[00:00:02] Speaker ?:
Case number 18-5217.

[00:00:30] Speaker 00:
Ms.

[00:00:31] Speaker 00:
Townsend.

[00:00:31] Speaker 05:
Good morning, Your Honor, as may it please the Court.

[00:00:34] Speaker 05:
This case presents issues of first impression for the Circuit with profound implications for the public's ability to monitor the judicial branch and the executive branch.

[00:00:44] Speaker 00:
That's two first impression cases in one day.

[00:00:46] Speaker 00:
We're batting a thousand.

[00:00:48] Speaker 05:
The Stored Communications Act and the Penn Register Act titles two and three of the Electronic Communications Privacy Act.

[00:00:56] Speaker 05:
contain provisions that enable law enforcement to seize private electronic communications records if appropriate or applicable legal standards are met.

[00:01:05] Speaker 05:
Critically, those statutes require ex ante judicial approval as well as judicial oversight.

[00:01:12] Speaker 05:
The judicial records that are central to the court's oversight role under the Stored Communications Act and the Penn Register Act, including applications filed by the government, court's dockets, and court orders themselves,

[00:01:26] Speaker 05:
are as a matter of law presumptively open to public inspection under the common law as well as under the First Amendment.

[00:01:35] Speaker 05:
Yet the reality is that these judicial records are not only sealed initially,

[00:01:41] Speaker 05:
while an investigation is active, but they are kept under seal often indefinitely long after any rationale or reason for sealing has long since dissipated.

[00:01:51] Speaker 05:
This secrecy is not the product of statutory mandate.

[00:01:59] Speaker 00:
The hardest thing I've found about this case is understanding exactly what happened in the district court and exactly what you're asking for.

[00:02:06] Speaker 03:
I agree with you entirely, particularly the latter point.

[00:02:09] Speaker 00:
So if I could start with the former point and then I'll get to the latter point.

[00:02:14] Speaker 00:
Will you tell me if I'm correct?

[00:02:16] Speaker 00:
I want to focus only on the common law, just for the moment.

[00:02:20] Speaker 00:
So on the common law right of access, am I right in saying that the district court held with respect to what you're calling retrospective, that is,

[00:02:30] Speaker 00:
materials that are currently sealed.

[00:02:33] Speaker 00:
There's no retroactive common law right of access at all, and thus, whatever you got before may be gravy, but there's no additional access to anything.

[00:02:43] Speaker 00:
Is that correct?

[00:02:44] Speaker 02:
That's correct, Your Honor.

[00:02:45] Speaker 00:
And with respect to prospective issues, which I understand to be documents which have not yet been filed, but will be filed after whatever decision is reached, is that correct?

[00:02:56] Speaker 00:
That's correct, Your Honor.

[00:02:58] Speaker 00:
There's a limited perspective common law right to certain information.

[00:03:02] Speaker 00:
There's no right to closed case, that is, I'm going to call them closed case, I know they're closed investigations, but I need a shorthand.

[00:03:11] Speaker 00:
Or even open, obviously, certainly not open, but not closed record documents, redacted or otherwise.

[00:03:17] Speaker 05:
That's correct, Your Honor.

[00:03:17] Speaker 00:
And the rationale was administrative burden.

[00:03:20] Speaker 05:
That is correct, Your Honor.

[00:03:21] Speaker 00:
And the court will provide biannual reports of limited information that is the information covered in the MOU.

[00:03:29] Speaker 05:
That is correct, Your Honor.

[00:03:30] Speaker 00:
All right.

[00:03:30] Speaker 00:
And there's no real time or access to closed case to dockets nor access to dockets after the case is closed to the docket sheet itself.

[00:03:46] Speaker 05:
That is correct, Your Honor, unless the matter is unsealed for some other reason.

[00:03:50] Speaker 05:
There are instances, for example, one-off instances where the U.S.

[00:03:54] Speaker 05:
Attorney's Office may request unsealing of a particular matter like this, or it may be – What if you requested?

[00:04:01] Speaker 05:
We have in fact done that in the past, and the media meekly brief that was filed indicates some examples of

[00:04:07] Speaker 05:
of instances in which members of the news media- So that's not foreclosed.

[00:04:14] Speaker 05:
It would appear to be foreclosed by the reasoning of the district court's ruling because what the district court concluded is that there is no right of access.

[00:04:23] Speaker 05:
There is no common law presumption of access that attaches to these documents because recognizing such a right would create undue administrative burden.

