D.D.C.: Michael Cohen SW materials ordered released

“The Associated Press, Cable News Network, Inc., The New York Times Company, POLITICO LLC, and WP Co., LLC, d/b/a the Washington Post (collectively, the ‘Media Coalition’) request an order unsealing ‘warrants, applications, supporting affidavits, and returns relating to all search, seizure or Stored Communications Act warrants’ (‘Warrant Materials’) filed in this Court relevant to the prosecution of Michael D. Cohen, the former personal attorney for President Donald Trump. See Media Coalition’s Mot. for Public Access to Certain Sealed Warrant Materials (‘Media Coalition’s Mot.’) at 1, ECF No. 1; Mem. Supp. Media Coalition’s Mot. (‘Media Coalition’s Mem.’) at 1, ECF No. 1-1. The government ‘does not oppose the [Media Coalition’s] request for unsealing of the warrants, subject to those redactions necessary to protect ongoing law enforcement matters and respect privacy concerns.’ Gov’t’s Resp. to Media Coalition’s Mot. (‘Gov’t’s Resp.’) at 2, ECF No. 7. For his part, Cohen has interposed no objection. For the reasons set out below, the Media Coalition’s Motion is granted.” In re Access to Certain Sealed Warrant Materials, 2019 U.S. Dist. LEXIS 85285 (D.D.C. May 21, 2019):

Upon consideration of the government’s in camera submission, release of the Warrant Materials with the government’s proposed redactions is justified under the common law right of access to judicial records. Indeed, a “common law presumption of access” attaches to “SCA orders and related materials.” Matter of Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 300 F. Supp. 3d 61, 92 (D.D.C. 2018) (citing United States v. Appelbaum (In re United States), 707 F.3d 283, 291 (4th Cir. 2013)). The government may rebut this presumption, however, “by showing ‘competing interests’ that compel a ‘conclu[sion] that justice [ ] requires’ maintaining a seal.” Id. (quoting Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017)).

Here, the government’s proposed redactions are consistent with those authorized by the S.D.N.Y., protective of the competing interests in the government’s ongoing investigation and third-party privacy interests. These competing interests are strong enough to counterbalance the public’s common law right of access to the Warrant Materials. See United States v. Hubbard, 650 F.2d 293, 315-16 & n.84, 208 U.S. App. D.C. 399 (D.C. Cir. 1980) (explaining that “the tradition of access is not without its time-honored exceptions,” and noting, for example, that “affidavits submitted in support of search warrants are sometimes sealed to protect the secrecy of an ongoing criminal investigation”); see also Metlife, Inc., 865 F.3d at 665 (stating that the presumption of public access “may be outweighed in certain cases by competing interests,” such as “privacy interests asserted”). Accordingly, the government shall file, by May 22, 2019, the redacted versions of the Warrant Materials on the docket of this Miscellaneous action.

Second, the Media Coalition requests a “sunlight date” three months from the date of this Memorandum and Order, at which time sealed portions of the Warrant Materials will become public, “absent a showing by the Government or another interested party that continued sealing is justified.” Media Coalition’s Mem. at 19. The government “has no objection” to submitting a status report on the need for continued sealing on “whatever” date “the Court deems appropriate.” Gov’t’s Resp. at 4. As a result, the government shall submit, by August 22, 2019, a status report explaining any need for continued sealing of any portion of the Warrant Materials.

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