293 F.3d 1 (1st Cir. 2002), 02-1329, In re Providence Journal Co., Inc.

Docket Nº:02-1329, 02-1475.
Citation:293 F.3d 1
Case Date:June 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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293 F.3d 1 (1st Cir. 2002)


Nos. 02-1329, 02-1475.

United States Court of Appeals, First Circuit

June 12, 2002

Heard May 8, 2002.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Howard A. Merten, with whom Gordon P. Cleary and Vetter & White, Inc. were on brief, for petitioner.

Jerry Elmer and Goldenberg & Muri LLP on brief for Rhode Island Affiliate— American Civil Liberties Union, amicus curiae.

Lucy A. Dalglish on brief for The Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, The Society of Professional Journalists, Radio-Television News Directors Association, and Newspaper Association of America, amici curiae.

William L. Patton, with whom Joan McPhee, Michele T. Perillo, and Ropes & Gray were on brief, for respondent (Hon. Ernest C. Torres).

Before BOUDIN, Chief Judge, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

This proceeding is an outgrowth of the widely publicized political corruption case brought by the federal government against Providence mayor Vincent A. ("Buddy") Cianci, Jr., and several codefendants. During the trial, a daily newspaper filed serial mandamus petitions seeking to remediate perceived violations of First Amendment and common-law rights of access to documents, videotapes, and other materials that comprise part of the court record. These petitions present, in essence, three important questions (some of novel impression).

The first question pertains to public access to memoranda of law that counsel are required by local rule to submit in connection

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with motions. These memoranda contain the substance of a movant's argument or a nonmovant's opposition: pertinent facts, case law, statutory references, and legal reasoning. As to this question, we conclude that the District of Rhode Island's longstanding practice of refusing to place these memoranda in the case file, available for public perusal, violates the First Amendment. The second question pertains to the manner in which the district court has handled such memoranda in the Cianci case. We uphold most—though not all—aspects of the praxis employed by the district court. The third question involves the newspaper's request for copies of videotape and audiotape evidence introduced at the trial. Given the circumstances, we conclude that the district court's refusal to accede to this request did not constitute an abuse of discretion.


Although the two petitions share a common nucleus of operative fact, they constitute discrete requests for relief. Accordingly, we describe each petition separately.

A. The First Petition.

On April 2, 2001, a federal grand jury indicted Mayor Cianci, along with five other individuals, on a variety of charges. The linchpin of the indictment was a RICO conspiracy count that, in effect, charged the defendants with operating City Hall as a racketeering enterprise that demanded bribes, sometimes thinly disguised as "campaign contributions," as a prerequisite to doing business with the municipality and its agencies. The indictment itself came as no surprise: some details of the federal probe, dubbed "Operation Plunder Dome," had surfaced earlier, and a number of other persons already had been indicted on related charges.

Both before and after the Cianci indictment, Operation Plunder Dome received pervasive publicity. During the grand jury investigation that culminated in this indictment, leaked information proved to be a persistent problem. To cite one example, a local television station broadcast a videotape that had been presented to the grand jury as evidence. To cite another, an Assistant United States Attorney (AUSA) played an FBI surveillance tape for several of his friends.

The Cianci indictment brought heightened attention to the scandal. Determined to ensure the protagonists' right to a fair trial, the district court sanctioned the wayward AUSA, appointed a special prosecutor to investigate whether criminal contempt charges should be brought against whomever was responsible for the grand jury leaks, and reminded counsel of their obligation to refrain from publicly disseminating information that threatened the integrity of the upcoming trial. See D.R.I. R. 39 (precluding release of information if there exists a "reasonable likelihood that it imposes a serious and imminent threat of interference with a trial or action"); R.I. R. Prof 1 Conduct, R. 3.6 (precluding extrajudicial statements that have a "substantial likelihood of materially prejudicing an ad-judicative proceeding").

