In United States v. Doe, --- F.3d ---, No. 15-50259 (9th Cir. 2017), the Ninth Circuit reversed the district court’s order denying the
defendant’s motion to seal all documents relating to, or
disclosing the existence of, the government’s motion to reduce the defendant’s sentence for
substantial assistance in the prosecution of other offenders.
The opinion concludes that disclosing such information creates a genuine risk of harm to the cooperator and can undermine ongoing investigations.
However, the opinion also assumes without deciding that the public has a qualified First Amendment right of access to court documents
and proceedings related to cooperation (which was rebutted in this case).
The upshot is that district courts must decide motions to
seal or redact on a case-by-case basis. Helpfully, the opinion contains substantial ammunition for showing that (1) sealing serves a compelling interest; (2) there is
a substantial probability that, in the absence of sealing, this
compelling interest would be harmed; and (3) there are no
alternatives to sealing that would adequately protect the
compelling interest.”
We should use this decision to make that showing.
