealing order for a warrant must be brought to the district judge or magistrate judge who signed the warrant and must be filed no later than three days prior to the expiration of the seal. Id., subd. (e). If the application and warrant are sealed at the time of the return of the search warrant, the return of the search warrant will also be filed under seal. Id., subd. (f). See also S.D. Ind. Local Crim. Rule 49.1-2(c)(2) (“warrant-type applications,” e.g., arrest warrants, search warrants, wiretaps, “may be filed under seal without motion or further order of the court, provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest”); W.D. Wis. Admin. Order No. 337 Re: General Rules for Filing Documents Under Seal (search warrants, applications, and affidavits, and certain other documents may be filed under seal without prior court order).
United States v. Suppressed, No. 16 MC 261, 2019 WL 1077148 (N.D. Ill. Mar. 7, 2019) presented the “rare” question of “how the court should proceed” when a search warrant affidavit “properly subject to a seal order” is “nonetheless accessed by a member of the press”. There, a Chicago Sun-Times reporter “gained access to the affidavit by exploiting a docketing error in the court’s electronic filing system” and reported on it. After the court resealed the affidavit on the electronic docket, the Chicago Tribune moved to intervene and unseal. Granting Tribune’s motion, the court observed that “the applicable seal in this case was never a permanent one, and the default is for the seal to expire absent an on-going justification for secrecy. [N.D. Ill. L.Cr.R. 41.]. Given the extent of the public disclosure in this case, the court is unable to find that a sufficient justification exists here to overcome the Tribune’s interest in accessing the document.” Id. at *3.
Wiretap evidence. “Once wiretap evidence is obtained, Title III strictly limits the disclosure of such evidence as well as the applications, orders, and related filings associated with wiretaps”; the common law right of access does not extend to Title III materials, and there is no historical tradition of public access to Title III materials that would support a First Amendment access right. United States v. Blagojevich, 662 F.Supp.2d 998, 1001 (N.D. Ill. 2009) (citing United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982)).
In reversing a district judge’s order granting news media’s motion to unseal wiretap materials introduced at a suppression hearings, the Seventh Circuit held in Dorfman that neither Title III nor the First Amendment gave judges the authority to conclude that the harm of unsealing was outweighed by the newsworthiness of the materials. 690 F.2d at 1233-34. “Congress in Title III struck a balance between these interests that seems reasonable to us. It put no limits on the public disclosure of lawfully obtained wiretap evidence through public testimony in legal proceedings; but neither did it authorize wiretap evidence not made public in this manner to be made public another way without the consent of the people whose phone conversations were intercepted. . . . We do not think the First Amendment requires a different result. Wiretapping is not yet a constitutionally protected method of news gathering.” Id. at 1234.
While the district court in Blagojevich denied access to actual wiretap evidence, it granted media intervenors access to redacted versions of the briefs in support and in opposition of defendant's motion to suppress evidence (“with the identifying information about uncharged or not already publicly identified individuals redacted”). 662 F. Supp. 2d at 1005-06.Compare
E. Discovery materials
“[U]ntil admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access." In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998); see also United States v. Berger, 990 F. Supp. 1051 (C.D. Ill. 1997) (press does not have right to attend the videotaped deposition of the state governor, which would remain sealed until it was played at trial before the jury; defendant’s right to a fair trial overrides the press’s right of access), rev’d on other grounds, In re Associated Press, 162 F.3d 503 (holding press should have been permitted to intervene but that deposition was not “trial testimony” and “it is well established that discovered but not-yet-admitted evidence is not ordinarily within the scope of press access”).
The Central District of Illinois’ Local Criminal Rules provide, in part, that “[a]ny pretrial discovery materials provided to the defendant pursuant to this Rule . . . shall not be disseminated to any person or used for any purpose other than in direct relationship to the criminal case to which the discovery pertains.” C.D. Ill. Local Crim. R. 16.2(B)(1). The comments to this Rule note that its application is limited to discovery “provided outside the requirements of Federal Rule of Criminal Procedure 16, applicable statutes, or the Constitution,” and that “disclosure is not prohibited; only physical dissemination is prohibited. A defendant is free to discuss or disclose the contents of discovery with anyone, but may not physically distribute the discovery.”Compare
F. Pretrial motions and records
United States v. McGee, 2007 WL 2570240, 35 Media L. Rep. 2609 (E.D. Wis. Aug. 31, 2007) held that the financial disclosure form defendant submitted in support of his request for court-appointed counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006(A), “is not a judicial document, but rather, is an administrative document,” and as such, news media intervenors had “neither a First Amendment nor common law right of access to such document.” Id. at *8.
See also discussion of motions to unseal search warrant affidavits and wiretap evidence introduced in suppression hearings, above.Compare
G. Trial records
The Seventh Circuit held that a trial court order violated the First Amendment by prohibiting access to documents that identified by name unindicted co-conspirators whose hearsay statements were evidence in the trial. United States v. Ladd, 219 F.3d 701 (7th Cir. 2000). The Court has also held that audiotapes backing up the court reporter’s stenographic record are not judicial records subject to a right of access, absent a showing that the stenographic transcript is inaccurate. Smith v. U.S. Dist. Court Officers, 203 F.3d 440, 442 (7th Cir. 2000); YHWHnewBN v. Board of Educ., 173 Fed. Appx. 518, 520 (7th Cir. 2006).Compare
H. Post-trial records
There is no First Amendment right of access to presentence investigation reports. Common law right of access only to the portions of a presentence investigation report filed in court when need for disclosure outweighs the interests in confidentiality. United States v. Corbitt, 879 F.2d 224 (7th Cir. 1989).
Seventh Circuit Rule 10(f) provides:
The presentence report is part of the record on appeal in every criminal case. The district court should transmit this report under seal, unless it has already been placed in the public record in the district court. If the report is transmitted under seal, the report may not be included in the appendix to the brief or the separate appendix under Fed. R. App. P. 30 and Circuit Rule 30. Counsel of record may review the presentence report at the clerk's office but may not review the probation officer's written comments and any other portion submitted in camera to the trial judge.
See also N.D. Ill. Local Crim. R. 32.1(j) (presentence report “shall not be disclosed to any person or agency without the written permission of the sentencing judge . . . Upon completion of all appellate matters, the report and the recommendation shall be returned to the probation department. Unauthorized copying, dissemination, or disclosure of the contents of the report in violation of these rules may be treated as contempt of court and punished accordingly”); C.D. Ill. Local Crim. R. 32.1(C), 57.2(B)(2), (3); S.D. Ill. Local Crim. R. 32.1(b); S.D. Ind. Local Crim. R. 32-1; E.D. Wis. Local Crim. R. 32; W.D. Wis. Admin. Order No. 337 Re: General Rules for Filing Documents Under Seal.
Noting that “the common law right of access has historically been interpreted as a right to judicial records, which is not the same as an in-court proceeding,” the court in United States v. Sonin, 167 F. Supp. 3d 971, 44 Media L. Rep. 1641 (E.D. Wis. 2016) “exercise[d] its discretion to keep the . . . portion of the sentencing hearings” relating to defendants’ cooperation with the authorities, “and the transcripts of that portion,” under seal. Having found “valid reasons to . . . override [newspaper’s] First Amendment right of access” the court likewise held newspaper did not show a specific need for access to the entire sentencing hearings under the common law, but only “a generalized interest in the outcomes of criminal cases.” Id. at 981-82 (citing Corbitt, 879 F.2d at 226).Compare
I. Appellate records
“Secrecy is fine at the discovery stage, before the material enters the judicial record,” but since documents that “influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality,” any “[i]nformation transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome.” United States v. Foster, 564 F.3d 852, 853 (7th Cir. 2009) (Easterbrook, J., in chambers) (quoting Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002)). Any claim of secrecy on appeal is reviewed independently by the Seventh Circuit. Id. See Sections I.C. and VI.G. (discussing Seventh Cir. Operating Procedure 10).
