In Re: New York Times Motion ( 2020 )

19-1351
In Re: New York Times Motion
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 10th day of March, two thousand twenty.
PRESENT: AMALYA L. KEARSE,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
__________________________________________
In re: New York Times,
Intervenor‐Appellant,
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
United States of America,
Appellee,
v. 19‐1351
Tim Leissner,
Defendant.
__________________________________________
FOR APPELLANT: AL‐AMYN SUMAR, David E. McCraw,
The New York Times Company, New
York, NY.
FOR APPELLEE: ALIXANDRA E. SMITH, Assistant
United States Attorney, Brian A.
Benczkowski, Assistant Attorney
General, Criminal Division, Jennifer
E. Ambuehl, Woo S. Lee, Mary Ann
McCarthy, Nikhila Raj, Katherine
Nielsen, Trial Attorneys, Amy Busa,
Drew G. Rolle, Assistant United
States Attorneys, for Richard P.
Donoghue, United States Attorney for
the Eastern District of New York,
Brooklyn, NY.
Appeal from orders of the United States District Court for the Eastern
District of New York (Margo K. Brodie, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders are AFFIRMED in part,
VACATED in part, and the case is REMANDED with instructions.
The New York Times Company (the “Times”) appeals from (1) a November
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8, 2018 sealed order of the United States District Court for the Eastern District of
New York (Brodie, J.) sealing two portions of the transcript of a guilty plea hearing
as well as the sealing order itself, and (2) an April 4, 2019 order declining to unseal
the transcript and the November 8 sealing order. 1 We assume the parties’
familiarity with the underlying facts and the record of prior proceedings, to which
we refer only as necessary to explain our decision to affirm in part, vacate in part,
and remand with instructions.
In the underlying criminal matter, former Goldman Sachs employee
Timothy Leissner was charged by complaint, and later by information, with
violating the anti‐bribery and internal accounting controls provisions of the
Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd‐1 et seq., by engaging
in a scheme to misappropriate billions of dollars from a Malaysian state‐run
investment fund. For approximately five months after the criminal complaint
was filed in June 2018, the district court kept certain documents, docket entries,
and Leissner’s identity under seal. During this period, Leissner pleaded guilty to
the crimes charged in the information in a closed proceeding.
1The existence and general effect of the November 8, 2018 sealed order has been publicly
disclosed on the district court docket and in the parties’ briefs on appeal.
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On October 31, 2018, the district court unsealed many of the previously
sealed materials, including a minute entry reflecting Leissner’s guilty plea, as
requested by the government. Shortly thereafter, the Times filed a letter seeking
to unseal the entire plea transcript, and the government publicly filed a response
consenting to the unsealing of a proposed redacted version of the transcript for the
reasons set forth in a separately filed sealed letter. On November 8, 2018, the
district court entered an order on the docket granting in part and denying in part
the Times’s motion to unseal the plea transcript and directing the government to
publicly file its proposed redacted version of the plea transcript pursuant to a
separate sealed order. The next day, the government publicly filed the redacted
plea transcript.
On February 22, 2019, the Times filed a letter requesting that the district
court “review the continued partial sealing of the [plea] transcript” and “consider
unsealing its November 8 [sealing] order” as well. App’x 60–61. On April 4,
2019, after considering a sealed response from the government, the court declined
to unseal the unredacted plea transcript or the November 8, 2018 sealing order.
The Times then filed a motion for intervenor status, which the district court
granted. The district court also created a separate civil matter, 19–mc–1133
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(MKB), for filings related to the Times’s unsealing requests. On May 3, 2019, the
Times filed a timely notice of appeal from the April 4, 2019 order.
As an initial matter, we conclude that we have jurisdiction to review the
district court’s April 4, 2019 and November 8, 2018 sealing orders. With respect
to the April 4, 2019 order, our jurisdiction is premised on the collateral‐order
doctrine. See Schwartz v. City of New York, 57 F.3d 236, 237 (2d Cir. 1995); see also,
e.g., Doe v. Lerner, 688 F. App’x 49, 50 (2d Cir. 2017). Although the Times did not
file a notice of appeal from the district court’s November 8, 2018 sealed order
(despite knowing about the existence of that order from a separate public docket
entry), we have pendent appellate jurisdiction to review the November 8, 2018
order because it is “inextricably intertwined” with the issue of whether the district
court later erred in declining to unseal the plea hearing transcript or the November
8, 2018 sealed order itself. See Blue Ridge Invs., L.L.C. v. Republic of Argentina, 735
F.3d 72, 81 (2d Cir. 2013); Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356
F.3d 365, 371–72 (2d Cir. 2004).
