LEWIS A. KAPLAN, District Judge.
This matter involves motions to intervene for the purpose of seeking records related to this criminal case submitted by the National Collegiate Athletic Association ("NCAA") and Oath, Inc. ("Oath"). For the reasons explained below, the motions are denied.
In October 2018, following a jury trial, the defendants were convicted of conspiracy to commit, and the commission of, wire fraud relating to a corruption scheme involving NCAA Division I college basketball. In March 2019, the Court sentenced defendant James Gatto to a 9-month term of imprisonment and defendants Merl Code and Christian Dawkins each to a 6-month term of imprisonment. Shortly before sentencing, the NCAA submitted a motion to intervene for the purpose of obtaining materials related to the criminal case. Specifically, the NCAA seeks access to twenty-four exhibits marked for potential introduction at trial and the unredacted sentencing memorandum of James Gatto, along with its associated exhibits. The government opposes the NCAA motion on two grounds. First, it argues that the NCAA does not have a proper basis to intervene because it is a private entity seeking access to further its own regulatory function rather than to vindicate any public's right of access to the materials. Second, it argues that even if the NCAA did have a proper basis to intervene, it still would not be entitled to access the specific records at issue.
In June 2019, Oath submitted a similar motion to intervene, seeking access to twenty of the twenty-four proposed exhibits sought by the NCAA, and also to James Gatto's unredacted sentencing memorandum and accompanying exhibits. Oath operates a number of online properties including Yahoo Sports — a sports news website that provides news coverage of collegiate and professional sports. The government does not contest Oath's basis to intervene, given that it is a news organization seeking to vindicate the public's claimed right of access to the documents in question.
"The Supreme Court has recognized a qualified right `to inspect and copy judicial records and documents.'"
"Before any such common law right can attach ... a court must first conclude that the documents at issue are indeed `judicial documents.'"
The first issue is whether the requested documents constitute "judicial documents" to which the presumption of access applies. The documents requested by the proposed intervenors fall into the following categories: materials (1) offered into evidence but excluded by the Court at trial, (2) used to refresh a witness's recollection, or (3) discussed on the record but never moved into evidence. These documents consist of transcripts of wiretapped calls, text messages, emails and correspondence, financial records, and a document memorializing a witness's prior statements to the FBI.
The government argues that "none of the requested records, which consist principally of unadmitted exhibits and documents used to refresh a witness's recollection, constitute `judicial records' for which the presumptive right of access attaches."
"[T]he definition of a `judicial document' [] extend[s] to any material presented in a public session of court `relevant to the performance of the judicial function and useful in the judicial process' whether or not it was formally admitted."
In United States v. Graham,
More recently, the Second Circuit explained:
Of particular relevance to certain documents sought in this case, the Circuit went on to state that
However, in explaining that documents submitted to a court for its consideration in a summary judgment motion constitute judicial documents as a matter of law, the Circuit stated that this conclusion "relies on the general principle that parties may be assumed to have supported their papers with admissible evidence and non-frivolous arguments. Insofar as a district court has, through striking a filing, specifically found that assumption inapplicable, the categorical rule ... may not apply."
Of course, this Court excluded the proposed exhibits at trial precisely because it determined that they were inadmissable. If inadmissable evidence does not necessarily qualify as a judicial document when filed with a motion for summary judgment, it is reasonable to conclude that the same result might apply when sought to be introduced at trial. However, the Brown panel stated also that decisions respecting the "court's authority to oversee discovery and control the evidence introduced at trial" itself are exercises of judicial power.
The government argues that "there is some reason to doubt [that the proposed exhibits] even constitute `judicial documents'" because "[t]he Second Circuit has repeatedly restricted that term to those materials filed with the Court."
For the purposes of these motions, we assume, without deciding, that exhibits offered into evidence to which this Court made a substantive determination regarding their admissibility are judicial documents to which the presumptive right of access applies.
The same assumption, however, is not afforded to documents merely shown to witnesses or otherwise discussed in Court but not offered into evidence. We agree with the government that these documents were neither relevant to the performance of the judicial function nor useful in the judicial process.
The Second Circuit's decision in Newsday LLC v. County of Nassau
With respect to the exhibits offered in evidence at trial, we now "must determine the weight of th[e] presumption" of access attaching to them.
The presumption has been given great weight "where the requested documents had been introduced at trial ... or had otherwise been material to a court's disposition of a case on the merits."
The proposed intervenors argue that the decision whether to admit documents into evidence constitutes an adjudication as to the defendant's substantive legal rights, and that therefore, the documents enjoy a strong presumption of access. They argue that defendants "explicitly asked the Court to wield its Article III powers and permit them to show the exhibits to the jury" and that the documents, therefore were "presented to the court to invoke its powers or affect its decisions."
The government takes a narrower view with respect to what constitutes a determination of a litigant's substantive legal rights. It claims that many of the exhibits were excluded due to their "lack of probative value to any issue properly before the jury."
In United States v. Graham, the Second Circuit explained that "[t]he detention of criminal defendants pending trial is a quintessential exercise of a court's Article III judicial power, and the public has a legitimate interest in monitoring a court's use of that power."
In Brown v. Maxwell, when considering the weight of the presumption of access over filings "related to, inter alia, motions to compel testimony, to quash trial subpoena, and to exclude certain deposition testimony," the Circuit stated that:
As previously stated, the documents sought to be introduced into evidence, but not admitted by the Court, implicated an exercise of judicial power. We therefore assume for purposes of these motions that these documents are "subject to at least some presumption of access." As the Court's exercise of authority with respect to these materials is, however, "ancillary to the court's role in adjudicating a case," the weight of the presumption of access to these materials is diminished.