[00:04:33] Speaker 05:
It's really, in our view, really either or.

[00:04:36] Speaker 05:
It's not a question of whether the right has overcome under given circumstances.

[00:04:39] Speaker 00:
I understand the argument.

[00:04:40] Speaker 00:
Let me get to the question that Judge Solon is concerned about.

[00:04:44] Speaker 00:
We're interested in SMI, which is sort of what you're actually asking and what happened below in relation to that.

[00:04:52] Speaker 00:
How, if at all, does what was given, the kind of information provided under the MOU,

[00:05:00] Speaker 00:
With respect to the biannual reports, how does that differ from the EDVA electronic docket that's been established?

[00:05:08] Speaker 00:
And I understand the difference between real-time access and biannual information, but with respect to actual information, what about that?

[00:05:17] Speaker 05:
setting aside the contemporaneous nature of the access to the EDVA docket, the information that's contained in the biannual reports, which are published every six months and contain sort of information about Penn Register Act and the Stores Communications Act materials filed either six months or up to 12 months prior, it contains, and we've provided and requested judicial notice and provided a sample, actually a sample of that report, provides very limited information, not just the sort of the name of the matter,

[00:05:46] Speaker 05:
It does include the name of the matter, the judge that it was assigned to, as well as whether it is closed or open.

[00:05:53] Speaker 05:
But it does not indicate, for example, how the court ruled on the application.

[00:05:58] Speaker 05:
In other words, it's new.

[00:05:59] Speaker 00:
So it's the EDVA one?

[00:06:00] Speaker 00:
I have a copy of the EDVA one.

[00:06:02] Speaker 00:
I don't see the rulings.

[00:06:04] Speaker 00:
Does it say how the court ruled?

[00:06:05] Speaker 05:
It does not.

[00:06:06] Speaker 05:
And it is similar.

[00:06:09] Speaker 05:
The information that's provided by the EDVA is similar to the information that's provided in the six-month reports, although it is not

[00:06:16] Speaker 05:
Although, it is not real time.

[00:06:18] Speaker 05:
Although, I will note this as well.

[00:06:20] Speaker 05:
Which is not real time.

[00:06:22] Speaker 00:
The reports are obscene.

[00:06:23] Speaker 00:
Let me get to the bottom line.

[00:06:24] Speaker 00:
Is the EDVA good enough for you, or it's not good enough for you?

[00:06:27] Speaker 05:
Well, I think the distinction between the EDVA, and I think this is highlighted in the Applebaum case as well, which is the fourth circuit that discussed the EDVA's docketing procedure.

[00:06:36] Speaker 03:
I forget what that term refers to.

[00:06:39] Speaker 05:
Pardon me, Your Honor?

[00:06:40] Speaker 03:
What is EVA?

[00:06:40] Speaker 00:
Eastern District of Virginia.

[00:06:41] Speaker 00:
Eastern District of Virginia.

[00:06:42] Speaker 00:
Oh, is that what you're calling it?

[00:06:43] Speaker 00:
The electronic docket.

[00:06:44] Speaker 00:
Yeah, I'm sorry.

[00:06:45] Speaker 05:
I apologize.

[00:06:45] Speaker 00:
I'll call it the Virginia docket.

[00:06:47] Speaker 05:
The Virginia docket.

[00:06:48] Speaker 05:
I mean, that would help me.

[00:06:48] Speaker 05:
That was addressed in the case that we refer to in the briefing as ASAP.

[00:06:52] Speaker 03:
No, no, a lot.

[00:06:53] Speaker 03:
Yeah, no, no, I didn't read the Applebaum case.

[00:06:55] Speaker 05:
That docket differs in the sense that not only is it real time, that's actually the docket.

[00:07:01] Speaker 05:
So in this case, we're not asking the court to create any dockets.

[00:07:05] Speaker 05:
The request that was made in the Applebaum case was for the docket to be expanded, to be matter by matter, and include the actual filings in each case, as you would see on a civil or criminal docket.

[00:07:17] Speaker 05:
That is actually what the electronic dockets look like in the DDC for these types of matters.

[00:07:23] Speaker 05:
We just don't have access to those.

[00:07:24] Speaker 05:
So we're not asking the court to sort of create a new docket.

[00:07:27] Speaker 05:
In fact, the reports that are being created by the district court pursuant to the MOU, that's a new thing that's being created by the court.

[00:07:35] Speaker 00:
I get all that.

