Opinion
15-cr-385 (AJN)
05-18-2016
United States of America, v. Joseph Dwyer, Defendant.
ORDER :
On May 13, 2016, Defendant Joseph Dwyer delivered a hard copy of his sentencing submission to chambers. Pursuant to this Court's May 16, 2016 order, Dwyer subsequently filed a copy of that submission on ECF. See Dkt. No. 92. The publicly filed version of his sentencing submission contains several redactions. Along with his sentencing submission, Dwyer has filed many letters of support. Several of those letters were not filed on ECF, and Dwyer has expressly requested that the Court file two of them under seal. Dwyer has also submitted an ex parte application to file one additional sentencing letter under seal. Consistent with this Court's regular practice, the Court has reviewed all of Dwyer's proposed redactions and sealing requests to assess their compliance with the Court's Individual Practices in Criminal Cases and the law in this circuit. The Court addresses each of Dwyer's filings in turn.
A. Sentencing Submission
As an initial matter, the redactions in Dwyer's sentencing submission exceed the scope of what is permitted by Rule 8.D of the Court's Individual Practices, and Dwyer accordingly should have submitted an application to chambers to request the redactions. More importantly, the Court's preliminary conclusion is that the redactions fail to comply with the Second Circuit's decision in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006), which requires that any redactions be "necessary to preserve higher values" and "narrowly tailored to achieve that aim." The redacted information does not "jeopardize[e] ongoing or future investigations" or "identif[y] the target, subject or status of a particular government investigation." United States v. Milken, 780 F. Supp. 123, 127 (S.D.N.Y. 1991) (emphasis omitted). Nor does the information implicate other "law enforcement interests [that] are routinely accepted as higher values," such as "the protection of law enforcement techniques and procedures; the protection of the confidentiality of sources; the safety of witnesses and police officers; [and] the privacy and reputation interests of those involved in an investigation." United States v. Strevell, No. 05-CR-477 (GLS), 2009 WL 577910, at *4 (N.D.N.Y. Mar. 4, 2009). The redactions do not include medical information about third parties. See United States v. King, No. 10-CR-122 (JGK), 2012 WL 2196674, at *2-3 (S.D.N.Y. June 15, 2012) (emphasizing the "compelling" need to protect the privacy of third-party medical information but declining to redact defendant-specific information "relat[ing] to medical conditions that the Court has been asked to consider in arriving at the sentence in this case"). And of course, "[t]he mere fact that judicial records may reveal potentially embarrassing information is not in itself sufficient reason to block public access." United States v. Martoma, No. 12-CR-973 (PGG), 2014 WL 164181, at *5 (S.D.N.Y. Jan. 9, 2014) (quoting Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998)). If no further showing can be made in support of these redactions, counsel shall file an unredacted copy of Dwyer's sentencing submission on ECF by noon on May 19, 2016. If counsel believes a further showing can be made, then the Court will hear at sentencing from defense counsel and the Government as to whether there are grounds for redacting any of the material in Dwyer's submission.
B. Letters
1. No Redaction Request Made
Dwyer has submitted many letters of support from friends, family, and colleagues. Several of those letters were submitted in hard copy, but were not filed on ECF and were not accompanied by any request for redaction. Those letters are from Bobbi C. Sternheim, Susan V. Tipograph, Celia A. Gordon, and Anne Hall. Additionally, two pages are missing from the ECF-filed version of Janet Dwyer's letter. See Dkt. No. 92, Ex. 6. Dwyer is ORDERED to file copies of those letters, including the two missing pages from Janet Dwyer's letter, on ECF by noon on May 19, 2016.
2. Redaction Request Made
Additionally, the Court has received via email a request to file two letters from Dwyer's family members under seal. The Court notes, however, that it does not appear from the email the Court received or the accompanying letter from Dwyer's counsel, Mr. Oksenhendler, that the Government has received a copy of these two letters. To the extent he has not done so, counsel is therefore ORDERED to serve a copy of these letters from Dwyer's family members on the Government by noon on May 19, 2016. The Court has reviewed the two letters and is likely to conclude that Dwyer has not made the showing of "higher values" necessary to justify filing those letters under seal. See Lugosch, 435 F.3d a 124. As with Dwyer's sentencing submission, if no further showing can be made in support of the request for sealing, counsel shall file the two letters on ECF by noon on May 19, 2016. But if counsel believes a further showing can be made, then the Court will hear at sentencing from defense counsel and the Government as to the sealing request.
3. Ex Parte Letter
Finally, the Court has received via email an ex parte request from Dwyer to file a sentencing letter under seal and to not share that letter with the Government. Dwyer has not shown a sufficient basis for proceeding ex parte, and he is therefore ORDERED to serve a copy of the letter on the Government by noon on May 19, 2016. As with the other materials discussed in this order, the Court has reviewed this final letter and preliminarily concludes that there are not grounds for filing it under seal. See In re Application to Unseal 98 Cr. 1101(ILG), 891 F. Supp. 2d 296, 300 (E.D.N.Y. 2012) (declining to seal information that had "already been publicly revealed" and noting that "the cat is out of the bag, the genie is out of the bottle"); see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004) ("[H]owever confidential [the information] may have been beforehand, subsequent to publication it was confidential no longer."). If no further showing can be made in support of the request for sealing, counsel shall file the letter on ECF by noon on May 19, 2016. But if counsel believes a further showing can be made, then the Court will hear at sentencing from defense counsel and the Government as to the sealing request.
SO ORDERED. Dated: May 18, 2016
New York, New York
/s/_________
ALISON J. NATHAN
United States District Judge