D.C.Cir.: SW materials likely should be disclosed now that SEC revealed investigation

The district court declined to release search warrant materials, but the SEC revealed the investigation. Remanded to reconsider disclosure. L.A. Times Communs., LLC v. United States (In re L.A. Times Communs. LLC), 2022 U.S. App. LEXIS 7093 (D.C.Cir. Mar. 18, 2022):

This court reviews the district court’s balancing of the Hubbard factors for abuse of discretion. E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1410, 321 U.S. App. D.C. 243 (D.C. Cir. 1996). Although its discretion is “wide,” the district court must provide a “full explanation” for its decision, detailed enough to permit “review [of] the district court’s exercise of its discretion.” Id. Because the SEC’s parallel investigation released details after the district court had denied the L.A. Times’ motions, the district court should on remand re-evaluate and re-weigh the Hubbard factors to determine whether it is still appropriate to seal the hypothesized search warrant materials and the government’s opposition memorandum. To the extent the hypothesized search warrant materials exist and any materials contain details that were not public when the district court denied L.A. Times’ motion to unseal, the district court should reconsider whether sealing is still justified in view of the Hubbard factors or whether redaction would be an appropriate alternative.

In addition, the district court’s Hubbard analysis is flawed in ways that are independent of the SEC disclosures and should be reconsidered on remand. First, the district court’s analysis of the first Hubbard factor — the need for public access — falls short of the “full explanation” expected to enable this court to review the district court’s reasoning. Nat’l Children’s Ctr., 98 F.3d at 1410. Although the court acknowledges the possible existence of a public interest in disclosure, 2021 Mem. Op. at 9 (noting that “the various privacy and government interests … outweigh the public’s interest in disclosure”), its opinion does not discuss either the nature or scope of that interest or the powerful public interest in learning of a sitting Senator’s potential violation of insider-trading laws based on information acquired in his official capacity. Without further elaboration on the nature of the public interest that the district court found to be outweighed by the privacy and government interests, this court will be unable to determine whether the district court acted properly within its discretion.

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