The constitutional right of access to criminal proceedings extends to appellate briefs; parties “must file public briefs but may add sealed supplements if necessary to discuss in detail materials that they are legally required to keep confidential” (i.e., material that must be kept secret under Fed. R. Crim. P. 6(e)). In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, J., in chambers). Compare A Sealed Case, 890 F.2d 15 (7th Cir. 1989) (in collateral dispute over whether law firm would be allowed to withdraw, mandamus proceedings were “conducted under seal to prevent the disclosure of confidences”; however, opinion was published “to facilitate public scrutiny of our processes.” Krynicki, 983 F.2d at 75).
In affirming denial of defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act (FISA), the Seventh Circuit reviewed the materials in camera, determined that the investigation did not violate FISA, and issued “a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.” United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014).Compare
J. Other criminal court records issues
In O'Keefe v. Chisholm, sealed documents gathered during “John Doe” criminal proceeding in state court were filed under seal in federal court; denying a motion for access, the Court held, as a matter of federalism, that the state, not the federal judiciary, should determine whether, and to what extent, documents should be disclosed, so federal record would remain sealed “as long as documents containing the same information remain sealed in the state-court record.” 769 F.3d 936, 943 (7th Cir. 2014).Compare
V. Access to civil proceedingsCompare
A. In general
“Most of the cases recognizing the presumption of access relate to the right of the public (and press) to attend criminal proceedings and to obtain documents used in criminal cases that the policy reasons for granting public access to criminal proceedings apply to civil cases as well. . . . These policies relate to the public's right to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984). “Though its original inception was in the realm of criminal proceedings, the right of access has since been extended to civil proceedings because the contribution of publicity is just as important there. . . . In fact, mistakes in civil proceedings may be more likely to inflict costs upon third parties, therefore meriting even more scrutiny.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994) (citing Smith v. United States Dist. Court, 956 F.2d 647, 650 (7th Cir. 1992)).
“Secrecy in judicial proceedings is disfavored, as it makes it difficult for the public (including the bar) to understand why a case was brought (and fought) and what exactly was at stake in it and was the outcome proper.” GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 419 (7th Cir. 2014). “People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. . . . What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000); Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
Use of pseudonyms to conceal litigants’ names is also a form of secrecy that the Seventh Circuit disfavors, because it obscures the “grounds and motivations of a decision”; sometimes these concerns are overridden, i.e., in cases where “the plaintiff is a victim of sexual abuse, especially a child victim. . . . Yet even in such cases we've required some evidence of an incremental effect on the victim of disclosure of his or her name in a judicial opinion.” Mueller v. Raemisch, 740 F.3d 1128, 1136 (7th Cir. 2014) (plaintiffs challenging sex offender registration were “not victims of sexual abuse, but perpetrators of it” and the “value of their claim to privacy” could not support “pseudonymous litigation”) (citing Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005) (remanding for determination of whether plaintiff may proceed anonymously in case alleging surreptitious taping of sexual activity, court notes that “[p]laintiff was a minor when the recording occurred but is an adult today”)); see also R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014) (former Mexican law enforcement officer seeking asylum allowed to proceed in court under his initials “to avoid what may be an ongoing risk to his safety”); Duff v. Central Sleep Diagnostics, LLC, 801 F.3d 833, 844 (7th Cir. 2015) (“While secrecy in judicial proceedings is generally disfavored,” district court did not abuse its discretion in receivership proceeding in ordering that names of claimant-fraud victims not be made public).Compare
B. Pre-trial proceedings
Proceedings on pretrial motion that “was designed to (and did) result in the dismissal of claims against several defendants” were presumptively open. In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984); Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 385 (N.D. Ind. 1992) (“The public and press have a ‘presumption of access’ to both criminal and civil court proceedings”; newspaper reporter had right to be present at state court guardianship hearing).
In David K. v. Lane, 839 F. 2d 1265 (7th Cir. 1988), plaintiff inmates claimed the district court “hampered their ability to present evidence” at a preliminary injunction hearing in their civil rights suit because the court refused to close the courtroom and order that no testimony be released without prior court approval, “in order to encourage two white inmates to testify about incidents of homosexual rape by gang members.” Id. at 1276. The Seventh Circuit held the district court did not abuse its discretion in “balanc[ing] open access to courtrooms and First Amendment rights with the danger of retaliation against inmate witnesses” and finding “insufficient reason to compel either media restrictions or closure of the courtroom to the public.” Id. The Court observed that “problems of constitutional dimension relating to prior restraint or restrictions on access to the courtroom could have been avoided without sacrificing the desired anonymity of the witnesses,” i.e., plaintiffs “could have, but did not, request that the court order counsel to refrain from asking inmate witnesses to identify themselves in open court.” Id. The Court further observed that “[t]he single media representative in the courtroom was asked (but not required) to refrain from publishing the names of inmate witnesses. The media representative apparently complied with this request.” Id. n. 7.Compare
“[L]ong embedded in our case law . . . is the strong presumption that all trial proceedings should be subject to scrutiny by the public.” United States v. Ladd, 218 F.3d 701, 703-704 (7th Cir. 2000).
However, “‘the First Amendment question cannot be resolved solely on the label we give the event, i.e., “trial” or otherwise’”; while “there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial.” B.H. v. Ryder, 856 F. Supp. 1285, 1291-92 (N.D. Ill. 1994) , aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735, 2740 (1986)).Compare
D. Post-trial proceedings
In B.H. v. Ryder, 856 F. Supp. 1285 (N.D. Ill. 1994), aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995), a class action by children in DCFS custody claiming violation of their constitutional and statutory rights was settled pursuant to a complex consent decree that called for systemic reforms in the DCFS; the parties and district judge agreed to hold in-chambers hearings in addition to open court status hearings, because of the “difficulties of candidly discussing DCFS compliance in open court with the media hanging on every word. . . . The court found that the parties’ reluctance to make the necessary concessions stemmed from concern about bad press reports.” 49 F.3d at 295-96. When this practice was challenged by intervenors, the district judge concluded that there was no First Amendment right of access to the in-chambers conferences. The Seventh Circuit affirmed: “Because post-consent decree conferences have not historically been public, and because public access would only hinder the judicial process, we conclude that the public has no right of access under Press-Enterprise.” Id. at 301.
The Court observed that Fed. R. Civ. P. 77(b) gives district judges discretion to conduct proceedings in chambers, as long as trial on the merits is held in open court; this “simply articulates the traditional authority of a judge to speak privately with the parties to a suit,” which is “explicitly confirmed” in the Supreme Court’s access decisions. Id. at 298 (citing Richmond Newsp., Inc. v. Virginia, 448 U.S. 555, 598 n. 23 (1980); Globe Newsp. Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982)). Further, “any proceedings on the merits of this case will continue to be held in open court,” and “the public will have access to records of the in-chambers conferences. . . . Thus, because nothing suggests that decisions on the merits will be shielded from public view, we agree that the district judge has discretion under Rule 77(b) to hold in-chambers conferences to discuss the implementation of the consent decree.” Id. at 299.Compare
E. Appellate proceedings
The Seventh Circuit refused a litigant’s request to hold oral argument on appeal “in a courtroom closed to the public and to use only pseudonyms in any opinion.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (citing New York Times Co. v. United States, 403 U.S. 944, 91 S. Ct. 2271 (1971) (denying a motion to close even a portion of the argument in the Pentagon Papers case); Coe v. Cook County, 162 F.3d 491 (7th Cir.1998) (discussing the presumptive inappropriateness of anonymity in litigation)). See also Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir. 1990) (denying request to expel reporter from oral argument).Compare
VI. Access to civil recordsCompare
A. In general
The presumption of access to judicial records extends to civil cases, “because the contribution of publicity is just as important there. . . . In fact, mistakes in civil proceedings may be more likely to inflict costs upon third parties, therefore meriting even more scrutiny.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994). “Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir. 2010) (citing Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir.2002); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000)); see also GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 419-20 (7th Cir. 2014); In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984).Compare
Northern District of Illinois Local Rule 26.2 governs “Sealed Documents” and provides, in part, that “[t]he court may on written motion and for good cause shown enter an order directing that the docket entry for a sealed document show only that a sealed document was filed without any notation indicating its nature. . . .” Id., subd. (f).Compare
C. Discovery materialsCompare
D. Pre-trial motions and records
Access is presumed for filed documents that comprised the basis of a judicial decision. See, e.g., City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014); In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994); In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) (presumption of access applied to proceedings and evidence offered in support of motion that “was designed to (and did) result in the dismissal of claims against several defendants”).