As to the validity of the district court’s sealing orders, “we examine the
court’s factual findings for clear error, its legal determinations de novo, and its
ultimate decision to seal or unseal for abuse of discretion.” Brown v. Maxwell, 929
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F.3d 41, 47 (2d Cir. 2019) (internal quotation marks omitted). Under both the
common law and the First Amendment, there is a strong presumption of public
access to judicial documents, including the transcript of the plea proceeding and
the district court’s November 8, 2018 sealing order. See id.; Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006); United States v. Amodeo, 44 F.3d 141,
146 (2d Cir. 1995). “In light of this strong First Amendment presumption,
continued sealing of the documents may be justified only with specific, on‐the‐
record findings that sealing is necessary to preserve higher values and only if the
sealing order[s] [are] narrowly tailored to achieve that aim.” Brown, 929 F.3d at
47 (internal quotation marks omitted); see also id. at 47 n.13 (providing examples of
such “higher values”). Additionally, a district court’s order sealing certain
documents may itself be sealed to the extent that disclosure of the sealing order
would “reveal information entitled to remain confidential.” United States v.
Haller, 837 F.2d 84, 88 (2d Cir. 1988) (internal quotation marks omitted).
I. Redaction of Plea Hearing Transcript
The district court principally acted within its discretion in sealing
approximately six pages of the forty‐seven‐page plea transcript on November 8,
2018, and declining to unseal the transcript six months later, on April 4, 2019. In
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its November 8, 2018 order, the district court made specific and detailed factual
findings in support of its sealing decision. We discern no clear error in the court’s
findings, and we agree that the presumption in favor of public access to the
relatively small sealed portion of the plea transcript was overcome by higher
values recognized under our decisions in Brown, Lugosch, and related cases.
Although the district court did not repeat its specific findings when, on
April 4, 2019, it declined to unseal the unredacted plea transcript or the November
8, 2018 sealing order, the court expressly “considered the [Times’s] application and
the government’s [sealed] response.” App’x 4, 70. We note that, with the
passage of six months, the district court could have been more explicit by stating
that the circumstances at the time of its November 8, 2018 order had not materially
changed so as to warrant unsealing. See Brown, 929 F.3d at 47 (specific findings
are necessary to justify “continued sealing” (emphasis added) (quoting Lugosch, 435
F.3d at 121)); see also, e.g., United States v. Wolfson, 55 F.3d 58, 60 (2d Cir. 1995).
Nevertheless, like the district court, we have reviewed the government’s sealed
letter responding to the Times’s unsealing request and conclude that it provides
specific and detailed factual information that mainly supports the district court’s
decision to keep the unredacted plea transcript under seal. In these
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circumstances, we see no need to remand for the district court to further explain
its April 4, 2019 sealing decision; rather, we believe that the district court’s express
reliance on the government’s sealed letter, combined with its specific findings in
its prior sealing order, is sufficiently clear to satisfy our precedents.
Although we therefore largely affirm the district court’s sealing orders as
being within the court’s discretion, we conclude that the district court abused its
discretion to the limited extent that it sealed certain matters that were publicly
disclosed at the time that the district court issued its sealing orders. Accordingly,
we vacate the district court’s sealing orders in part and remand with instructions
to unredact, at a minimum, page 44, lines 23–25 and page 46, lines 4–7 of the plea
transcript. In so doing, however, we acknowledge that an evolving factual
situation can make the decision about whether to seal information challenging,
even where, as here, the district court acts diligently. In addition, we note that,
while this appeal was pending, the district court unsealed certain docket entries
and documents that may reveal information contained in the redacted portions of
the plea transcript. Accordingly, on remand the district should consider whether,
and to what extent, other redacted portions of the plea transcript may now be
unsealed in light of the court’s intervening unsealing order or other changed
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circumstances.
II. Sealing of November 8, 2018 Order
The Times also challenges the district court’s decision to seal the November
8, 2018 sealing order itself. While the government summarily maintains that the
district court did not abuse its discretion in sealing the entire November 8, 2018
sealing order, the government presently “has no objection to the filing of a
redacted version of the court’s six‐page order.” Appellee’s Br. at 36. Given that
the government bears the burden of demonstrating that sealing is warranted,
DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997), and since it
has now consented to the public filing of a redacted version of the November 8,
2018 order, we need not decide whether the district court abused its discretion in
sealing the entire order at the time it was issued. Thus, we remand for the district
court to publicly file a version of the November 8, 2018 order that unredacts at
least those portions of the order unopposed by the government, and as further
deemed appropriate by the court.
III. Conclusion
For the foregoing reasons, we mainly AFFIRM the district court’s
November 8, 2018 and April 4, 2019 orders to seal portions of the plea transcript,
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but VACATE these orders to the extent they seal the specific portions of the
transcript indicated above. We also REMAND with instructions to the district
court to publicly file a revised plea transcript and sealing order with redactions as
the district court deems appropriate and which are consistent with this summary
order. On remand, the Times may of course request that the district court unseal
other parts of the record, and we expect that the district court and government will
continue to independently examine whether, and to what extent, sealing in this
case is warranted in light of changing circumstances. See, e.g., In re Grand Jury
Subpoena, 103 F.3d 234, 242–43 (2d Cir. 1996).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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