[00:07:37] Speaker 00:
If you got what they get in the Eastern District of Virginia, would that be what you were asking for, or are you asking for more than that?

[00:07:46] Speaker 05:
We are asking for more than that.

[00:07:49] Speaker 05:
Explain what the more is.

[00:07:54] Speaker 05:
Does the public and the press have access, and even other magistrate judges around the country?

[00:07:59] Speaker 00:
Just tell me what the specific things more that you want.

[00:08:02] Speaker 05:
We would like access to the actual dockets that are maintained by the district court, the electronic dockets, as well as procedures that would provide for what you call closed investigations or cases where the investigations are no longer ongoing, access to the underlying documents themselves.

[00:08:21] Speaker 03:
that also is that also your position with respect to the dockets?

[00:08:27] Speaker 03:
You're not looking for the dockets for live cases?

[00:08:32] Speaker 05:
We have requested in our proposed order that we submitted to the court real-time docketing.

[00:08:37] Speaker 05:
The district court

[00:08:38] Speaker 03:
You mean in live cases?

[00:08:40] Speaker 03:
You want dockets in live cases?

[00:08:42] Speaker 05:
In live cases.

[00:08:42] Speaker 05:
The district court ruled that we had waived that argument by limiting our relief to post-investigation materials, but the district court did not separately address that issue, access to dockets even post-investigation.

[00:08:54] Speaker 05:
So to the extent that the district court, in fact, was correct that our relief is limited to post-investigation, we don't see why we are not entitled to post-investigation dockets.

[00:09:06] Speaker 03:
Wait a minute.

[00:09:08] Speaker 03:
I lost you.

[00:09:10] Speaker 03:
Are you seeking dockets in live cases or not?

[00:09:15] Speaker 05:
At this stage, Your Honor, we are asking this court to determine whether we have a right of access to these materials post-investigation.

[00:09:21] Speaker 01:
The answer is no.

[00:09:23] Speaker 01:
No, Your Honor.

[00:09:24] Speaker 03:
Why don't you say no?

[00:09:27] Speaker 00:
So this is what we're trying to see how the issues narrow or expand from our understanding.

[00:09:33] Speaker 00:
So the issue about the real-time docket with respect to

[00:09:38] Speaker 00:
open cases is not really before us.

[00:09:41] Speaker 05:
That's correct, Your Honor.

[00:09:42] Speaker 00:
Okay, so we're only talking about access to closed dockets.

[00:09:47] Speaker 00:
With respect to prospectively, we're only asking for closed docket information.

[00:09:52] Speaker 05:
With respect to all the relief, Your Honor.

[00:09:53] Speaker 00:
It's post-investigation.

[00:09:54] Speaker 00:
Yeah, I understand, but... Okay.

[00:09:57] Speaker 00:
And with respect to those, you're asking... Well, I guess we would assume that a case that is filed today is open.

[00:10:08] Speaker 00:
right, that the investigation is still open.

[00:10:11] Speaker 05:
I would assume that.

[00:10:12] Speaker 00:
Yeah, otherwise why get a pen register, right, just as an example.

[00:10:15] Speaker 00:
Okay, so that would suggest some time lag before you'd have availability.

[00:10:21] Speaker 00:
So are you then

[00:10:24] Speaker 00:
saying within six months, or I can't remember what the amount of time you originally were proposing for an order to show cause.

[00:10:32] Speaker 00:
What was that?

[00:10:33] Speaker 00:
How much time was that?

[00:10:34] Speaker 05:
180 days is what we proposed.

[00:10:35] Speaker 00:
180 days.

[00:10:36] Speaker 00:
So just to get clear, your request for prospective access to dockets and docket documents,

[00:10:43] Speaker 00:
You're talking about no sooner than 180 days.

[00:10:46] Speaker 00:
Is that right?

[00:10:48] Speaker 05:
Not exactly, Your Honor.

[00:10:48] Speaker 05:
What we proposed to the district court was that the responsible US attorney have the responsibility to unseal the matter once the investigation was closed.

[00:10:58] Speaker 05:
So that could happen sooner than 180 days.

[00:11:01] Speaker 05:
The 180 days is a backstop.

[00:11:02] Speaker 00:
OK, I understand.

[00:11:03] Speaker 00:
But again, to be clear then, for prospective relief, you're only asking for the question is,

[00:11:14] Speaker 00:
Do you have a right to access the closed case dockets and underlying docket information, right?

