Certain Interested Individuals, John Does I-V, Who Are Employees of McDonnell Douglas Corp. v. Pulitzer Pub. Co.

• Decision Date: 15 March 1990
• Docket Number: WHO,89-2593,I-,Nos. 89-2532,s. 89-2532
• Citation: 895 F.2d 460
• Parties: 17 Media L. Rep. 1364 CERTAIN INTERESTED INDIVIDUALS, JOHN DOESARE EMPLOYEES OF MCDONNELL DOUGLAS CORPORATION, and McDonnell Douglas Corporation, Appellants and Cross-appellees, v. The PULITZER PUBLISHING COMPANY, and Edward H. Kohn, Appellees and Cross-appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 460

895 F.2d 460

17 Media L. Rep. 1364

CERTAIN INTERESTED INDIVIDUALS, JOHN DOES I-V, WHO ARE EMPLOYEES OF MCDONNELL DOUGLAS CORPORATION, and McDonnell Douglas Corporation Appellants and Cross-appellees, v. The PULITZER PUBLISHING COMPANY, and Edward H. Kohn Appellees and Cross-appellants.

Nos. 89-2532, 89-2593.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1989.

Decided Feb. 2, 1990.

Rehearing and Rehearing En Banc Denied March 15, 1990.

Veryl L. Riddle, Norman S. London, St. Louis, Mo., for appellants and cross-appellees.

Jim J. Shoemake, St. Louis, Mo., for appellees and cross-appellants.

Maury S. Epner, Alexandria, Va., was for amicus.

Before McMILLIAN, FAGG and BEAM, Circuit Judges.

McMILLIAN, Circuit Judge.

McDonnell Douglas Corp. (MDC), MDC vice-president Thomas M. Gunn, and several individual MDC employees (John Does I-V) (hereinafter appellants) appeal from a final order entered in the District Court for the Eastern District of Missouri redacting and disclosing certain materials that had been submitted in support of search warrant applications for two MDC offices. In re Search Warrant for Secretarial Area, No. 88-MISC-260 (E.D.Mo. filed Sept. 19, 1989) (clarified Sept. 28, 1989). For reversal, appellants argue the district court order improperly discloses intercepted communications to the public in violation of Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. Secs. 2510-2520 (hereinafter Title III). Appellants also argue that disclosure to the public of these materials, even as redacted, violates their constitutional right to privacy and damages their reputations. The Pulitzer Publishing Co., as the publisher of the St. Louis Post-Dispatch newspaper, and Edward H. Kohn (hereinafter appellees) filed a cross-appeal. They argue the district court erred in redacting the materials before disclosing them and in refusing to disclose the so-called Paisley affidavit.

For the reasons discussed below, we affirm in part and reverse in part. We affirm that part of the district court order refusing to disclose the Paisley affidavit and reverse that part of the district court order redacting and disclosing the search warrant materials as redacted. We dismiss the cross-appeal as moot.

BACKGROUND FACTS

The background facts are fully set forth in our prior opinion, In re Search Warrant for Secretarial Area, 855 F.2d 569 (8th Cir.1988) (Gunn I ). On June 14, 1988, federal agents executed 44 search warrants as part of a nationwide investigation, code-named "Operation Ill Wind," into allegations of widespread fraud and bribery within the Department of Defense and the defense industry. The nature and scope of the Operation Ill Wind investigation attracted extensive national and local news coverage.

MDC was the target of two of the Operation Ill Wind search warrants. The district court authorized searches of the offices of Gunn and his secretary. In support of the applications for search warrants for the MDC offices, the government attached an affidavit, prepared by an FBI agent, which was based in large part upon telephone conversations that had been intercepted pursuant to court-ordered wiretaps (hereinafter Gunn affidavit). Also attached to the search warrant applications was another affidavit that had been filed in the District Court for the District of Columbia in support of a search warrant application for the office of Melvin Paisley (hereinafter the Paisley affidavit). Due to an oversight, the search warrant for the secretarial office, description of property to be seized and the return were not sealed. However, the search warrant for Gunn's office, the attached affidavits, and all other materials In early July 1988 appellees sought disclosure of the sealed search warrant materials, including the Gunn and Paisley affidavits. The district court denied the motion to disclose and extended the sealing order for an additional 30-day period. We affirmed the district court's order in Gunn I. We held there was a qualified first amendment right of access to judicial documents that included search warrant materials, 855 F.2d at 572-74, but that the district court had properly refused to unseal the search warrant materials in order to protect a compelling governmental interest, that is, the government's on-going criminal investigation. Id. at 574. The government subsequently sought and was granted several 30-day extensions of the sealing order.

were sealed at the request of the government.