"Once the weight of the presumption is determined, a court must balance competing considerations against it."
[Paragraph redacted and filed in sealed unredacted version of this opinion.]
With regard to all other materials, the government argues that "[t]here is a strong privacy interest of third-parties that would be adversely impacted by release of the materials the NCAA seeks or the unsealing of the limited redactions in Gatto's sentencing submission."
"[T]he privacy interests of innocent third parties ... should weigh heavily in a court's balancing equation."
The government claims that the privacy interests of third-parties "weigh in favor of maintaining the materials under seal because: (i) the records sought are quintessentially private documents that include some of the most intimate forms of communication; (ii) the release of the records could result in potential harm or injury to third parties not involved in the instant criminal case or ancillary litigation; and (iii) the reliability of the information in the requested materials, which includes hearsay, speculation and rumor, also weighs against unsealing."
"In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public."
The government argues that the materials are "quintessentially private documents, and include some of the most intimate forms of communication, including phone calls (obtained pursuant to Title III wiretaps), text messages (obtained by grand jury subpoenas and search warrants), and emails (obtained through the same types of processes)."
The proposed intervenors claim that any privacy interests the third-parties have in many of these documents is diminished because their contents—including the names of the third-parties and their purported activities—were discussed elsewhere on the public record, and portions have already been widely disseminated in the media.
After considering the subject matter of the documents, "[t]he nature and degree of the injury must also be weighed."
The government argues that the NCAA seeks these materials for the purpose of investigating potential rule violations and taking enforcement action if warranted, which is "at core a commercial or private interest," and therefore subservient to the privacy interests of the third-parties. We do not consider the NCAA's actions to be, as the government suggests, akin to commercial competitors seeking advantage over rivals or using the courts in the aid of personal vendettas. But we acknowledge the potential harm that could befall third-parties as a result of the professed actions of the NCAA in requesting these documents. In any event, and irrespective of the NCAA's motives, the government concedes that Oath seeks the documents to vindicate the public's right of access to these materials.
In balancing the privacy interests of third parties,
In Amodeo II, the Court drew a distinction between unsealing different parts of a report that, on the one hand, contained unsworn accusations of "doubtful veracity" which "would circulate accusations that cannot be tested by the interested public," and on the other, material that contained "little unverifiable hearsay and no material that might be described as scandalous, unfounded, or speculative."
At bottom, the requested materials all share the common feature of implicating individuals other than the defendants in potential NCAA rule violations. The third-parties themselves are parties to some of the communications reflected in the documents. Most involve references to the conduct of other individuals not party to the communications. For example, DX 25T and DX 28T reflect transcribed communications of wiretapped calls between one of the defendants and a third party, which references the conduct of others. Exhibits DX 101, DX 102, DX 162, DX 199, DX 219 and DX 223 reflect text messages, many of which are between third parties and reference other individuals not involved in those discussions. Exhibits DX 1011, DX 1301, DX 1302 and DX 1313 are emails between or among one of the defendants and other individuals, which reference also third parties not involved in the discussions. DX 1958 is a letter written on university letterhead, purporting to copy two other individuals in its distribution. Unlike the other materials in question, this document appears to have been written and transmitted for an official university purpose, and does not involve private methods of communication. But in all cases, the third-parties referenced in these documents could be harmed by disclosure of the additional information not already reported in the media.
As previously mentioned, the materials relate to potential rule violations of third-parties not on trial in this action, which might be regarded by certain segments of the public as scandalous conduct. Disclosure carries the risk of significant reputational and professional repercussions for those referenced in the documents. That some information relating to the documents in question already has been discussed on the public record or reported in the media does not mean that the third-parties concerned have lost any remaining privacy interests in their contents.
The Court has reviewed also the redactions in the Gatto sentencing memorandum and its accompanying exhibits. These redactions likewise pertain to alleged NCAA rule violations on the part of individuals other than the defendants on trial.
Just as documents reflecting potential rule violations of other individuals not on trial were irrelevant to the criminal trial, these arguments were immaterial in determining the sentence that the defendants received. This information therefore played a negligible if any role in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts is minimal. As such, the privacy interests of the third-parties outweighs the public's right of access to these materials.
In sum, the Court has considered the privacy interests of the third-parties referenced in the documents sought for admission into evidence at trial and in the redacted portions of James Gatto's sentencing memorandum in relation to the weight of presumption of public access, and concludes that disclosure is unwarranted.
"In addition to the common law right of access, it is well established that the public and the press have a `qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.'"
"A court's conclusion that a qualified First Amendment right of access to certain judicial documents exists does not end the inquiry."
To begin, access to these documents does not derive from, nor are they a necessary corollary of, the capacity to attend the trial. As the government points out, these documents were not shown to those who attended the proceeding. The trial transcript conveys all relevant information that those in attendance knew of the information they contained. Second, the proposed intervenors provide no authority for the proposition that any of the proposed exhibits are of the type that historically have been open to the press. Nor does public access to documents ruled inadmissable play a positive role in the functioning of the criminal trial.
Finally, while Brown v. Maxwell supports the proposition that documents sought to be admitted into evidence are entitled to some diminished degree of the common law presumption of access, the Brown Court did not so find with respect to the qualified First Amendment right of access. It noted specifically that documents submitted to a court for its consideration in a summary judgment motion are judicial documents "to which a strong presumption of access attaches, under both the common law and the First Amendment."
For the foregoing reasons, the motions of the NCAA and Oath to intervene for the purpose of obtaining the requested materials are denied.
SO ORDERED.