Media object to sweeping Bundy secrecy order

Bundy standoff. (Reuters photo)

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.

McLetchie concludes:

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.

25 comments on “Media object to sweeping Bundy secrecy order

  1. The Scarlet Pimpernel says:

    Explain to me how this secrecy can be legal, given that this whole circus isn’t a matter of national security.

  2. Someone, somewhere, somehow might have their feelings hurt and we can’t have that.

  3. It’s a major effort to CYA…of the BLM, Fish and Wildlife Service, the US Attorneys, and the DOJ…IMHO.

  4. Patrick says:

    All intervenors ought to have to pay all costs associated with their frivolous actions. Surely, the parties involved are among those who constantly complain about the cost of “big government” and now that they are forcing the government to spend money (in a frivolous expenditure of time and money) they ought to be volunteering to pay the costs “right”?

  5. Oh that frivolous First Amendment.

  6. Patrick says:

    Nah, that frivolous intervenor. You know Thomas “the Las Vegas paper”.

  7. Rincon says:

    We’ve been through this before. Most would agree to protect witnesses before a trial if jihad groups were considered threatening. Since right wing terrorists kill more people in this country than the Muslim kind, it would be consistent to protect witnesses from them also.

  8. Rincon says:

    Come to think of it, since right wingers kill more people, shouldn’t they be treated the same way that they advocate treating Muslims?

  9. Steve says:

    Rincon, here’s a fact check for you. It checks claims made about Democrats being the killers.
    It finds most are unsubstantiated and cannot be attributed to one side or the other.

    Here is the conclusion:
    “Looking at the profiles of all these shooters brings up many common characteristics. Loner, mental illness, violent outbursts and general creepiness. Political ideology is generally non-existent or incoherent, particularly among the mass shooters. Regardless of one’s view on politics or gun control, associating these killers with the Democratic Party (or conversely, with Republicans or Tea Party ideology) is a low blow that’s not backed up by facts, and the argument should be removed from any rational discourse.”

    So put that in your pipe and smoke it.

  10. Patrick says:


    Any thoughts on whether the RJ ought to intervene in this case? I mean, no national security interests involved and the government denying access to the public in what is surely a matter of public interest?

  11. Patrick says:

    You think they will?

  12. Steve says:

    Difference from Bundy is Sterling isn’t in court yet.
    Bundy’s trial should be public but is being kept secret. The Sterling case should be public once at trial but while under investigation, the investigators need to keep it under wraps to keep potential guilty parties from getting the idea they are about to be arrested.
    Once in court, all the evidence should be public. In all cases.

  13. Patrick says:

    Surely this was a matter of public concern? And because the words are already public, I wonder why the lawyers for the RJ didn’t deem it necessary to intervene?

    I’m sure it was an oversight.

  14. Steve says:

    Isn’t this another case of trying to get the info public before the trial?
    Once at trial, evidence introduced becomes public….not before.

    But you are supposed to know that, right?

  15. Patrick says:

    Just out of curiosity Steve; precisely what was the date that the Bundy trial, or the case where the RJ sought to receive discovery, started?

  16. Steve says:


  17. Bill says:

    Having dealt with federal officials represented by federal attorneys from the big cities, I wold opine that they are motivated by a fear of right wing violence. I have seen an almost paranoid concern about this. The burden is and should be on the party seeking the non-disclosure. Careful redaction should handle most legitimate concerns.

  18. Rincon says:

    Sounds to me like you’re the one deflecting, Steve. If you apply a different standard to the two cases, then you would be in the wrong. I believe Patrick is just trying to establish whether or not that applies.

    The officials have reason to be just as paranoid about right wing extremists as they are about Muslim extremists. They are equally dangerous.

  19. Steve says:

    Another deflection.

    Rincon, the argument is over items in discovery. Not during the investigation…as you seem to want to make the case.

    Deflection is attempted by changing the direction of the discussion, in this attempt from one about discovery to one of when that discovery process began….it serves zero purpose other than deflection.

  20. Patrick says:

    Rincon: absolutely correct!

    Steve tried to say that the difference in result (discovery vs no discovery) was due to one matter being “in trial” and the other matter not.

    Course as you know, NEITHER case is at trial, and so the distinction on that basis to deny or allow discovery didn’t exist.

  21. Steve says:

    The investigation is OVER in the Bundy case….but you knew that….Right?

    The argument is about discovery, during the coming trial….the cases you mentioned are all still under investigation, which you also know….

    But that doesn’t matter when trying to deflect…..

  22. Rincon says:

    The Constitution guarantees a public trial, not a public discovery.

  23. Depends on the definition of a trial.

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