However, “until admitted into the record, material uncovered during pretrial discovery is ordinarily not within the scope of press access.” In re Associated Press, 162 F.3d 503, 510 (7th Cir. 1998) (quoting Grove Fresh, 24 F.3d at 897). In short, “[s]ecrecy is fine at the discovery stage, before the material enters the judicial record. [Seattle Times Co. v. Rhinehart]. But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545 (7th Cir. 2002).
The Court in Bond v. Utreras, 585 F.3d 1041 (7th Cir. 2009) found no statutory, common law, or constitutional right to unfiled discovery. “Unfiled discovery is private, not public” and there is no “‘presumption’ of public access emanating from Rule 26(c)'s ‘good cause’ requirement. There is no such presumption for discovery that is not part of the court file. . . .” Id. at 1066 (journalist lacked standing to intervene for purposes of unsealing discovery in a settled lawsuit since he had no colorable claim to the unfiled documents covered by the protective order). “A party files documents only by submitting them for the court's consideration and use in resolving the dispute before it. . . . A document is filed with the court for public access purposes when, for example, a litigant attaches it as an exhibit to a pleading under Rule 9, a summary judgment motion under Rule 56, or a reply opposing a motion to compel under Rule 37. In these circumstances, litigants furnish the court with documents and ask the court to consider them in resolving a conflict.” United States ex rel. Pool v. NMC, Inc., No. 2:09-cv-66-WTL-WGH, 2014 WL 131211, at *3 (S.D. Ind. Jan. 14, 2014) (following Bond, court holds journalist lacked standing to access documents in settled qui tam case). Compare United States ex rel. Jayakar v. Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *2-3 (N.D. Ind. Sept. 6, 2016), objections overruled, 2017 WL 2570283 (N.D. Ind. June 14, 2017)(distinguishing Bond because intervenors in closed qui tam case did not seek unfiled discovery but documents that “were filed on the docket” and “are judicial records”).
In City of Greenville, plaintiffs filed a motion that appended—but did not rely on or even cite—certain documents that had been produced in discovery under a protective order. The district court expressly announced that it would “not consult them” in ruling on the motion. The Seventh Circuit held the documents were not presumptively subject to disclosure, and that Bond did not intend to suggest that the mere “fact of filing might allow us to presume the judicial reliance necessary to the presumption of public access.” 764 F.3d at 697. “[W]here plaintiffs could not (or would not) explain why they had filed the documents, and the judge did not even look at them,” the public had “no right to access these documents, which cannot conceivably aid the understanding of judicial decisionmaking.” Id. at 698.
The Seventh Circuit’s Bond opinion criticized some of the Court’s prior precedents. “To the extent” the Court’s prior statements “about a ‘presumption of public access to discovery materials’” suggested “the existence of a general public right to access the materials that litigating parties exchange in response to discovery requests,” that “sweep[ed] too broadly.” 585 F.3d at 1073 (quoting Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999)). And “[t]o the extent” prior cases were “premised upon a principle that ‘pre-trial discovery must take place in . . . public unless compelling reasons exist for denying the public access to the proceedings,’ . . . they have been superseded by the 2000 amendment to Rule 5 of the Federal Rules of Civil Procedure,” which reversed the longstanding rule generally requiring discovery to be filed with the court. Id. at 1068 n. 4 (quoting Wilk v. Am. Med. Ass'n, 635 F.2d 1295 (7th Cir. 1980)); see also N.D. Ill. Local R. 26.3 (“discovery materials, including disclosure of expert testimony, shall not be filed with the court. The party serving the discovery materials or taking the deposition shall retain the original and be custodian of it. . . .”).
That said, the Seventh Circuit has disapproved of overbroad protective orders. A protective order “so loose that it amounts . . . to giving each party carte blanche to decide what portions of the record shall be kept secret . . . is invalid.” Citizens First Nat’l Bank, 178 F.3d at 945. “The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it).” Id. While determinations of good cause need not necessarily be made on a “document-by-document basis,” in order for parties “to keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record,” the court must “(1) satisf[y] [itself] that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets and (2) make explicit that either party and any interested member of the public can challenge the secreting of particular documents. Such an order would be a far cry from the standardless, stipulated, permanent, frozen, overbroad blanket order that we have here.” Id. at 946; see also Jepson Inc. v. Makita Elec. Works, 30 F.3d 854, 858 (7th Cir. 1994) (“if good cause is not shown, the discovery materials in question should not receive judicial protection”). Compare Wrice v. Burge, No. 14 C 5934, 2016 WL 6962838, at *10-11 (N.D. Ill. Nov. 29, 2016) (“Seattle Times makes clear that non-public information produced in discovery that may be ‘damaging to reputation and privacy’ is subject to a court’s restrictive powers”; granting protective order in wrongful prosecution case barring defendant police officers from disseminating discovery materials obtained from by non-party journalism professor and students, court noted that defendants’ intent was to “attack their personal and professional reputations, . . . invade their privacy, and cause them embarrassment”).
In Saunders v. City of Chicago, No. 12-cv-9158, 2017 WL 3082036 (N.D. Ill. July 19, 2017), the plaintiffs in a wrongful conviction case moved to unseal an FBI “302 report” of an interview with a key witness. The district judge affirmed a magistrate’s ruling denying plaintiffs’ motion, holding the magistrate had “legitimate concerns” about the parties’ fair trial rights in another case that was going to trial imminently, which concerns were “compounded by the readily available inaccurate media coverage” about the 302 report. Id. at *4. However, the court granted plaintiffs’ renewed motion to unseal, finding “important circumstances have changed,” triggering a presumption of access—namely, it was clear that the 302 report would “affect or underpin several of Court’s upcoming merits and evidentiary rulings,” and that the other case had settled. Id. Finding insufficient good cause for the 302 report to remain under seal, the court concluded that “[t]here is undoubtedly a significant public interest in exposing police misconduct” and the “only reason” defendants presented for overriding those concerns was the “risk of unfair and inaccurate media attention”—a “risk” that “is undoubtedly present whenever documents are unsealed. If the possibility that a newspaper might get something wrong was sufficient to satisfy ‘good cause,’ the presumption of public access would be rebutted in every case. The relevant issue is not whether there is some nebulous risk of inaccurate media attention, but how great the risk is that such attention will taint the jury pool. Now that . . . trial is no longer imminent [in the other case] and no trial date has been set in these federal cases, the Court believes the balance has tipped in favor of disclosure.” Id. at *5.Compare
E. Trial records
The Seventh Circuit recognizes a First Amendment and common law right to access records submitted into evidence in open court. See In re Continental Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).
“Once the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstance to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.” In re Continental Illinois, 732 F.2d at 1313 (quoting United States v. Myers, 635 F.2d 945, 952 (2d Cir.1980)) (where “courtroom was open to the public, the witnesses repeatedly referred to the contents of the Report and excerpts from the Report were quoted by counsel in open court,” litigant’s impression that protective order “would shield the Report from the presumption of access, even when it was introduced into evidence and relied on to make a decision” was “legally incorrect”); see also Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992).
The Seventh Circuit has rejected the argument that “only items of evidence are subject to the common law right of access,” noting that the cases “speak of judicial records, not items in evidence” and that “judicial records include transcripts of proceedings, everything in the record, including items not admitted into evidence.” Smith v. U.S. Dist. Ct., 956 F.3d 647 (7th Cir. 1992) (access right applied to memorandum by clerk of court where it was read in part in open court and relied upon by magistrate); accord Carlson v. United States, 837 F.3d 753, 760 (7th Cir. 2016).Compare
F. Settlement records
When a district court sealed documents relating to the litigants’ settlement pursuant to their request, a newspaper's “presumptive right to access was implicated, and [it] should have been allowed to intervene for the limited purpose of challenging the district court's order.” Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000) (remanding for determination of access right). On appeal after remand, the Seventh Circuit held that the newspaper was entitled to a copy of the settlement agreement that was in the court files under seal. The court observed that “[o]rdinarily . . ., settlement agreements, like most arbitration awards and discovery materials, are private documents . . ., not judicial records . . ., because the parties will file a stipulation of dismissal pursuant to which the suit will be dismissed without further ado or court action,” and the settlement agreement “will then have the identical status as any other private contract.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002).