The capstone of the court's efforts was the issuance, on May 15, 2001, of a nondissemination order. Citing the "intense media coverage" surrounding the Cianci case, the court foresaw "a substantial risk of prejudicing the parties' right to a fair trial." To diminish that risk, the court prohibited the dissemination of, inter alia, any information regarding the testimony, character, credibility, or reputation of any witness; any information presented to the grand jury; and any information concerning plea negotiations. The order (which contained an exception for information

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"presented at trial or during the course of any hearing conducted in open court") was to remain in effect pending the disposition of all charges against all defendants.

In the same order, the court instituted a procedure with respect to the filing of any documents that might contain references to restricted information. Each such document was to be filed under seal, accompanied by a separate descriptive document that, inter alia, stated the reasons why the submitted document should be sealed. The court, acting sua sponte or on the motion of any party, could order any document to be unsealed if it determined that, notwithstanding any references to restricted information, insufficient justification existed for keeping that document confidential.

On May 23, 2001, the district court issued an order amending this procedure (we henceforth refer to the May 15 order, as modified by the May 23 order, as the non-dissemination order). The May 23 order changed the ground rules in three respects. First, counsel were instructed to refrain from making any reference to restricted information in motions or oppositions to motions. Second, the author of any legal memorandum submitted in connection with a motion was directed to file a certification as to whether the memorandum contained information subject to the non-dissemination order. Third, the order stated that if the court's subsequent review of any particular legal memorandum revealed that the memorandum contained no restricted information, it would be placed on file in the clerk's office and made available for public inspection. The order made clear, however, that the court would not undertake to "redact or edit any memorandum."

The district court's treatment of legal memoranda in the Cianci case represented a departure from the prevailing practice in the District of Rhode Island. Although the court's local rules seem to provide for the filing in the clerk's office of legal memoranda supporting or opposing motions, see D.R.I. R. 12(a)(1)-(2), the District of Rhode Island has a longstanding practice—dating back to the early 1980s—of docketing such memoranda but not placing them in the case files maintained by the clerk's office. Instead, they are transmitted directly to the judge to whom the case is assigned and kept in the judge's chambers (inaccessible to public scrutiny except upon request). We discuss the propriety of this practice infra.

The Cianci case generated a blizzard of paper, and numerous documents were submitted to the court in accordance with the procedures established by the nondissemination order. The state's major newspaper, The Providence Journal (The Journal), chafed under this regime. On February 19, 2002, The Journal filed a motion seeking access to 42 previously filed memoranda that it claimed had not yet been made public.1 In the same motion, The Journal sought further modifications of the non-dissemination order, asserting that the district court's general practice of denying access to legal memoranda reversed the presumption of openness applicable to judicial records. The Journal implored the court to deem all such memoranda public when filed unless, in a particular instance, a motion to

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seal was docketed and the court, after individualized inquiry, made specific record findings justifying confidentiality. The Journal also asked the court to consider redaction on a document-by-document basis as a less restrictive means of balancing the need for confidentiality against the public's right to know.2

Shortly before the start of trial, the district court denied virtually all of The Journal's requests. See United States v. Cianci, Crim. No. 00-083-T, slip op. at 14 (D.R.I. Mar. 15, 2002) (unpublished) [hereinafter "D. Ct, Op."]. After outlining the traditional treatment of legal memoranda in the District of Rhode Island, id. at 1-4, the court described the special procedures that it had instituted in the Cianci case and noted that 11 of the 42 memoranda at issue already had been placed on file in the clerk's office, id. at 4-5. Of the remaining 31 memoranda, 17 (related to discovery motions) had been referred to a magistrate judge; 3 dealt with mundane matters that the court believed were of no conceivable interest to The Journal; and the final 11 could not "properly be made part of the public record before trial" because they referred to "grand jury matters and/or matters, the dissemination of which would prejudice the parties' rights to a fair trial." Id. at 6-7.

The district court then denied most aspects of...

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