Newsday LLC v. Cnty. of Nassau

• Decision Date: 23 September 2013
• Docket Number: Docket Nos. 12–2728–cv,* 12–2731–cv.
• Citation: 730 F.3d 156
• Parties: NEWSDAY LLC, News 12 Networks LLC, Intervenors–Appellants, Sharon Dorsett, individually and as the Administratrix of the Estate of Jo'Anna Bird, Plaintiff, Peter Schmitt, Non–Party Defendant, v. COUNTY OF NASSAU, Nassau County Police Department, Office of the Nassau County District Attorney, Robert Ariola, Detective, in his official and individual capacities, Defendants–Cross–Claimants–Appellees, John and Jane Does 1–10, Police Officers and/or Detectives, John and Jane Does 1–10, District Attorney, Defendants–Appellees, Police Benevolent Association of the Police Department of the County of Nassau, Inc., Intervenor–Appellee, Leonardo Valdez–Cruz, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

730 F.3d 156

NEWSDAY LLC, News 12 Networks LLC, Intervenors–Appellants,Sharon Dorsett, individually and as the Administratrix of the Estate of Jo'Anna Bird, Plaintiff,Peter Schmitt, Non–Party Defendant,

v. COUNTY OF NASSAU, Nassau County Police Department, Office of the Nassau County District Attorney, Robert Ariola, Detective, in his official and individual capacities, Defendants–Cross–Claimants–Appellees,John and Jane Does 1–10, Police Officers and/or Detectives, John and Jane Does 1–10, District Attorney, Defendants–Appellees,Police Benevolent Association of the Police Department of the County of Nassau, Inc., Intervenor–Appellee,Leonardo Valdez–Cruz, Defendant.^*

Docket Nos. 12–2728–cv,^* 12–2731–cv.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2013.

Decided: Sept. 23, 2013.

David A. Schulz (Jacob P. Goldstein, on the brief), Levine Sullivan Koch & Schulz, LLP, New York, NY, for Intervenors–Appellants.

Dennis J. Saffran, for John Ciampoli, County Attorney of Nassau County, Mineola, NY, for Defendants–Cross–Claimants–Appellees and Defendants–Appelles.

Seth H. Greenberg, Greenberg Burzichelli Greenberg P.C., Lake Success, NY, for Intervenor–Appellee.

Before: LYNCH, LOHIER, and CARNEY, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

This appeal stems from ongoing attempts by various news organizations to gain access to sealed court proceedings, transcripts, and discovery documents. Their marked persistence in pursuing the matter is a result of the public interest in the underlying, and now-settled, civil suit that generated the civil contempt action that was the focus of the constitutional right-of-access claims that face us on appeal. Despite this complex posture, the questions this appeal presents are straightforward. First, does the First Amendment's presumptive right of access to court proceedings attach to civil contempt proceedings and related documents? Second, for each of the documents sought, does that presumptive right of access require disclosure in this particular case?

BACKGROUND

I. The Underlying Lawsuit

On March 19, 2010, Sharon Dorsett filed a civil rights suit both on her own behalf and on behalf of the estate of Jo'Anna Bird, her daughter, alleging that various state actors affiliated with the Nassau County Police Department had negligently contributed to Bird's fatal stabbing by her ex-boyfriend and her child's father, Leonardo Valdez–Cruz.¹ Bird had obtained several orders of protection against Valdez–Cruz on behalf of herself and her child, and those orders were in effect during the weeks and days leading up to Bird's death.² For intermittent periods of time prior to Bird's death, moreover, Valdez–Cruz was in police custody. Nevertheless, the complaint alleged, despite the court orders and the supposed police supervision, that Valdez–Cruz “tortured, stalked, menaced, maimed, harassed, annoyed, injured, threatened, mutilated, kidnaped and killed” Bird as a direct result of the County's and the Police Department's negligence. Compl. ¶ 8. The complaint further alleged that this negligently lax supervision resulted at least in part from Valdez–Cruz's status as a police informant. Id. ¶¶ 126, 296.

During the course of the litigation, Dorsett sought various documents from defendants, including an internal police report detailing the results of an investigation into the matter. This document, which is 712 pages long, is styled “Nassau County Police Department Internal Affairs Unit Investigation Report 14–2009” (“IAU Report” or “Report”). Defendants eventually produced a redacted copy of the Report to Dorsett and her counsel, and did not seek to place that copy under seal. Dorsett objected to the extent of redactions to the Report, and the magistrate judge (A. Kathleen Tomlinson, Magistrate Judge ) ruled that some but not all of the redactions inappropriately concealed information that was relevant to Dorsett's claims and therefore discoverable by her.