However, in Jessup, the settlement agreement “was submitted to and approved by the judge and a copy deposited in the files of the court and then ordered sealed. . . . Whatever the rationale for the judge's participation in the making of the settlement in this case, the fact and consequences of his participation are public acts. . . .The public has an interest in knowing what terms of settlement a federal judge would approve and perhaps therefore nudge the parties to agree to.” Id. at 929. “[T]he district court's files now contain a document that reflects input by a federal judge, and so the document is presumptively a public document. . . . [N]either the magistrate judge nor any of the parties has given us any reason to think the presumption might be rebutted in this case.” Id. at 929-30.
“If though it is part of the judicial record the settlement is made without any court action,” i.e., approval, “there will rarely be a good reason to require that its terms be made public, because making them public would not reveal anything about judicial activity.” Goesel v. Boley Int’l (H.K.) Ltd., 738 F.3d 831, 834 (7th Cir. 2013) (Posner, J., in chambers). “[F]or the most part settlement terms are of potential public interest only when judicial approval of the terms is required, or they become an issue in a subsequent lawsuit, or the settlement is sought to be enforced. . . . In all such cases the presumption of a right of public access to court documents should apply.” Id. CompareHadley v. AstraZeneca Pharmaceuticals PLC, No. 18-cv-1068-JPG-DGW, 2018 WL 4491184, *3 (S.D. Ill. Sept. 19, 2018) (where court’s decision did “not in any way rest on the content of” a Settlement/Release proffered by party, “the public’s interest in access to that document is negligible since it would add little or nothing to the public’s understanding of the Court’s decision in this case. Therefore, the parties’ interest in confidentiality is greater than the public’s interest in access to the document, and the document should remain under seal”).
“Calling a settlement confidential does not make it a trade secret, any more than calling an executive's salary confidential would require a judge to close proceedings if a dispute erupted about payment (or termination). Many a litigant would prefer that the subject of the case . . . be kept from the curious (including its business rivals and customers), but the tradition that litigation is open to the public is of very long standing.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (in dispute over breach of settlement agreement, blanket sealing of record and closure of proceedings was improper); accord Herrnreiter v. Chicago Housing Auth., 281 F.3d 634, 637 (7th Cir. 2002).Compare
G. Post-trial records
Even though in-chambers hearings on implementation of institutional reform consent decree would not be open to the press and public, “any proceedings on the merits of this case will continue to be held in open court,” and “the public will have access to records of the in-chambers conferences. . . .” B.H. v. McDonald, 49 F.3d 294, 299 (7th Cir. 1995).Compare
H. Appellate records
“Information transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome. Agreements that were appropriate at the discovery stage are no longer appropriate for the few documents that determine the resolution of an appeal, so any claim of secrecy must be reviewed independently in this court.” Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545-46 (7th Cir. 2002) (citing Seventh Circuit Operating Procedure 10). “We recognize only three classes of material subject to seal: trade secrets, information covered by a recognized privilege, and information required by statute to be maintained in confidence. . . . If the material in question falls into one of these three categories, then the two competing interests to be weighed by the court are the moving party's interest in privacy and the public's interest in transparency.” United States v. Sanford-Brown, Ltd., 788 F.3d 696, 712 (7th Cir. 2015), vacated on other grounds, 136 S. Ct. 2506 (2016), opinion reinstated in relevant part on remand, 840 F.3d 445 (7th Cir. 2016) (citing Baxter, at 546). The public's interest in the judicial record is “especially acute” where “the government has subsidized the good or service underlying the litigation from the public fisc” and a party “subsidized by the public fisc and that seeks to seal portions of the record must satisfy a higher burden. . . .” Id. at 712-13.
The Seventh Circuit will “deny outright any motion under Operating Procedure 10 that does not analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations. Motions that represent serious efforts to apply the governing rules will be entertained favorably, and counsel will be offered the opportunity to repair shortcomings. Motions that simply assert a conclusion without the required reasoning, however, have no prospect of success.” Baxter, 297 F.3d at 548; see also Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (refusing request to seal all briefs on appeal and use only pseudonyms in any opinion); In re Krynicki, 983 F.2d 74 (7th Cir. 1992) (Easterbrook, J., in chambers) (denying request to seal briefs on appeal); Pepsico Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995) (denying request to seal briefs on appeal and portions of district court opinion). Compare Sanford-Brown, Ltd., 788 F.3d at 713 (where motion concerning certain exhibits explained why each document “entail[ed] proprietary trade secrets, and provide[d] justification for why they should remain sealed,” party “satisfied its high burden”).Compare
I. Other civil court records issues
See, e.g., O'Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014) (sealed documents gathered during “John Doe” criminal proceeding in state court were filed under seal in federal court; denying motion for access, Court held, as a matter of federalism, the state, not the federal judiciary, should determine whether, and to what extent, documents should be disclosed, so federal record would remain sealed “as long as documents containing the same information remain sealed in the state-court record”); GEA Group AG v. Flex-N-Gate Corp., 740 F.3d 411, 420 (7th Cir. 2014) (rule that parties to a German arbitration may not disclose evidence presented in the arbitration “may be a good rule or a bad rule, but it is a rule that United States courts should respect as a matter of comity”; granting motion to seal); Courthouse News Service v. Brown, 908 F.3d 1063 (7th Cir. 2018) (abstaining, on federalism grounds, from adjudication of news service’s § 1983 action against county court clerk, alleging that clerk’s failure to immediately release newly filed complaints before administrative processing violated First Amendment right of access).Compare
VII. Jury and grand jury accessCompare
A. Access to voir dire
The Court follows Press Enterprise I. See United States v. Peters, 754 F.2d 753 (7th Cir. 1985). See also United States v. Warner, 396 F. Supp. 2d 924, 927-29 (N.D. Ill. 2005).Compare
B. Juror identities, questionnaires and other records
“[N]o one contends (or should contend) that jurors' names always must be released. Anonymous juries are permissible when the jurors' safety would be jeopardized by public knowledge, or the defendant has attempted to bribe or intimidate witnesses or jurors. . . . The right question is not whether names may be kept secret, or disclosure deferred, but what justifies such a decision.” United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010); see also United States v. Harris, 763 F.3d 881, 886 (7th Cir. 2014) (“To be sure, both ‘confidential’ and ‘anonymous’ juries infringe on the public nature of trials and should therefore only be used sparingly and after sound consideration that is articulated by the district court on the record”).
Remanding for further consideration of whether the common law presumption of access had been overcome, the Blagojevich Court observed that, “[a]lthough deferred release of jurors' names requires less justification than does anonymity . . . a judge must find some unusual risk to justify keeping jurors' names confidential; it is not enough to point to possibilities that are present in every criminal prosecution. The great public interest in this prosecution may indeed create exceptional risks,” but this had to be “explored on the record.” 612 F.3d at 564-65.
On remand in Blagojevich, the district judge held a hearing and determined that “[t]he amount of media attention in this case” and other “unusual risks associated with releasing the jurors' names during trial overcome the presumption of disclosure,” and that “the jurors' names should not be made public prior to the entry of a verdict.” United States v. Blagojevich, 743 F.Supp.2d 794, 806, 808 (N.D. Ill. 2010). See also United States v. Black, 483 F.Supp.2d 618 (N.D. Ill. 2007) (no First Amendment right of access to jury names during pendency of trial; releasing the names would violate the defendant’s Sixth Amendment rights given the “intense media scrutiny surrounding th[e] case”); United States v. Calabrese, 515 F.Supp.2d 880 (N.D. Ill. 2007) (denying newspaper access to jury names, citing concern for jurors’ safety); United States v. Warner, 396 F.Supp.2d 924, 928-29 (N.D. Ill. 2005) (court would conduct voir dire with the media present but would “instruct the press not to disclose the jurors' identities until the end of trial; in the court's experience, this is any event the media's standard practice”); In re Indianapolis Newspapers, Inc., 837 F. Supp. 956 (S.D. Ind. 1992) (disclosing juror names a week after verdict).
