U.S. v. Andreas, 98-1441

• Decision Date: 27 July 1998
• Docket Number: No. 98-1441,98-1441
• Citation: 150 F.3d 766
• Parties: 26 Media L. Rep. 2143 UNITED STATES of America, Plaintiff-Appellee, v. Michael D. ANDREAS, et al., Defendants-Appellees, Appeal of The NEW YORK TIMES COMPANY and Dow Jones & Company, Inc., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 766

150 F.3d 766

26 Media L. Rep. 2143

UNITED STATES of America, Plaintiff-Appellee, v. Michael D. ANDREAS, et al., Defendants-Appellees Appeal of The NEW YORK TIMES COMPANY and Dow Jones &amp Company, Inc., Intervenors-Appellants.

No. 98-1441.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 1998.

Decided July 27, 1998. ^*

Philip A. Guentert, Office of the United States Attorney, Criminal Division, Chicago, IL, Marion L. Jetton, Department of Justice, Antitrust Division, Appellate Section, Washington, DC, John J. Powers (argued), United States Department of Justice, Antitrust Division, Washington, DC, for Plaintiff-Appellee.

James D. Miller (argued), King & Spalding, Washington, DC, James T. Phalen, King & Spalding, Washington, DC, Joseph J. Duffy, Stetler & Duffy, Chicago, IL, Kristina M.L. Anderson, Fishman, Merrick, Miller, Genelly, Springer, Klimek & Anderson, Chicago, IL, for Defendants-Appellees.

Michael M. Conway (argued), J. Mark Powell, Hopkins & Sutter, Chicago, IL, for Intervenors-Appellants.

Before: COFFEY, FLAUM, and ROVNER, Circuit Judges.

PER CURIAM.

The New York Times Company and Dow Jones & Company (collectively, "the newspapers"), appeal from an order entered by the district court denying in part their motion to make public certain papers and materials related to the criminal prosecution of Michael D. Andreas and Terrance S. Wilson. Andreas and Wilson, both of whom were officers of the Archer Daniels Midland Company (ADM), were indicted along with others in December 1996 on charges of price fixing in the lysine market, a protein additive for poultry and swine feed, in violation of Section 1 of the Sherman Act. Their trial in this widely-publicized case currently is ongoing.

During the course of pretrial discovery, the district court entered two protective orders permitting limited disclosure of otherwise privileged or confidential materials for the purpose of the parties' trial preparation. The protective orders cover grand jury materials, including grand jury testimony, documents produced in grand jury investigations pursuant to subpoena, and other documents considered by the grand jury. In addition, the orders provide that surveillance tapes purportedly made pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, are confidential, and the orders preclude disclosure of materials relating to ADM's confidential business information and trade secrets, as well as materials relating to the Government's investigation of the citric acid market. Pursuant to these protective orders, the parties to the criminal case filed numerous documents under seal. In addition, the defendants filed pretrial motions under seal, many of which were accompanied by supporting exhibits. The Government's responsive memoranda in opposition to these pretrial motions were also filed under seal.

In September 1997, The New York Times Company filed a motion, subsequently joined by Dow Jones & Company, to intervene in the criminal case in order "to secure public disclosure of documents filed under seal and to modify protective orders." ¹ The newspapers' motion listed, by docket number, the documents that had been filed under seal, asserted that the wholesale filing under seal of pretrial motions conflicts impermissibly with the presumption of public access to criminal proceedings, and contended that the district court "must evaluate the specific sealed materials to determine that the 'sealing' is not over-inclusive." The motion also requested that the district court modify the protective order to allow the parties "to file any portions of pleadings under seal only upon a particularized showing to the Court that the need for secrecy overcomes the constitutional and common-law privilege of public access."

The supporting memorandum of law filed by the newspapers made two arguments relating to the disclosure of sealed materials. The first argument--captioned "The Requested Materials Should be Disclosed in Balancing the Constitutional and Common Law Rights to Access"--discussed the public's right to attend criminal trials, a right that is rooted in both the First Amendment and the common law, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994), as well as a presumed right of access to pretrial proceedings and documents, see, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). This section of the memorandum argued, then, that there is a general presumption of access to pretrial documents.

The second argument contained in the newspapers' memorandum was captioned "The Seventh Circuit Has Held That Wholesale Sealing of Briefs is Improper." This argument asserted that this Court disfavors the wholesale filing of briefs and motions under seal, in light of the general presumption that judicial proceedings are open to the public. Because only information that is justifiably confidential should be filed under seal, the memorandum argued, the parties were exceeding the permissible scope of the protective orders by filing entire documents under seal.

In response to the newspapers' motion, Andreas and Wilson filed a motion in opposition in which they argued that most of the information contained in the documents that had been filed under seal was confidential and that under such circumstances the wholesale filing of documents under seal may be appropriate. The Government did not oppose the newspapers' motion in the district court. According to the Government's brief to this Court, it construed the motion to be requesting that pretrial documents be made available to the public to the extent they do not contain privileged or confidential material, a proposition to which it is not opposed as a general matter.

The district court, on January 5, 1998, granted the newspapers' motion to intervene. On the merits of the motion, the court denied the newspapers' request to modify the protective order. The court recognized that the constitutional and common-law right to access asserted by the newspapers is not absolute, and that "the presumption of access does not apply to materials properly submitted to the court under seal." In that context, the court discussed the materials that were subject to the protective orders and concluded that they shielded from disclosure materials that should appropriately remain confidential. The court, for example, took note of Federal Rule of Criminal Procedure 6(e) and concluded that "the well-established rule that materials containing grand jury information are protected from disclosure trumps the public's right to access those materials." The confidentiality of Title III surveillance tapes also outweighs the public's rights of access, the court concluded, because "Congress has already balanced the public's right to satiate its curiosity with defendants' rights to the benefits of pre-trial privacy and determined that the scales tip in favor of protection from disclosure." (Citing United States v. Dorfman, 690 F.2d 1230, 1233-34 (7th Cir.1982)). The court, therefore, declined to modify the protective orders.

The court did grant the newspapers partial relief, however, with respect to the wholesale filing of documents under seal. Relying primarily upon our decision in Methodist Hospitals, Inc. v. Sullivan, 91 F.3d 1026, 1031-32 (7th Cir.1996) (noting that "[j]udicial proceedings are presumptively open, but particular information may be withheld"), the court refused to allow the parties to continue filing entire documents under seal. Accordingly, the court directed the parties that if they "wish[ed] to file pleadings under seal in the future, they must simultaneously file either a public document with an accompanying sealed supplement or a sealed document with an accompanying public redacted version of that document." With respect to already-filed sealed pleadings, the parties were instructed to file publicly-available redacted copies.

The newspapers now appeal. We have jurisdiction over this appeal under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); United States v. Dorfman, 690 F.2d 1230, 1231-32 (7th Cir.1982). The newspapers raise only one argument in this appeal. They contend that "materials, even if initially properly filed under seal, become public documents when a district court reviews and relies upon such documents in making public pre-trial rulings in a criminal case." ² This argument asserts that the confidential materials submitted to the district court, and relied on or referred to by the court in making its rulings, creates a presumption of access that is distinct from the general presumption of access that applies to all judicial documents. According...