U.S. v. Amodeo

• Decision Date: 08 December 1995
• Docket Number: D,No. 2214,2214
• Citation: 71 F.3d 1044
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 24 Media L. Rep. 1203 UNITED STATES of America, Plaintiff, v. Anthony R. AMODEO, Sr., et al., Defendants. In re Application of NEWSDAY, INC., Non-Party Applicant-Appellee, v. MEYER, SUOZZI, ENGLISH & KLEIN, P.C., Affected Non-Party Appellant. ocket 95-6086.

Page 1044

71 F.3d 1044

24 Media L. Rep. 1203

UNITED STATES of America, Plaintiff, v. Anthony R. AMODEO, Sr., et al., Defendants.

In re Application of NEWSDAY, INC., Non-Party Applicant-Appellee, v. MEYER, SUOZZI, ENGLISH & KLEIN, P.C., Affected Non-Party Appellant.

No. 2214, Docket 95-6086.

United States Court of Appeals, Second Circuit.

Argued July 17, 1995.

Decided Dec. 8, 1995.

Stephen Gillers, New York University, New York City, for Affected Non-Party Appellant.

Robert D. Sack, Gibson, Dunn & Crutcher, New York City (Leslie E. Moore, Lisa A. Sleboda; Carolyn Schurr, Assistant General Counsel, The Times Mirror Company, of counsel), for Non-Party Applicant-Appellee.

Before: WINTER, CALABRESI, and CABRANES, Circuit Judges.

WINTER, Circuit Judge:

Affected non-party Meyer, Suozzi, English & Klein, P.C. ("Meyer, Suozzi"), a law firm, appeals from Judge Patterson's order releasing a redacted version of a sealed investigative report filed with the district court. We reverse in part and remand in part.

The report in question was prepared by Mary Shannon Little, a Court Officer appointed pursuant to a consent decree to investigate allegations of corruption in Local 100 of the Hotel Employees & Restaurant Employees International Union AFL-CIO. The consent decree granted the Court Officer broad powers, including authority to subpoena witnesses and to take testimony under oath and "all of the powers, privileges and immunities of a person appointed pursuant to Rule 66, Fed.R.Civ.P., and which are customary for court appointed offices [sic] performing similar assignments." The Court Officer subpoenaed hundreds of documents and interviewed hundreds of witnesses in the course of her investigation.

As part of her inquiry, the Court Officer examined the activities of various firms and individuals who provided services to Local 100. Included was Meyer, Suozzi, Local 100's legal counsel for the period 1983-1991. Her investigation of Meyer, Suozzi's representation of Local 100 necessarily involved Harold Ickes, a member of the firm principally responsible for representing Local 100 during this period. Mr. Ickes has since been appointed Deputy Chief of Staff to President Clinton.

The Court Officer deemed it advisable to submit periodic reports to the court. Usually, these reports were simply filed with the underlying litigation's docket number in the district court. On occasion, however, she delivered material that she considered confidential directly to Judge Patterson. One such report concerned the Court Officer's inquiry into Meyer, Suozzi's relationship with Local 100 ("the Report"). Presumably because of Ickes' position in the White House, appellee Newsday perceived the Report to be of public interest and intervened to seek its unsealing.

This matter is before us for the second time. In the first appeal, familiarity with which is assumed, we held that the Report was a "judicial document" and thus "presumptively" subject to public inspection. United States v. Amodeo, 44 F.3d 141, 146 (2d Cir.1995) ("Amodeo I "). We also held, however, that the district court could redact the Report, if necessary, to accommodate concerns of the Court Officer, who objected to the unsealing on the ground that it might interfere with her ongoing investigation. Id. at 147. In particular, the Court Officer was concerned that release of the Report would disclose the identity of confidential informants who had provided her with leads and would perhaps deter sources in the future. As a result of those concerns, the district court had, prior to the appeal in Amodeo I, allowed the Court Officer to redact the report. Id. at 144. We remanded with regard to these redactions to insure that they were based on the court's independent balancing of interests and were not the result of an improper delegation of judicial authority to the Court Officer. Id. at 147. We also stated that the district court could redact the report to accommodate the privacy interests of Meyer, Suozzi. Id. at 147-48.

