In re Leopold

• Decision Date: 10 December 2020
• Docket Number: Miscellaneous Action No. 20-95 (BAH)
• Parties: IN THE MATTER OF APPLICATION OF JASON LEOPOLD AND BUZZFEED, INC. FOR ACCESS TO CERTAIN SEALED COURT RECORDS
• Court: U.S. District Court — District of Columbia

IN THE MATTER OF APPLICATION OF JASON LEOPOLD AND BUZZFEED, INC. FOR ACCESS TO CERTAIN SEALED COURT RECORDS

Miscellaneous Action No. 20-95 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 10, 2020

Chief Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER

On September 17, 2020, petitioners Jason Leopold and Buzzfeed, Inc., applied to this Court for an order directing the unsealing of currently sealed applications, along with any supporting documents and resulting court orders, filed by the U.S. Drug Enforcement Agency ("DEA") since May 31, 2020 that were submitted for a non-Title 21, U.S. Code, investigative or law enforcement purpose. Appl. ¶ 3, ECF No. 1.¹ This petition was prompted by information that, over the two-week period from May 31, 2020 to June 14, 2020, the Attorney General delegated non-Title 21 duties to the DEA. Id. ¶ 2 (citing Ex. A, Memorandum, dated May 31, 2020, from Timothy Shea, Acting Administrator of the DEA, to the Deputy Attorney General). Petitioners opted to limit the types of judicial records sought to be unsealed in response to the petition to DEA applications for: (1) warrants issued pursuant to the Stored Communications Act ("SCA"), see 18 U.S.C. § 2703(a); (2) court orders issued pursuant to section 2703(d) of the SCA; and (3) court orders authorizing the installation and use of pen register and trap and trace ("PR/TT") devices, see id. § 3123.

Rather than file a request for these records directly from the U.S. Department of Justice or its component, DEA, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552,which expressly provides exceptions to disclosure that may be applicable to the records sought to be unsealed here, see, e.g., id. § 552(b)(7), (c), petitioners are seeking, under the authority of In re Leopold to Unseal Certain Electronic Surveillance Applications and Orders ("Leopold"), 964 F.3d 1121 (D.C. Cir. 2020), now on remand before this Court, to have the U.S. District Court for the District of Columbia search for, identify, review, unseal as appropriate, and make publicly available these records, Pet'rs' Mem. Supp. Appl. at 9-10, ECF No. 1-1. The parties in both the instant case and the remanded, earlier case, which was brought by Leopold and the Reporters Committee for Freedom of the Press ("RCFP") to unseal decades of sealed investigative applications and orders, In re Application of Jason Leopold, No. 13-mc-712 ("In re Leopold/RCFP"), were directed to show cause why the two cases should not be consolidated. See Minute Order to Show Cause (Oct. 6, 2020); Minute Order to Show Cause (Oct. 6, 2020), In re Leopold/RCFP, No. 13-mc-712. While the petitioners in both cases have no objection to consolidation, the government opposes. See Pet'rs' Resp. to Order to Show Cause ("Pet'rs' Resp."), ECF No. 3; Pet'rs' Resp. to Sept. 1, 2020 Minute Order ("Pet'rs' In re Leopold/RCFP Resp.") at 15-16, In re Leopold/RCFP, No. 13-mc-712, ECF No. 68; Gov't's Resp. to Court's Sept. 1, 2020 Minute Order Following Remand from the D.C. Circuit ("Gov't's In re Leopold/RCFP Resp.") at 24, In re Leopold/RCFP, No. 13-mc-712, ECF No. 67. For the reasons set out below, the two cases will be consolidated.

I. LEGAL STANDARD FOR CONSOLIDATION

A court may consolidate two pending actions if they "involve a common question of law or fact." Fed. R. Civ. P. 42(a)(2). Consolidation "is permitted as a matter of convenience and economy," Hall v. Hall, 138 S. Ct. 1118, 1127 (2018) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496 (1933)), and "is ordinarily left to the sound discretion of the District Court,"Moten v. Bricklayers, Masons, & Plasterers, Int'l Union Am., 543 F.2d 224, 228 n.8 (D.C. Cir. 1976); see also United Bhd. Carpenters & Joiners v. Operative Plasterers' & Cement Masons' Int'l Ass'n, 721 F.3d 678, 689-90 (D.C. Cir. 2013). In exercising that discretion, district courts must weigh any potential prejudice and confusion resulting from consolidation against the risk of inconsistent rulings on common factual and legal questions, particularly involving identical or overlapping parties, and the concomitant burden on the parties and the court, length of time, and relative expense of proceeding with separate lawsuits if they are not consolidated. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2383 (3d ed. 2020) (citing Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982)): Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993) (same); Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) (same); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985) (same); see also Singh v. Carter, 185 F. Supp. 3d 11, 18 (D.D.C. 2016); Royer v. Fed. Bureau Prisons, 292 F.R.D. 60, 61 (D.D.C. 2013); Nat'l Ass'n Mortg. Brokers v. Bd. Governors Fed. Reserve Sys., 770 F. Supp. 2d 283, 286 (D.D.C. 2011).