II. The Initial Protective Order

After receiving the redacted copy of the IAU Report, Dorsett's counsel issued a press release announcing a press conference. The purpose of the press conference, which was to be held on the morning of December 1, 2010, was to release the redacted Report to the general public. The day before the press conference, the defendants moved orally for an injunction or protective order prohibiting the release of the contents of the Report to the general public and requested an emergency hearing on the motion. The magistrate judge heard argument from both sides by conference call at 5:00 p.m. the evening before the announced press conference. At the conclusion of the hearing, the magistrate judge granted defendants' motion and temporarily restrained and preliminarily enjoined Dorsett's counsel from releasing the contents of the Report. After that preliminary ruling, the parties submitted supplemental briefing on the appropriateness of an extension of the injunctive relief. Additionally, Newsday LLC and News 12 Networks LLC (collectively, the “intervenors” or “press intervenors”) sought, and were granted, leave to intervene in the case for purposes of (a) opposing defendants' motion for an injunction or protective order and (b) moving to unseal any motion papers or transcripts related to the IAU Report.

On January 14, 2011, the magistrate judge considered the motions in full and concluded that defendants had met the threshold showing of “good cause” required by Federal Rule of Civil Procedure 26(c) for issuance of a protective order. In so finding, the magistrate judge rejected intervenors' argument that the Report was at that point a “judicial document” and therefore concluded that it did not trigger the common law presumption in favor of public access. Importantly, the magistrate judge noted that her determination that the IAU Report was not a judicial document was limited to the case's posture at the time, and that the course of discovery and motion practice might transform the Report into a judicial document—and therefore create a presumption of public access—at a later date.³

Defendants in the underlying lawsuit ultimately reached a settlement with Dorsett, but the agreement was contingent upon approval by the Nassau County Legislature and the Nassau County Interim Finance Authority. Pursuant to this clause, defendants sought legislative approval for the $7.7 million payment that the settlement called for. Several members of the legislature, including the eventual contempt defendant Peter Schmitt, refused to approve such a large settlement without reviewing the evidence that justified it. Those legislators accordingly requested that the district court permit them to review the evidence in the case, including the IAU Report, which was still subject to the magistrate judge's protective order. On December 15, 2011, the district court (Arthur D. Spatt, Judge ) provided Schmitt and the other legislators with the IAU Report subject to an additional confidentiality order prohibiting them from conveying to anyone else information learned exclusively from the Report and not independently from another source.⁴

Despite the protective order, Schmitt made a statement during a televised editorial that appeared to reveal information contained in the Report. Specifically, Schmitt stated:

There are 22 police officers in this county who were mentioned in that confidential Internal Affairs report who ought to be ashamed to look at themselves in the mirror every morning when they get up to shave, much less be wearing the badge.... Orders of protection were ignored ... mandatory arrests were called for and not performed, giving a cell phone to the prisoner when he was behind bars and allowing him to call the victim 35 to 40 times, and on and on and on.

Upon learning of Schmitt's statements, the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. (“PBA”) sought to intervene in the then-settled civil case to enforce the district court's December 15, 2011 confidentiality order. The district court granted the motion to intervene and scheduled a hearing to consider whether Schmitt was in contempt of the confidentiality order. Those civil contempt proceedings began on May 31, 2012.

III. The Contempt Hearing

The contempt hearing began in open court but was moved into Judge Spatt's chambers at the request of Schmitt's counsel. At the outset of the proceedings, Judge Spatt declined to review a copy of the Report to compare it against Schmitt's public statement, and instead requested that the PBA produce a witness to testify as to the contents of the Report. The PBA asked that the witness be given a copy of the Report “to refresh his recollection,” and the district court recessed to allow the PBA to find a witness familiar with the contents of the Report. When the proceedings resumed, the district court asked, “Is there a request to seal the courtroom?” Both the County and the PBA said yes. Matthew Chayes, a reporter for Newsday who was present in the courtroom, requested time to contact the newspaper's counsel to object formally to the closing of the courtroom. Frank Eltman, a reporter from the Associated Press, joined in the application. The district court declined to allow such a recess, confirmed that Chayes was himself objecting to the closing of the courtroom, and overruled the objection.⁵ Counsel for the press intervenors renewed their objections with the district court's staff by telephone during the sealed proceedings, but chambers staff declined to interrupt the sealed proceedings and directed the press intervenors to file their objections in writing.

The sealed proceedings continued with the testimony of Nassau County Police Department Assistant Chief Neil J. Delargy, who supervised the Internal Affairs Unit that had produced the Report. Delargy was allowed to review the Report during the course of his testimony, and on two occasions he relied on the text of the...