Public Right of Access to Court Records

There is a right to have and keep the court dockets open to the public. What happens when someone wants to foreclose that right? "Plaintiff Noah Cavender initiated this action against the United States Merchant Marine Academy on April 29, 2020" and later sought to withdraw the complaint as it might hurt his employment opportunities for the future. We leave the facts there (for the Plaintiff's sake) but mention this fantastic case that highlights a few concepts for which the public should know:

There exists both a common law right of public access to judicial documents, which "is firmly rooted in our nation's history," and a "qualified First Amendment right of access to certain judicial documents." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (citations omitted). The framework provided by the Second Circuit in Lugosch is designed, in part, "to vindicate the First Amendment and common-law presumptions of access without requiring members of the public to intervene—a procedure that is costly and, for a layperson, arcane." DXC Tech. Co. v. Hewlett Packard Enter. Co., No. 19-CV-7954 (VEC), 2019 WL 4621938, at *2 (S.D.N.Y. Sept. 11, 2019).


"Circuit precedent further establishes that the public's presumptive right of access to judicial records is also independently secured by the First Amendment." Mirlis, 952 F.3d at 58 n.5 (citation omitted). The Second Circuit has

articulated two different approaches for determining whether the public and the press should receive First Amendment protection in their attempts to access certain judicial documents. The first approach considers experience and logic: that is, whether the documents have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question. The second approach considers the extent to which the judicial documents are derived from or are a necessary corollary of the capacity to attend the relevant proceedings.

Bernstein, 814 F.3d at 141 (internal quotation marks and citations omitted).


While the case is terminated, the record is left open. Why? Even if both parties want it sealed, the public has the right to know.


The public interest is based on the citizenry's right to "keep a watchful eye" on the workings of federal courts and the federal courts' need for public accountability. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570 (1978). Without public and professional monitoring, there can be "no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings." United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). Thus, under the common law, judicial documents have been presumptively subject to public inspection. See United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995).


A "judicial document" is one that is "relevant to the performance of the judicial function and useful in the judicial process," Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 139 (2d Cir. 2016) (quoting Lugosch, 435 F.3d at 119), and is "presumptively public so that the federal courts `have a measure of accountability' and so that the public may `have confidence in the administration of justice,'" id. (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).


How strong a "presumption of access" is accorded a document will vary with its role in the adjudicatory process. Evidence introduced at trial is given an "especially strong" presumption of access. In re Application of National Broadcasting Co. v. Myers, 635 F.2d 945, 952 (2d Cir. 1980). Likewise, a document submitted as the principal basis for a dispositive motion is given a strong presumption. As the exercise of Article III powers is a formal act of government, it should be subject to public scrutiny absent "exceptional circumstances." Amodeo, 71 F.3d at 1049. It follows that documents that play a central role in that process strongly should be presumed to be open to the public.


In evaluating whether a document is a "judicial document," the Court considers the "`relevance of the document's specific contents to the nature of the proceeding' and the degree to which `access to the document would materially assist the public in understanding the issues before the court and in evaluating the fairness and integrity of the court's proceedings." Id. at 139-40 (quoting Newsday LLC v. County of Nassau, 730 F.3d 156, 166-67 (2d Cir. 2013)).

To determine whether documents should be sealed under the common law right of access, the Court must: (i) determine whether the documents in question are "judicial documents"; (ii) assess the weight of the common law presumption of access to the materials; and (iii) balance competing considerations against the presumption of access. "Such countervailing factors include but are not limited to the danger of impairing law enforcement or judicial efficiency" and "the privacy interests of those resisting disclosure."

Doe v. City of New York, No. 15-CV-117 (AJN), 2019 WL 4392533, at *1 (S.D.N.Y. Sept. 13, 2019) (quoting Lugosch, 435 F.3d at 120) (internal citations omitted).


The case is Cavender v. UNITED STATES MERCHANT MARINE ACADEMY, Dist. Court, ED New York 2020.


Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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