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

2 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. 3 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

4 (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,

(2d Cir. 1995); see also,

e.g., Doe v. Lerner,

(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,

(2d Cir. 2013); Lamar Advert. of Penn, LLC v. Town of Orchard Park,

, 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

(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,

(2d Cir. 2006); United States v. Amodeo,

(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,

(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

6 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,

)); see also, e.g., United States v. Wolfson,

(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

7 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

8 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.,

(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,

9 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,

, 242–43 (2d Cir. 1996).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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