Nyt Letter

8/13/2019 Nyt Letter

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA, 12 CR 185 LAP)

ORDER

v.

JEREMY H IvIMOND

Defendan t .

--X

LORETTA A. PRESKA, f U n i t e d S t a t e s D i s t r i c t Judge :

The C o u r t r e c e a l e t t e r d a t e d on November 5 2013

( a t t a c h e d ) from David E. McCraw Vice P r e s i d e n t and A s s i s t a n t

Genera l Counsel o f t h e New York Times Company i n which t h e

Times s e e k s t o move t o i n t e r v e n e i n t h i s a c t i o n f o r t h e l i m i t e d

p u r p o s e o f s e e k i n g t h e u n s e a l i n g o f r e d a c t e d p o r t i o n s o f

D e f e n d a n t s s e n t e n c i n g memorandum and m a t e r i a l s on f i l e w i t h t h e

s e n t e n c i n g m a t e r i a l s . C o n s i d e r i n g t h e l e t t e r as a mot ion t o

u n s e a l , Defendan t s h a l l show cause a t t h e s e n t e n c i h e a r i n g on

r 15 2013 why t h e d p o r t i o n o f D e f e n d a n t s

s e n t e n c memorandum 1 remain s e a l

Case 1:12-cr-00185-LAP Document 61 Filed 11/14/13 Page 1 of 5


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Docket N o . 8 a s e a l e d document i n t h i s m a t t e r i s h e r e b y

u n s e a l e d . uocke t No. 14 r sea cument i n i s

m a t t e r s h a l l remain s e a l b e c a u s e t i s a r e q u e s t by f e n s e

c o u n s e l p u r s u a n t t o t h e Cr imina l J u s t i c e Act f o r c e r t a i n

r e s o u r c e s connec ted w i t h f e n s e .

SO ORDEREu:

Dated: Kew York New YorkNovember 14 2013

_ ~ o dLORETT A PRESKA

Ch f ~ i t e dS t a t e s s t r i c t



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The NewYorkTimesCompany

David McCrawVice Preeldent andA 5 8 s ~ n tGeneral Counsel

November 5, 2013 620 SIft AvenueNiitwVork NV 10018

t8l212.1'566-4001fax 212.SSS 4634

mccntwOnyt/mes.oom

VIA FACSIMILE

The Honorable Loretta A. Preska

United States District CourtSouthern District of New York500 Pearl St.New York. NY 10007

Re: United States v. Hammond (12 Cr. 185 (LAP

Dear Judge Preaka:

I write on behalf of The New York Times Company ( The Times ) seeking a pre-motionconference. The Times seeks to move to intervene in this action for the Hmited purpose of seekingthe unsealing of redacted portions of Defendant' 8 sentencing memorandum and materials filed withit (the 'Sentencing Materials ). (ECF No. 56.) We believe that materials have been redacted inviolation of the publicts right of access under the First Amendment and federal common law_

Right to Intervene: There is a qualified First Amendment and common law right held by the publicto have access to judicial documents and proceedings. See, e.g . Richmond Newspapers Inc. v.Virginia 448 U.S. 555, 572(1980) (First Amendment right t proceedings); Lugosch v yramid Co435 F.3d i 10. 119-20 (2d Cir. 2006) (constitutional and common law right to judicial documents).The Second Circuit has recognized a motion t intervene as the procedurally proper device forpwposes of protecting the right of access. See, e.g. United t a t e ~v. King 140 F.3d 76, 77 (2d Cir.1998 ; United States v. Haller 837 F.2d 84. 85 (2d Cir. 1988).

FIl'St Amendment Right of Access: Materials submitted to a Court pertaining to plea agreementsand sentencing. like sentencing proceedings themselves. are presumptively open under the FirstAmendment. See United States v. Alcantara. 396 F.3d 189, 197-98 (2d Cir. 2005) (sentencingpro'Ceedings); HaUer. 837 F.2d at 86 (plea agreement); United States v. King. No. lQ-Cr-122 (JGK),2012 U.S. Dist. LBXIS 83634, at *4 .6 (S.D.N.Y. June 15,2012) (sentencing submissions). TheFirst Amendment right attaches when access has both historic roots and wi1110gically playasignificant positive role in the functioning of the judicial process. Press-Enterprise Co. v. SuperiorCourt QfCalifomia. 478 U.S. 1.8 (1986).

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As the Second Circuit sald in Alcantara. 396 F.3d at 19.8:

Members of the public have a strong interest in attending sentencing proceedings, andtheir attendance is important to the proper functioning of the judicial proceedings.Sentencing proceedings are of paramount importance to friends and family membersof the defendant being sentenced. The proceedings are also extremely significant tovictims of crimes, to family members of victims, and to members of the communityin which the crime occurred

The Court made clear that its holding applied to documents as well. Id. at 197 ( other circuitshave held that the public and press have a right of access to various documents filed in connection

with sentencing proceedings, These holdings are persuasive. ).

Under r ~ s s - E n t ~ r p r i s esealing is pennitted only if a court finds that the sealing is necessary topreserve higher values and only if the sealing order is narrowly tailored to achieve that aim.Lugosch, 435 F.ld at 124. The party seeking sealing has the burden of proof on that constitutionaltest. ld. at 125-26; see also United States v. Amodeo


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Tbe Documents a t Issue: Redactions in the Sentenc ing Materials fall into two broad categories.First, Defendant has redacted materials submitted by third parties urging the Court to be lenient.

S e e ~e.g. Def.s Sentencing Mem., ECF No. 56, at 23.) There is no apparent reason for the sealingof infonnation that is already in the hands of members of the public and being used by Defendant tosway the Court in its exercise of its powers under Article ill especially in light of the public's rightand need to monitor and understand the argllments being m de to the Court at this critical junctu re inthe criminal process.

Second, Defendant has redacted other material that appears to have been obtained in discovery andmay have been subject to the protective order in this matter (ECF No. 11. as modified by ECF No.26 . See, e.g . Ex. H. ECF No. 56 (cover letter and attachments).) The existence of a protective

order obviously does not trump any access right that the public has under the Constitution and is notdispositive under the common law. Lugosch. 435 F.3d at 125-26 (confidentiality orders i ssued indiscovery should not impair public access to judicial documents). Lown v Salvation Anny Inc. No.04 Civ. 01562 (SHS), 2012 U.S, Dist.LEXIS 148701, at *3 (S.D.N.Y. Oct. 12,2012) (access todocuments filed with the court is governed by constitutional and common law standards set out inLugosch even though the documents were designated confidential under court's earlier protectiveorder for discovery). Instead, now that the materials arejudicial documents and no longer unfileddiscovery, the burden is on the parties to demonstrate on the record that sealing is necessary topreserve higher values," Lugosck. 435 F.3d at 124. '

bnportantly. the sealing of judicial documents must be narrowly tailored. Id. Wholesale sealing ofdocuments is disfavored when targeted redaction can protect a countervailing interest. See reNew York Times Co. 828 F.2d 110, 116 (2d Cir. 1987). To the extent that the parties are able tojustify some part of the sealing here. the remainder of the material should be released to the public.

Accordingly, we sk that the Court set a schedule for motion practice, with the parties required todemonstrate with particularity why specific parts of the Sentencing Materials should be sealed andThe Times being given an opportunity to respond to their arguments.

We th nk the Court for its consideration of this matter.

Respectfully submitted.

David E. McCraw

cc: Rosemary Nidiry. AUSASarah Kunstler. Esq. (both by electronic delivery)

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