In the Blagojevich trial, the district judge also informed prospective jurors that he would destroy their questionnaires after trial, in the interest of complete candor. However, in a subsequent trial in the case, the judge changed his opinion: “I believe that I can secure candor by allowing jurors to object to release of any part of the questionnaire that would subject them to unjustified public embarrassment or harassment. . . . I now believe that total destruction of the questionnaires is unnecessary to achieve an effective voir dire and an effective jury selection process.” United States v. Blagojevich, No. 08 CR 888, 2011 WL 812116, at *3 (N.D. Ill. Feb. 28, 2011).
The Southern District of Illinois’ Local Rules provide that in a “widely publicized or sensational case, the Court, on motion of either party or on its own motion,” may issue an order “that the names and addresses of the jurors or prospective jurors not be publicly released, except as required by statute, and that no photographs be taken or sketch made of any juror within the environs of the Court.” See S.D. Ill. Local R. 83.6(c), (d)(4).Compare
C. Grand jury proceedings and records
“Several courts have . . . held that the first amendment right of access does not comprehend grand jury proceedings, since grand juries have traditionally conducted their investigations in closed hearings, and secrecy is necessary in order for the grand jury to carry out its investigative function.” United States v. Corbitt, 879 F.2d 224, 237 n. 15 (7th Cir. 1989) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 106 S. Ct. 2735, 2741 (1986) (dictum; “there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that ‘the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings’”)).
Federal Rule of Criminal Procedure 6(e) “codifies the centuries-old requirement that grand jury proceedings be kept secret.” In re Eye Care Physicians of Am., 100 F.3d 514, 518 (7th Cir. 1996) (citing Matter of Grand Jury Proceedings, 942 F.2d 1195, 1198 (7th Cir. 1991)). “Our judicial system has recognized that the proper functioning of grand jury proceedings depends upon their absolute secrecy.” Id.; Lucas v. Turner, 725 F.2d 1095, 1100 (7th Cir. 1984). See also N.D. Ind. Local. Crim. R. 6-1 (procedures for grand juries; “[w]hile a grand jury is in session, no one may be in the hall leading to the rooms or areas used by the grand jury or anyplace where witnesses before the grand jury can be seen or heard”); S.D. Ind. Local Crim. R. 10-1.
One seeking disclosure of grand jury proceedings must demonstrate “‘compelling necessity’ for the material,” even when the grand jury has concluded its operations. In re Eye Care Physicians, 100 F.3d at 518 (quoting Hernly v. United States, 832 F.2d 980, 983-84 (7th Cir. 1987)); Lucas, 725 F.2d at 1107.
“Yet the rule of grand jury secrecy is not absolute. For instance, the secrecy requirement does not apply to grand jury witnesses, who are permitted to publicly disclose the questions they were asked and the answers they gave.” Carlson v. United States, 109 F.Supp.3d 1025, 1028-29 (N.D. Ill. 2015), aff’d, 837 F.3d 753 (7th Cir. 2016) (citing Fed. R. Crim. P. 6(e)(2)); see also Worrell Newspapers of lnd., Inc. v. Westhafer, 739 F. 2d 1219, 1223 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985) (“[T]he secrecy provision in Rule 6(e) applies, by its terms, only to individuals who are privy to the information contained in a sealed document by virtue of their positions in the criminal justice system”).
“The party seeking disclosure of grand jury materials must show a ‘compelling necessity’ or ‘particularized need’ for the grand jury materials; where an appropriate showing has been made, the district court must take care to disclose materials ‘discretely and limitedly.’” Corbitt, 879 F.2d at 239 n. 17.
In Carlson, the court unsealed transcripts of testimony from a 1942 grand jury investigation of newspaper's alleged Espionage Act violations during World War II ; author and historical organizations sought disclosure for scholarly purposes, the government identified no specific reason that release would threaten national security or otherwise cause harm, and no witnesses or other third parties had come forward to express concerns about release. “Because grand-jury transcripts are, in their very nature, judicial documents (just as a transcript of a trial would be), there is no need for them to become part of the judicial proceeding through admission into evidence” in order to be subject to the access right asserted by plaintiff. Carlson v. United States, 837 F.3d at 760 The court held that “the disclosure of sealed grand jury materials is ‘committed to the discretion of the trial judge,’” and this inherent power was not abrogated by the Federal Rules of Criminal Procedure (in particular Rule 6(e)). Id. at 761-67.Compare
D. Interviewing jurors
In United States v. Blagojevich, No. 08 CR 888, 2011 WL 812116 (N.D. Ill. Feb. 28, 2011), the district judge presiding over the high-profile trial of Illinois Governor Blagojevich ordered that the names of jurors would not be released until the next calendar day after the verdict was announced; the judge observed that in a prior trial, “[m]ost jurors reported that media were waiting outside their homes before they arrived home” and that “[o]ne juror who refused to give an interview was subjected to several hours of phone calls, and someone from the media knocked on her door at regular intervals until almost midnight.” Id. at *1. The court agreed to provide a “courthouse space for jurors who are willing to meet with the press to do so immediately after the verdict,” but observed that in the prior trial “not one juror was willing to meet with the media immediately after the verdict.” Id. at *1 n. 1.Compare
VIII. Proceedings involving minorsCompare
The Seventh Circuit has observed that under the Illinois Juvenile Court Act, law enforcement and court records relating to juveniles are sealed, 705 ILCS 405/1–7, –8, “but that doesn’t preclude the victim of a juvenile crime, or anyone else for that matter (us judges for example), from talking about the crime, whether privately or in public. Indeed, we know from the Pentagon Papers case . . . and from many cases since, that often the First Amendment is held to protect a disclosure of state secrets that violates state law—not to mention obnoxious invasions of personal privacy. . . .” Gschwind v. Heiden, 692 F.3d 844, 847 (7th Cir. 2012) (citing Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)).Compare
C. Other proceedings involving minors
“Juvenile criminal matters must be filed conventionally and under seal unless, after hearing, the Court Rules that the juvenile will be tried as an adult.” C.D. Ill. Local Crim. R. 49.4(B)(3). See also S.D. Ind. Local Crim. Rule 49.1-2(c)(5) (“documents filed in juvenile proceedings” “may be filed under seal without motion or further order of the court, provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest”). Compare Avina v. Bohlen, 2015 WL 1756774, at *5 (E.D. Wis. April 16, 2015) (in parent/guardian’s civil rights action for injuries to his minor son, court rejected plaintiff’s request for “sealing of all court proceedings in which the minor’s medical and mental health records are presented” finding, “on the current record,” request was unacceptable).Compare
D. Prohibitions on photographing or identifying juveniles
“Federal Rule of Civil Procedure 5.2 provides, in relevant part, that ‘in an electronic or paper filing with the court that contains . . . the name of an individual known to be a minor, . . . a party or nonparty making the filing may include only . . . the minor’s initials.’” P.D. ex rel. C.D. v. Carroll Consolidated School Corp., 820 F.Supp.2d 907, 908 (N.D. Ind. 2011) (quoting Fed. R. Civ. P. 5.2(a)(3)). “An important factor in favor of anonymity is whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age.” Id. at 909; see Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir.1997) (“fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses”).
In a First Amendment challenge to public high school graduation ceremonies being held in a church, the Seventh Circuit held the parents of the minor plaintiffs could proceed anonymously. “Identifying these adult plaintiffs also would expose the identities of their children,” and “[b]ecause the subject matter of the suit frequently has a tendency to inflame unreasonably some individuals . . . a risk to children is particularly compelling.” Doe ex rel. Doe v. Elmbrook School Dist., 658 F.3d 710, 724 (7th Cir. 2011), vacated on other grounds on rehearing en banc, 687 F.3d 840 (7th Cir. 2012); accord A.B. ex rel. V.S. v. Meyer, 2015 WL 4545872 (N.D. Ind. July 28, 2015); compare P.D. ex rel. C.D. v. Carroll Consolidated School Corp., 820 F. Supp. 2d at 909-10 (rejecting argument that revealing minor plaintiff’s parents’ names “violates the intent of Rule 5.2” because it would allow the minor to be easily identified; plaintiff “has not provided enough information for the Court to conclude that there is good cause” to keep the names hidden under Seventh Circuit’s rigorous standard for anonymous litigation).