II. DISCUSSION

Petitioners Jason Leopold and Buzzfeed in the instant case, and petitioners Leopold and intervenor RCFP in In re Leopold/RCFP, seek to unseal currently sealed investigative applications and related orders filed by the government in this Court, pursuant to the SCA, 18 U.S.C. §§ 2701 et seq., and the Pen Register Act ("PRA"), 18 U.S.C. §§ 3121, et seq. Given the obvious common issues of law and fact raised by both petitions, the parties in both cases were directed, as noted, to provide their views on consolidation. At the same time, the parties in In re Leopold/RCFP were directed to provide their views on how that case should proceed on remand. See Minute Order to Show Cause (Sept. 1, 2020), In re Leopold/RCFP, No. 13-mc-712. Thequestion of consolidation turns, in part, on how In re Leopold/RCFP will proceed on remand, and thus the D.C. Circuit's decision and its import in carrying out the mandate on remand are discussed first, before turning to the reasons strongly militating in favor of consolidation of the petitions in both cases.

A. The Hubbard Factors and the D.C. Circuit's Leopold Decision

The D.C. Circuit in Leopold confirmed that disclosure of the judicial records at issue in both the instant case and in In re Leopold/RCFP is governed by the six-factor test of United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). Leopold, 964 F.3d at 1130. Those six Hubbard factors are "(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any generalized property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings." Id. at 1131 (quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017)). Based on its construction of the statutory authorities implicated by the judicial records at issue, the D.C. Circuit concluded that a strong presumption of public access applies to SCA warrants and 2703(d) orders but not to PR/TT orders. See id. at 1130-31 ("With respect to SCA materials, . . . Congress displaced neither the common-law presumption of access nor the Hubbard test for making unsealing decisions [and] [w]ith respect to pen register orders, . . . Congress did displace the presumption, but did not displace the Hubbard test as the standard for unsealing. Therefore, when faced with a request to unseal either kind of material, the district court should apply the traditional Hubbard balancing test—albeit without a thumb onthe scale in the case of pen register orders."). Further, the D.C. Circuit held that "the burden of producing judicial records may not permanently foreclose their unsealing." Id. at 1134.

In so holding, the D.C. Circuit rejected this Court's reading of Hubbard as setting out the six enumerated factors, in part III.A of the opinion, as "generalized interests," Hubbard, 650 F.2d at 317, which "can be weighed without examining the contents of the documents at issue," id., and also allowing consideration of additional "particularized" factors, which required focus "on the documents' contents," id. at 322. Following part III.A., titled "The 'Generalized Interests' for and Against Public Access in This Case," the Hubbard Court outlined consideration of such particularized factors in two separate subsequent sections, parts III.B, "Particularized Factors That May Have Weighed Against Nondisclosure," id. at 322, and III.C, "Particularized Privacy Interests Which May Weigh in Favor of Denying Public Access," id. at 323. Part IV of the Hubbard opinion, "The Procedures to Be Followed in the Supplemental Proceedings," id. at 324, summarized the Circuit's analysis of the "generalized interests at stake," and observed that its conclusion "that the seal on the documents at issue should be retained" could be overcome on remand should the trial judge "justif[y] disclosure on the basis of the 'particularized' factors we suggest or on some other basis," id.² In other words, in Hubbard, the generalized factors were a critical part, but not the entirety, of the analysis, as the D.C. Circuit now holds, see Leopold, 964 F.3d at 1132 (finding that six enumerated factors of Hubbard test were "adopted to 'fully account for the various public and private interests at stake' in sealing or unsealing judicial records" (quoting MetLife, 865 F.3d at 666)).

Relying on the particularized factors and interests highlighted by the Hubbard Court in examining the contents of the documents sought to be unsealed, this Court previously found that "[w]here the type of record sought to be unsealed requires careful review prior to unsealing to ensure that information properly retained under seal is not disclosed, and where the volume of the materials sought be unsealed amplifies the burden that undertaking such review will impose on a party and/or the Court, Hubbard properly allows a court to...