UNITED STATES OF AMERICA v. MAURICE FOSTER, No. 09-1248.

EASTERBROOK, Chief Judge

Information that affects the disposition of litigation belongs in the public record unless a statute or privilege justifies nondisclosure.

This court explained in Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544, 545–46 (7th Cir. 2002), that "[s]ecrecy is fine at the discovery stage, before the material enters the judicial record. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality. See, e.g., Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).

Information transmitted to the court of appeals is presumptively public because the appellate record normally is vital to the case's outcome. Agreements that were appropriate at the discovery stage are no longer appropriate for the few documents that determine the resolution of an appeal, so any claim of secrecy must be reviewed independently in this court. See this circuit's Operating Procedure 10. See also, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).

Motions under Operating Procedure 10 that propose sealing documents in the appellate record are presented to the motions judge.

I have consolidated for decision two such motions, resolving them in a published decision to reiterate the criteria of Baxter International-and to remind counsel that it is often better to exclude the documents from the appellate record than to analyze at length the reasons why they should or should not be sealed.

The first appeal is United States v. Foster, No. 09-1248, a criminal prosecution commenced almost 15 years ago. After the Sentencing Commission lowered the guideline ranges for crack-cocaine offenses, and made that change retroactive, Foster asked the district judge to reduce his sentence. The district court granted the motion, cutting Foster's sentence from 360 months to 324 months. Foster then filed a notice of appeal to argue that the reduction should have been greater. The district court transmitted to the court of appeals a considerable volume of materials that had been filed in the 1990s, before the jury's verdict and the 360-month sentence.

Thirty-four of these items have been maintained under seal in the district court. The clerk's office notified counsel that they would be opened to the public under Operating Procedure 10 unless an appropriate motion were made and granted.

The United States Attorney filed a motion to maintain the secrecy, but the motion did not give any reasons; indeed, it suggested that counsel for the United States had no idea what was in the sealed envelopes and did not plan to inquire. That motion, egregiously deficient under this circuit's precedent, was denied, though without prejudice. The order informed counsel that any future motion must meet the standards of Baxter International.

Extra time to file a proper motion was sought and granted. The extended deadline passed without a motion. Four days later a motion arrived, together with a motion to file instanter. The justification for lateness-that the Assistant United States Attorney is busy-is inadequate. The motion does not mention that both Baxter International and Union Oil disapproved any general "privacy" rationale for keeping documents confidential.

Statutes, yes; privileges, yes; trade secrets, yes; risk that disclosure would lead to retaliation against an informant, yes; a witness's or litigant's preference for secrecy, no. The law could not be clearer. Yet the motion essentially asks the court to operate in a law-free zone. To call the performance of the United States Attorney's Office in this case a disappointment would be a gross understatement (hehehehe ed.).

he second appeal is Milam v. Dominick's Finer Foods, Inc., No. 09-1686, a civil suit under the Fair Labor Standards Act. Plaintiffs ask us to maintain the affidavit under seal, because (they say) it "would potentially cause embarrass-ment and affect [counsel's] personal and professional reputation by disclosing personal matters".

Rule 60(b)(1) permits a judgment to be reopened because of "excusable neglect". Just what the "neglect" entailed, and why it was "excusable," are questions in which the public has a legitimate interest when they underlie a judicial decision. See, e.g., Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993). If the nature of the neglect reflects poorly on counsel, that supports disclosure rather than confidentiality: a lawyer's clients (current and future) are entitled to know what sort of error or other shortcoming led a district court to enter judgment against people he represents.

A truck driver's accident record is a legitimate subject of inquiry by a prospective employer; just so with a lawyer's litigation record, including litigation lost (or almost lost) because of counsel's misconduct. A tenor who can no longer hit high C can't conceal that fact from the public, and a lawyer who has lost focus on his clients' welfare likewise must face exposure. The legal system's goal is to protect the rights of litigants, not to safeguard the interests of lawyers.

Plaintiffs in Milam say that the grant of relief under Rule 60(b) is not an issue on appeal. If that is so, then the affidavit need not be in the appellate record, and it is unnecessary for me to explore whether some privilege, or another reason omitted from the motion, might justify continued confidentiality. Appellants ask me to order the sealed affidavit returned to the district court without ruling on the propriety of its sealing. Before doing this, however, I want to hear from appellees. Appellees will have ten days to address this issue. If appellees inform me that they plan to challenge the district judge's Rule 60 decision, appellants may file a response within seven days.

I do not understand why the United States failed to propose a similar disposition in Foster. None of the 34 sealed documents has any apparent bearing on the appellate issues. I give the parties ten days to file memoranda addressing the question whether the 34 sealed documents should be returned to the district court, avoiding any need for me to decide whether, if they remain in the appellate record, they must be opened to public view.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

This entry was posted in Press Releases. Bookmark the permalink.