DISTRICT COURT ORDERS

On December 29, 1988, the government notified the district court, appellees and appellants that it no longer opposed the disclosure of most of the sealed search warrant materials, at least in redacted form, because "its investigatory objectives [had] been attained in part." The government also filed under seal a set of already-redacted affidavits. On December 30, 1988, appellees renewed their motion for disclosure of the sealed search warrant materials. On January 11, 1989, appellants filed motions opposing disclosure of the sealed materials to the public.

On September 19, 1989, the district court granted appellees' motion to unseal the sealed search warrant materials, subject to the government's redactions and redaction of the names and titles of certain other individuals. The district court decided that appellees' qualified first amendment right of access to judicial documents outweighed appellants' qualified fourth amendment privacy interests and ordered the sealed materials released. Order of Sept. 19, 1989, slip op. at 2-6. The district court later clarified that, in addition to the redactions set forth in its earlier order, the Paisley affidavit would remain under seal because that affidavit had been kept under seal in another district court and also deleted job titles and job descriptions from the search warrant materials to be released. Order of Sept. 28, 1989, slip op. at 1-2, citing In re Search Warrants (William M. Galvin), Misc. No. 87-218 (D.C.Cir. May 12, 1989). The district court also ordered job descriptions redacted from the sealed materials to be released.

The district court temporarily stayed its release order to allow appellants to appeal and seek a stay pending appeal from this court. This appeal and cross-appeal followed. We stayed the release order pending appeal.

JURISDICTION

The government has not yet indicted any of these appellants, so there is no pending criminal case. (In fact, the attorney for one of the individual Does stated in an affidavit that he has been advised by the government that the government has no interest in prosecuting his client at the present time and does not anticipate any prosecution in the future.) The district court order is not interlocutory, and we need not resort to the collateral order doctrine. We have jurisdiction under 28 U.S.C. Sec. 1291. See Gunn I, 855 F.2d at 572; see also United States v. Gerena, 869 F.2d 82, 83 (2d Cir.1989) (Gerena ); United States v. Dorfman, 690 F.2d 1230, 1231 (7th Cir.1982) (Dorfman ).

GUNN I AND TITLE III

Gunn I recognized a qualified first amendment right of access to documents filed in support of search warrant applications. 855 F.2d at 573-74 (McMillian, J.), 576 (Heaney, J., concurring and dissenting); cf. 575-76 (Bowman, J., concurring) (common law right of access only). Two circuits have disagreed with that holding. See In re Baltimore Sun Co., 886 F.2d 60, 64-65 (4th Cir.1989) (no first amendment right of access to search warrant affidavit; common law right of access only); Times Mirror Co. v. United States, 873 F.2d 1210, 1213-19 (9th Cir.1989) (Operation Ill Wind) (no first amendment or common law right of access to search warrant affidavits); cf. United States v. Corbitt, 879 F.2d 224, 228-29 (7th Cir.1989) (common law right of access, but no first amendment right of access, to pre-sentence reports).

In Gunn I the opposing parties were the newspaper, which sought disclosure, and the government, which opposed disclosure. MDC and Gunn filed briefs and presented oral arguments as amici curiae and opposing disclosure. They argued that the search warrant materials presumably contained confidential information, in particular wiretap information, and that the disclosure could harm not only their privacy interests, but also national security, trade secrets, and other confidential business information. The privacy argument was not necessary to our disposition of that case, and we did not, however, reach the merits of any of these arguments in Gunn I. 855 F.2d at 575. Our consideration in the present case of Title III is therefore not precluded or limited by Gunn I.

RIGHT OF ACCESS V. RIGHT TO PRIVACY

The cast of characters in the present case is the same as it was in Gunn I. The government, however, now appears only in the supporting role of amicus on the side of the newspaper. Now that its investigatory objectives have, at least in part, been achieved, the government no longer opposes releasing the search warrant affidavits, as redacted, to the public. Thus, denial of the public's, and the newspaper's, qualified right of access to these documents can no longer be justified by a compelling governmental interest in protecting an on-going criminal investigation. Appellants argue that another compelling interest justifies non-disclosure. Appellants argue that their privacy interests outweighs the public's interest in access.

Appellants argue the district court erred in releasing the redacted search warrant materials because these materials contain intercepted communications, that is, wiretap information. Appellants argue that Title III protects their interest in conversational privacy by prohibiting wiretapping except when authorized by court order and by restricting the use and disclosure of wiretap information. Appellants argue that the only way wiretap information can lawfully be disclosed to the public is through "testimony...