Furthermore, in criminal cases, pseudonyms may be required pursuant to the Victims’ Protection and Rights Act, 18 U.S.C. § 3509(d)(3)(A); see United States v. Troup, 2012 WL 3818242, at *3 (N.D. Ind. Aug. 31, 2012) (ordering use of pseudonyms for minor victim and witnesses in child pornography prosecution where “[i]t is easy to see how the disclosure of a child’s name as the victim of a sex offense can be ‘detrimental to the child,’ and the same goes for the two child witnesses who were not victims. The factual nature of this case makes it likely, even probable, that the children involved will be subject to harassment by their peers if their names are publicly associated with the case”).Compare
E. Minor testimony in non-juvenile courts
In U.S. ex rel. Morgan v. Lane, 705 F. Supp. 410 (N.D. Ill. 1989), habeas corpus petitioner convicted of raping a minor argued that excluding members of the general public from the courtroom during testimony of the juvenile witnesses violated his Sixth Amendment right to a public trial. The district court rejected that argument, holding closure was consistent with the test articulated in Waller v. Georgia, 467 U.S. 39 (1984). “[S]afeguarding the physical and psychological well-being of a minor testifying in a rape case is a compelling state interest,” and “[t]he Seventh Circuit has stated that the exclusion of spectators during the testimony of an alleged rape victim is a frequent and accepted practice when the details of such crime must be related by a woman.” 705 F. Supp. at 414 (citing United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977)). “[P]artial closure, limited to the testimony of the juvenile witnesses, was not broader than necessary,” and “[t]he trial court further lessened the impact of the closure by allowing interested persons, such as family and counselors, and the media to remain.” Id.
Furthermore, the Victims’ Protection and Rights Act provides:
When a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child’s inability to effectively communicate. Such an order shall be narrowly tailored to serve the Government’s specific compelling interest.
18 U.S.C. 3509(e).
“No case has specifically defined what constitutes ‘substantial psychological harm,’ but before the statute was enacted, the Supreme Court suggested that a district court should consider ‘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’ when determining whether to close the courtroom.” United States v. Troup, 2012 WL 3818242, at *4 (N.D. Ind. Aug. 31, 2012) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 (1982)) (holding government “discharged its burden with respect to the one child victim/witness,” but not with respect to the non-victim child witnesses).Compare
IX. Special proceedingsCompare
A. Tribal Courts in the jurisdiction
C. Competency and commitment proceedings
Even though information disclosed in state court guardianship proceeding was “claimed to be subject to the physician-patient privilege,” the U.S. District Court for the Northern District of Indiana held it was “directly relevant to the resolution of the guardianship issue” before the court, and “the factors which might favor preservation of the physician-patient privilege are outweighed by those which favor the First Amendment disclosure.” Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 387 (N.D. Ind. 1992) (granting injunctive relief for newspaper).Compare
D. Attorney and judicial discipline
Under the Northern District of Indiana’s Local Rules regarding grievance proceedings on allegations of attorney misconduct, “[a] written allegation of attorney misconduct must be filed under seal and remain sealed until the committee determines that there is a substantial question of misconduct.” N.D. Ind. Local R. 83-6.4(d). “The committee’s investigations, deliberations, hearings, determinations, and other proceedings—including all materials presented to the committee—are confidential,” and while its written report to the chief judge “is a public record . . . it must be—and remain—sealed if the committee recommends a private reprimand.” N.D. Ind. Local R. 83-6.5(f). See also N.D. Ill. Local R. 83.25(e) (attorney discipline proceedings before court’s Executive Committee “shall be confidential, except that the Committee may in the interests of justice and on such terms it deems appropriate” authorize the clerk to release information; when a proceeding is referred to a judge, the record and hearings shall be public, unless the judge for good cause orders otherwise, and final orders in disciplinary matters “shall be a matter of public record”). Cf. Oszust v. Town of St. John, 212 F.Supp.3d 770, 779 (N.D. Ind. 2016) (“courts have found no First Amendment right of access to police disciplinary hearings”).
In Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830 (7th Cir. 2009), the Seventh Circuit rejected plaintiffs’ assertion that an affidavit submitted in support of their motion to set aside dismissal for “excusable neglect” should continue to be sealed on appeal because it “would potentially cause embarrassment and affect [counsel's] personal and professional reputation by disclosing personal matters"; confidentiality was not “justified by any statute or privilege,” and “[j]ust what the ‘neglect’ entailed, and why it was ‘excusable,’ are questions in which the public has a legitimate interest when they underlie a judicial decision.” Id. at 831.Compare
E. Immigration proceedings
F. Other proceedingsCompare
X. Restrictions on participants in litigationCompare
A. Media standing to challenge third-party gag orders
Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009) held that the only First Amendment concern raised by a protective order limiting disclosure of unfiled discovery is the effect such an order may have on a litigant's free-expression rights, which are limited where the information is only made available in discovery. Id. at 1077 (journalist had no standing based on derivative First Amendment right to receive information where parties agreed to protective order and thus there was no “willing speaker”). However, the Court acknowledged that “[m]edia challenges to trial-court gag orders have been allowed where the orders interfere with the right to receive information from parties and their attorneys who wish to disseminate it.” Id. (citing In re Dow Jones & Co., 842 F.2d 603 (2d Cir. 1988); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975)); see also Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985) (hearing press challenge to Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and authorizing contempt penalty for such disclosure).Compare
B. Gag orders on the press
In a challenge by a member of the press, the Seventh Circuit held the First Amendment was violated by Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized contempt penalty for such disclosure. Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985).Compare
C. Gag orders on participants
“Judicial restraints on extrajudicial comments of lawyers about a pending proceeding—commonly referred to as ‘gag orders’—must be evaluated in the context of First Amendment jurisprudence. . . . Courts in this circuit require a showing of a ‘clear and present danger’ or a ‘serious and imminent threat’ to a fair a trial before restraining litigant speech.” Bianchi v. Tonigan, 2012 WL 5966543, at *6 n. 9 (N.D. Ill. Nov. 28, 2012) (holding movant “fails to meet the rigorous standard for a gag order”) (citing Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975)).
Chase v. Robson held a district judge’s order that all counsel and every defendant make no statements regarding the case was, “as written and as applied . . . unconstitutionally overbroad” and was not “drawn narrowly so as not to prohibit speech which will not have an effect on the fair administration of justice along with speech which will have such an effect.” 435 F.2d at 1061. Bauer likewise held a local district court rule and ABA disciplinary rule relating to attorneys’ extrajudicial comments on criminal litigation were overbroad in imposing a standard of “reasonable likelihood of interference with a fair trial,” and that the proper standard should be “serious and imminent threat of interference. . . .” 522 F.2d at 249-52. See also In re Oliver, 470 F. 2d 15 (7th Cir. 1972); N.D. Ind. Local Crim. R. 53-2(a), (b) (attorneys and law enforcement “must not release, or authorize the release of, facts or opinions about the criminal case if: (1) a reasonable person would expect them to be disseminated by any means of public communication; and (2) the dissemination would pose a serious and imminent threat of interference with the fair administration of justice”). But see S.D. Ill. Local R. 83.6(a) (“reasonable likelihood” of interference).
Invalidating under the First Amendment an Indiana statute that specified “no person” may disclose the existence of a sealed indictment prior to arrest or bringing of defendant into court custody, the Seventh Circuit noted that, unlike the invalidated Indiana statute, Federal Rule of Criminal Procedure 6(e) “applies, by its terms, only to individuals who are privy to the information contained in a sealed document by virtue of their positions in the criminal justice system,” and that “if Rule 6(e) was construed to apply to witnesses who testify before grand juries it would violate the First Amendment.” Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219, 1222-23 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985); see also S.D. Ill. Local R. 83.6(b) (“No personnel connected in any way with this Court or its operation, including, among others, marshals, deputy marshals, deputy clerks, bailiffs, secretaries, and court reporters, shall disclose to any person, without specific authorization by the presiding judge, any information relating to a pending criminal or civil case that is not a part of the public record. This prohibition applies specifically to the divulgence of information concerning arguments and hearings held in chambers or otherwise outside the presence of the public”).