On remand, the district court redacted the Report so as to accommodate the wishes of the Court Officer, see United States v. Amodeo, No. 92-7744 (S.D.N.Y. Feb. 23, 1995), but rejected additional redactions--virtually the entire Report--proposed by Meyer, Suozzi, see United States v. Amodeo, No. 92-7744, 1995 WL 261517 (S.D.N.Y. May 1, 1995). The firm then took this expedited appeal.

Our disposition of this matter and our reasons for it are somewhat complex. Our previous decision established a "presumption favoring access" to the Report, Amodeo I, 44 F.3d at 146, and stated that Meyer, Suozzi had the burden of overcoming that presumption. Id. at 148. We now address the standards to be used in balancing the presumption of access to the Report against Meyer, Suozzi's objections. We agree that the redactions made to the two-part Report by the district court at the suggestion of the Court Officer were appropriate. However, we believe that release of the redacted version of Part 1 of the Report either would provide little meaningful information to the public because the redactions are so extensive or might, if responded to, cause the confidential sources to be identified. It would, moreover, subject Ickes and Meyer, Suozzi to the public airing of accusations that are anonymous, unverified, and, to a degree, of doubtful veracity. We therefore reverse as to the unsealing of Part 1 of the Report. We remand for a reconsideration of the unsealing of the remaining portion, Part 2 of the Report, in light of the ensuing discussion.

A. The Weight of the Presumption of Access

Courts have given various descriptions of the weight to be given to the presumption of access, ranging from an "especially strong" presumption requiring "extraordinary circumstances to justify restrictions," United States v. Myers (In re Nat'l Broadcasting Co.), 635 F.2d 945, 952 (2d Cir.1980), to merely "one of the interests" that may bow before "good reasons" to deny the requested access. Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir. Unit A 1981).

The difficulty in defining the weight to be given the presumption of access flows from the purpose underlying the presumption and the broad variety of documents deemed to be judicial. The presumption of access is based on the need for federal courts, although independent--indeed, particularly because they are independent--to have a measure of accountability and for the public to have confidence in the administration of justice. Federal courts exercise powers under Article III that impact upon virtually all citizens, but judges, once nominated and confirmed, serve for life unless impeached through a process that is politically and practically inconvenient to invoke. Although courts have a number of internal checks, such as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.

As the Third Circuit has noted:

The public's exercise of its common law access right in civil cases promotes public confidence in the judicial system.... As with other branches of government, the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.

Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 161 (3d Cir.1993) (quoting Republic of the Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir.1991) (citation omitted)); accord Bank of Am. Nat'l Trust & Savings Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343-44 (3d Cir.1986); see also In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) ("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.").

Having said that, it must be recognized that an abundance of statements and documents generated in federal litigation actually have little or no bearing on the exercise of Article III judicial power. The relevance or reliability of a statement or document generally cannot be determined until heard or read by counsel, and, if necessary, by the court or other judicial officer. As a result, the temptation to leave no stone unturned in the search for evidence material to a judicial proceeding turns up a vast amount of not only irrelevant but also unreliable material.

Unlimited access to every item turned up in the course of litigation would be unthinkable. Reputations would be impaired, personal relationships ruined, and businesses destroyed on the basis of misleading or downright false information. Newsday stresses that litigants can accomplish similar ends by including such information in pleadings, which are both public and privileged. There is some truth in this assertion, particularly with regard to vexatious pro se litigants. See In re Martin-Trigona, 737 F.2d 1254, 1264-68 (2d Cir.1984) (Appendix A, containing typical complaint). However, the public is typically neither familiar with nor interested in pleadings by such litigants.

Where lawyers are involved in scurrilous allegations, professional sanctions may be available. See generally Model Code of Professional Responsibility DR 7-102(A)(1) (1980); Model Rules of Professional Conduct Rule 3.1 (1983) (professional rules upon which sanctions may be based); see also ABA Standards for Imposing Lawyer Sanctions,...