Three media organizations have filed an objection to a federal judge’s order to veil in sweeping secrecy documents and evidence in the Bundy case. Intervenor objects
Earlier, U.S. Magistrate Judge Peggy Leen ordered all materials produced by the government in discovery in the case — grand jury transcripts, agency reports, witness statements, memoranda of interviews, documents and objects produced by the government — are to be confidential and anything filed court relating to these are to be automatically filed under seal.
She said this was being done to protect witnesses, victims, law enforcement, prosecutors and other government officials from being intimidated — mostly based on vague 2-year-old Internet postings that suggested certain people might come to harm.
Attorney Maggie McLetchie — who represents the Las Vegas Review-Journal newspaper, The Associated Press and Battle Born Media, which publishes a half dozen weekly newspapers across the state — on Friday filed the 22-page objection, saying the secrecy order is excessive and unnecessary.
The Bundy case grows out of the April 2014 standoff between Bureau of Land Management law enforcement and armed supporters of Bunkerville rancher Cliven Bundy. Bundy had failed to pay grazing fees for 20 years and the BLM was attempting to roundup his cattle. The 19 defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison.
The BLM eventually released the cattle rather than risk bloodshed.
McLetchie argues (specific cites omitted):
The Magistrate Judge noted that public access to discovery materials is more limited than to court proceedings. … However, in allowing the materials deemed “Confidential” to be automatically filed under seal, the Court’s Protective Order essentially misapplied the lesser standard for access to criminal discovery to judicial filing. The law of this circuit and the common law “start with a strong presumption in favor of access to court records.” … Given this presumption of public access, the Ninth Circuit “requires a party to make a particularized showing of good cause for each document it seeks to file under seal.”
McLetchie notes that the rambling and ranting social media postings cited by the government as a rationale for secrecy are free speech, protected expression of frustration and not actual threats.
These included: “EVERYONE PLEASE CALL … They need to know that they are doing is NOT right and that we notices [sic] it and we are a shamed [sic] of them!” and “Sounds like to solve the problem a lqnd [sic] owner will, have to take out an AR 10 and put a bullet in -head to save the other land owners to stop this, if I had land. i will now, kniw [sic] who to shoot first….”
Rather than close off everything, the attorney suggests identifying information could be redacted.
Indeed, the magistrate judge’s protective order subverts longstanding presumptions that (1) court records are presumptively public, and (2) depriving the public of access to public records requires a careful balancing of the private and public interests at stake. Instead, with little in the way of good cause to support a protective order, the magistrate judge has mandated that all confidential documents attached to motions and pleadings must be filed under seal without requiring the filing party to show why sealing is necessary. This runs contrary to the Ninth Circuit and this Court’s law, and should not be the standard for filing documents and supporting discovery in this case. Instead, this Court should follow the guidance of the Ninth Circuit and require parties to establish that submitting discovery documents in a public filing will result in a specific, particularized harm. In addition, the party seeking to file discovery documents under seal should be required to demonstrate that alternatives to sealing such as redacting identifying information would not suffice to address the government and the magistrate judge’s concerns.
She also notes that in a recent Nevada case Magistrate Judge George Foley recently ruled that the party seeking a protective order in a criminal case must bear the burden of showing good cause and a showing of specific harm.
The public has a right to see whether justice is done from now until and through the trial scheduled for next February. Meanwhile, all the defendants are being held without bail.