However, the Court rejected an inmate’s First Amendment challenge to the Federal Bureau of Prisons’ policy barring death row/Special Confinement Unit inmates from giving face-to-face interviews to the media; “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” Hammer v. Ashcroft, 570 F.3d 798, 799 (7th Cir. 2009) (en banc) (citing Pell v. Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974)); see also Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 946 (7th Cir. 2015) (First Amendment "does not guarantee the press a constitutional right of special access to information not available to the public generally") (quoting Pell v. Procunier, 417 U.S. at 833).Compare
D. Interviewing judges
In Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005), the Seventh Circuit held that a state court judge should have recused himself after he was mentioned and quoted in a newspaper article as having written a memorandum disapproving of the release of indigent prisoners on bail, which used the example of a defendant over whose case the judge was presiding. The memorandum and the judge's “contacts with the newspaper were extrajudicial activities vis-a-vis” the defendant’s case, and showed actual bias. Id. at 961-62. Compare United States v. Board of Sch. Com'rs, 503 F. 2d , 80-81 (7th Cir. 1974) (district judge presiding over school desegregation case did not have to be recused based on published interview “which allegedly evinced an attitude of prejudgment on the liability of the state officials”; Court found judge’s remarks were “derived from proceedings had before the court, and not on attitudes or conceptions that were formed outside the courtroom” and did not constitute disqualifying bias).Compare
XI. Other issuesCompare
A. Interests often cited in opposing a presumption of access
“When there is a compelling interest in secrecy, as in the case of trade secrets, the identity of informers, and the privacy of children, portions and in extreme cases the entirety of a trial record can be sealed. . . . The interest in secrecy is weighed against the competing interests case by case.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002).
“[R]equests to seal proceedings in order to implement the parties' preference for seclusion . . . have been uniformly rejected.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). See, e.g., In re Specht, 622 F.3d 697, 701 (7th Cir. 2010) (indemnity agreement and other documents that were not claimed to be trade secrets would not be kept under seal where they were submitted to court in response to motion); Central Nat'l Bank v. United States Dep't of Treasury, 912 F.2d 897, 900 (7th Cir. 1990) (concern of bank challenging comptroller’s findings “that public knowledge of these things may impair its standing with its customers” would not support secrecy; “the bank's interest in keeping the bad news about its management secret is meager in relation to the claims of a free press for access to governmental proceedings”; court noted, in dicta, that case might be different if comptroller was asking for secrecy of disciplinary proceedings for fear of bank "runs"); In re Continental Illinois Sec. Litig., 732 F.2d 1302, 1314-15 (7th Cir. 1984) (even if special litigation committee report prepared for litigation was protected against disclosure at the time of preparation by attorney-client privilege and work product doctrine, those privileges were waived when the report was used in litigation; “there is a strong presumption that confidentiality must be surrendered”); Milam v. Dominick's Finer Foods, Inc., 567 F.3d 830, 831 (7th Cir. 2009) (refusing to seal affidavit submitted in support of motion to set aside dismissal for “excusable neglect” merely because it “would potentially cause embarrassment and affect [counsel's] personal and professional reputation by disclosing personal matters”; “[j]ust what the ‘neglect’ entailed, and why it was ‘excusable,’ are questions in which the public has a legitimate interest when they underlie a judicial decision”). Compare Methodist Hosps. v. Sullivan, 91 F.3d 1026, 1031 (7th Cir. 1996) (“Judicial proceedings are presumptively open, but particular information may be withheld. Personal income is among the categories that can be withheld. Disclosure of tax returns is highly restricted . . . , and we do not think that the disclosure of the same information becomes compulsory whenever a state decides to put it in a brief. Its inclusion in the state's memorandum is gratuitous”; ordering redaction of confidential material).
“In civil litigation only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret on appeal.” Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 546 (7th Cir. 2002) (denying joint motion to seal that simply asserted confidentiality agreement and “that these are commercial documents”) KM Enterps., Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718, 734 (7th Cir. 2013) (granting request to seal appellate record documents or return them to district court “to protect sensitive, confidential pricing and customer information”; “narrow, specific requests [to seal appellate record] will be granted when based on articulated, reasonable concerns for confidentiality”).
Even where genuine trade secrets are at issue, the Seventh Circuit will not seal an entire opinion or brief because of trade secret information; it is only inclined to redact the information specifically identifying trade secrets themselves. See Pepsico Inc. v. Redmond, 46 F.3d 29 (7th Cir. 1995). “Litigation about trade secrets regularly is conducted in public; the district court seals only the secrets (and writes an opinion omitting secret details); no one would dream of saying that every dispute about trade secrets must be litigated in private. Even disputes about claims of national security are litigated in the open.” Union Oil, 220 F.3d at 567.
In evaluating claims for confidentiality in criminal proceedings, the Seventh Circuit has considered factors such as the “the privacy interests of the defendant, the defendant's family and the crime victim” and the government’s interest in the secrecy of information related to ongoing criminal investigations, or derived from grand jury proceedings. United States v. Corbitt, 879 F.2d 224, 229-30 (7th Cir. 1989) (criminal defendant “has a strong interest in maintaining the confidentiality of his or her presentence report” which often involves “a broad-ranging inquiry into a defendant's private life, not limited by traditional rules of evidence”). Compare United States v. Ladd, 218 F.3d 701, 704, 706 (7th Cir. 2000) (“The source of evidence admitted at trial and the circumstances surrounding its admittance are important components of the judicial proceedings and crucial to an assessment of the fairness and the integrity of the judicial proceedings”; because hearsay statements of unindicted coconspirators were admitted into evidence, “the public interest in disclosure [of their identities] outweighs the privacy interests of the coconspirators”).
In affirming denial of a motion to unseal a search warrant affidavit, the Court cited the “potential adverse consequences” of access, including that “the secrecy of grand jury proceedings would be violated,” and “disclosure of the affidavits might very likely impair the ongoing criminal investigation.” In re Eye Care Physicians of Am., 100 F.3d 514, 518-19 (7th Cir. 1996). However, in holding the First Amendment was violated by an Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized a contempt penalty for such disclosure, the Court observed that “infringement upon First Amendment freedoms may be justified, but only in exceptional cases: when the country is at war, when a sovereign seeks to protect the primary requirements of decency by prohibiting obscenity, and when the security of community life is threatened by incitements to acts of violence and the overthrow by force of an orderly government,” and found that “Indiana's asserted interest does not reach the level of these concerns.” Worrell Newspapers of lnd., Inc. v. Westhafer, 739 F.2d 1219, 1223-24 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985). The Court rejected the State’s argument that “the possible flight of indictees who have read about their indictments in the newspaper constitutes a ‘clear and present danger’ to the State's interest in apprehending criminals,” finding “the State's fears are remote and speculative” and unsupported by evidence. Id. at 1225. Compare Munster Med. Research Found., Inc., No. 2:08-CV-350-TLS-PRC, 2016 WL 4607869, at *4 (N.D. Ind. Sept. 6, 2016), objections overruled, 2017 WL 2570283 (N.D. Ind. June 14, 2017) (in deciding whether to unseal documents filed in a qui tam action, courts have found unsealing improper where it “would disclose confidential investigative techniques, reveal information that would jeopardize an ongoing investigation, or injure non-parties,” or other “sensitive information”; held, “[t]he investigation in this case is complete, and there is no indication that an ongoing investigation would be jeopardized if the Court lifts the seal on the documents still at issue,” but court would “consider injury to non-parties in making its decision, especially regarding patient information protected under HIPAA”).Compare
B. Cameras and other technology in the courtroom
Seventh Circuit Rule 55 (“Prohibition of Photographs and Broadcasts”) states:
The taking of photographs in, or radio or television broadcasting from the courtroom or any other place on the 27th floor or judges' chambers or corridors adjacent thereto on the 26th floor of the Federal Courthouse located at 219 South Dearborn Street, Chicago, Illinois, without permission of the court, is prohibited.
The Seventh Circuit recently added Operating Procedure 11 (“Video-Recording Policy”), which outlines the procedures for submitting requests for video-recording of oral argument. Requests must be submitted to the Clerk “not later than one week before oral argument”; the parties may comment or object; and the assigned panel has “sole discretion” whether to allow video-recording.
Northern District of Illinois Local Rule 83.1 governs limitations on use of court facilities, and provides:
No Cameras or Recorders. . . . [T]he taking of photographs, radio and television broadcasting or taping in the court environs during the progress of or in connection with judicial proceedings including proceedings before a United States magistrate judge, whether or not court is actually in session, is prohibited.
N.D. Ill. Local R. 83.1(c).
Southern District of Illinois Local Rule 83.5 provides that “[u]nless otherwise authorized by Order of this Court, the taking of photographs, sound recordings (except by the official court reporters in the performance of their duties), and broadcasting by radio, television, or other means, in connection with any judicial proceeding on or from the same floor on which a courtroom is located is prohibited.” Northern District of Indiana Local Rule 83-3(a) likewise prohibits taking photographs, making sound recordings, and broadcasting (by “radio, television, or any other means”), “anywhere on a floor where a courtroom, jury assembly room, grand-jury room, or clerk’s office is located when they are done in connection with a judicial proceeding. . . .” See also S.D. Ind. Local Rule 83-3(a); E.D. Wis. Gen. Local R. 83(a).
Central District of Illinois Local Civil Rule 83.7 provides that “no electronic devices will be permitted into the courthouse” subject to certain limited exceptions; “Electronic Devices” is broadly defined as including cameras, video recorders, audio recorders, cellular or digital phones, computers, and all similar “forms and methods of recording, transmitting, or communicating.” See also N.D. Ind. Local Rule 83-3(c)(1), (3) (“[o]rdinarily, no one may have a cell phone or personal digital assistant (‘PDA’) in the courthouse,” and “[n]o one may use a cell phone or PDA in the courthouse for an improper purpose, including without limitation taking pictures or videos”; judges may confiscate devices or fine users if device makes “an audible noise in the judge’s courtroom while court is in session”); N.D. Ill. General Order 09-015 (Use of Text-Based Technology to Receive and Send Text Messages on Handheld Devices in Courtrooms), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GO09-015.pdf (“any Judge of the Court may, in his or her discretion, permit the use of text-based technology to receive and send text messages on handheld devices by persons in the public area of the Courtroom during Court proceedings, so long as such use of text-based technology does not include the use of any photography, broadcasting, radio, telephone or other audio transmission, or any audio or visual recording or transmission in violation of Local Rule 83.1(c), and does not emit sounds or otherwise disturb or distract from Court proceedings”).
Based on Federal Rule of Criminal Procedure 53 and a local district court rule barring cameras, the Seventh Circuit held a criminal defendant was properly denied permission to record and broadcast his trial on charges of failing to register for the draft. United States v. Kerley, 753 F.2d 617 (7th Cir. 1985). “All we have in the case before us is a limitation on the manner of news coverage; the media can do everything but televise the trial. The limitation can withstand constitutional scrutiny so long as it is reasonable and neutral, as with time, place, and manner restrictions generally.” Id. at 620-21. See also United States v. Torres, 602 F. Supp. 1458 (N.D. Ill. 1985) (networks allowed to copy tapes after they have been introduced into evidence and at convenient court recesses, but local court rule barring cameras, along with Sixth Amendment rights of defendants, precluded installation of wires in the courtroom in order to record videotapes simultaneously with their introduction into evidence).
“[T]he district court may, by rule, exclude photographing and broadcasting from those areas of the courthouse which would lead to disruption or distraction of judicial proceedings. . . .” Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir. 1970). However, a court rule barring all photographs in the courthouse “environs” was overbroad because it included areas, such as the ground floor plaza and sidewalks, where “no foreseeable noise or commotion” could disturb the court's own proceedings. Id. at 562. Compare Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“the lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views”).
Subsequently, the Northern District of Illinois enacted rules establishing a “designated media area” in the Chicago federal courthouse lobby for interviews and photography. See N.D. Ill. General Order 07-001 (Guidelines Regarding Use of the Everett McKinley Dirksen U.S. Courthouse Lobby by Media Personnel) (amended 5/15/13 and August 5, 2016), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GenOrder07-001.pdf. See also C.D. Ill. Local Civil R. 83.7(A) (“[n]ews media representatives wishing to conduct interviews in relation to a court case may contact the presiding judge to seek permission to bring electronic equipment into the building for that purpose. If permission is granted, the judge will designate a specific area of the courthouse where such electronic equipment may be stored and used”).
Some Local Rules also codify the judges’ authority to issue special decorum orders in high-profile cases. See, e.g., S.D. Ill. Local R. 83.6(c), (d) (“In a widely publicized or sensational case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses which might interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order”); N.D. Ind. Local Crim. R. 53-1(a).
In the Northern District of Illinois, the district court and/or individual district judges will frequently issue additional guidelines for coverage by the news media in high-profile cases, including restrictions on the use of electronic devices in the courtroom. See, e.g., Guidelines for Proceedings in United States v. Hastert (June 8, 2015) (https://www.ilnd.uscourts.gov/_assets/_news/Guidelines%20in%20USA%20v.%20Hastert.pdf); Guidelines for the Media Covering United States v. Warner & Ryan (Sept. 20, 2005) (http://www.ilnd.uscourts.gov/_assets/_news/press/pr092005.htm).
The Seventh Circuit has discussed the circumstances in which audio tapes introduced as evidence may be released for copying by the media.
In an early decision, the Court found the district court’s refusal to release an audio tape in the midst of a criminal trial was not an abuse of discretion, but stated that its decision did not preclude the news media from seeking post-trial access to the tape. United States v. Edwards, 672 F.2d 1289, 1295 & n. 13 (7th Cir. 1982). Edwards noted that typically, a jury admonition to avoid news media reports is sufficient to avoid undue prejudice from publicity given to admitted evidence; however, “where an extraordinary level of publicity has made exceptionally difficult the selection of a jury and has created a circus atmosphere around the trial . . . , or where the administrative and mechanical difficulties attending inspection and copying would disrupt the progress of the proceeding . . ., denial of access may be warranted. We can state no hard-and-fast rule.” Id. at 1295-96.
United States v. Guzzino, 766 F.2d 302 (7th Cir. 1985) held it was an abuse of discretion in violation of the common law right of access for the district judge to deny CBS access to criminal trial audio tapes solely on the ground that the poor audio quality thereof could result in inaccurate and misleading news coverage. See also United States v. Shannon, 540 F. Supp. 769 (N.D. Ill. 1982) (television network has right to inspect and copy tapes played in open court during sentencing hearing; no demonstration that access would prejudice fair trial rights of either defendants or un-indicted third parties).Compare
C. Tips for covering courts in the jurisdiction
The U.S. Court of Appeals for the Seventh Circuit is based in Chicago and covers Wisconsin, Illinois and Indiana. The Courthouse is located in the Dirksen Federal Building, 219 S. Dearborn St., Chicago, Illinois 60604. The Clerk’s telephone number is 312-435-5850.
The Seventh Circuit’s website is located at http://www.ca7.uscourts.gov. A Practitioner’s Handbook for Appeals is available on the Court’s website, along with the Circuit’s Rules, Operating Procedures and other useful information.
The district courts in the Circuit each maintain a website, containing the current version of the Local Rules referenced above and relevant contact information. The Northern District of Illinois website includes a Media Information page, https://www.ilnd.uscourts.gov/Pages.aspx?jQpmSBHf3aiDZ+nRR7HF4Q, that contains contact information for court personnel; “professional media representatives” (i.e., those “employed by a recognized network, cable, or independent news organization”) can register online to get e-mail notifications when an entry is made in the Court's Electronic Case Filing System, and other media alerts and court announcements. See also N.D. Ill. General Order 07-003 (Registration of Media Personnel Desiring Privileges and Accommodations in Any Courthouse of the United States District Court for the Northern District of Illinois), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GenOrder07-003.pdf.Compare