[00:11:24] Speaker 04:
That's correct.

[00:11:25] Speaker 00:
And you recognize

[00:11:27] Speaker 00:
I take it from your previous jousting below, that some redactions would be permissible for privacy purposes, law enforcement, protection of law enforcement, investigation, even a related case, that sort of thing.

[00:11:44] Speaker 00:
Is that right?

[00:11:44] Speaker 00:
That's correct.

[00:11:46] Speaker 00:
All right.

[00:11:46] Speaker 00:
Now, with respect to retrospectively,

[00:11:52] Speaker 00:
We don't want anything for warrants.

[00:11:54] Speaker 00:
You're done with warrants, correct?

[00:11:56] Speaker 05:
That's correct.

[00:11:57] Speaker 05:
It was impossible really for the district court to even identify those documents based on the way that they were kept previously.

[00:12:04] Speaker 05:
So we recognize that there would need to be perspective.

[00:12:07] Speaker 05:
For SEA warrants or Stored Communications Act warrants, my apologies, only perspective relief.

[00:12:13] Speaker 00:
So we're talking only about

[00:12:16] Speaker 00:
Pen registers and Trap and Trace, I'm just going to call them pen registers, so I don't have to keep saying both, and for 2703D orders.

[00:12:23] Speaker 00:
That's all we're now.

[00:12:24] Speaker 00:
With respect to the pen registers, you're, again, only talking about closed cases, but for those, you're not even asking for the actual documents, just for extracted information.

[00:12:37] Speaker 00:
Correct.

[00:12:37] Speaker 00:
I assume you would take the documents, but you're willing to accept just the extracted information, and therefore, the redactions, that is,

[00:12:47] Speaker 00:
sensitive information for one reason or another.

[00:12:49] Speaker 00:
That's correct.

[00:12:50] Speaker 00:
All right.

[00:12:51] Speaker 00:
And with respect to the 2703D orders, all you're asking for, again, only with respect to closed cases, is basic docket information, like the number, the USA versus without the name of the person, I guess which magistrate was assigned to it.

[00:13:16] Speaker 00:
maybe the result, et cetera, right?

[00:13:19] Speaker 00:
That kind of information.

[00:13:20] Speaker 00:
Okay, so now I think I understand.

[00:13:23] Speaker 00:
Yes, now.

[00:13:32] Speaker 00:
So I have one question about the two kinds of law enforcement techniques.

[00:13:40] Speaker 00:
I understand the argument about

[00:13:42] Speaker 00:
and open access.

[00:13:44] Speaker 00:
What do you do, and therefore your argument is these are judicial records, there should be a presumption of open access, correct, with respect to pen registers, orders, and then because you can't understand the order without the application, et cetera.

[00:13:57] Speaker 00:
All right.

[00:13:58] Speaker 00:
Now what about the problem of 3123, which

[00:14:04] Speaker 00:
specifically provides that a pen register order shall direct that the order be sealed unless otherwise ordered by the court.

[00:14:15] Speaker 00:
Even if that doesn't reverse the presumption, doesn't it eliminate the presumption of access?

[00:14:21] Speaker 00:
That is, it begins with the conception that it will be sealed.

[00:14:25] Speaker 00:
And I appreciate that's not the case for warrants, not the case for 2703D, which you distinguish.

[00:14:31] Speaker 00:
But at least for pen registers, how do we, and again only on a common law, how do we get, how do you get to the argument that there's a presumption of access that is unsealing

[00:14:45] Speaker 00:
And when the statute says, it'll be sealed unless otherwise ordered.

[00:14:50] Speaker 00:
That's sort of the opposite of a presumption.

[00:14:51] Speaker 00:
The normal way in which you would put a presumption is it would be unsealed unless the court ordered to seal.

[00:14:57] Speaker 05:
I think the until further ordered by the court language actually contemplates future unsealing.

[00:15:03] Speaker 00:
I understand that.

[00:15:04] Speaker 00:
But I understand that.

[00:15:05] Speaker 00:
It's a point that I think either side has really briefed very well.

[00:15:08] Speaker 00:
I apologize for saying this, but I think this is the case.

[00:15:10] Speaker 00:
Everything's been merged, got three different kinds of things.

[00:15:13] Speaker 00:
We talk about them all together.

[00:15:15] Speaker 00:
It's definitely the case, I think, that it contemplates possibility of being unsealed, and therefore it contemplates you bringing motions for unsealing and for a decision which the district court has to have a rational basis for resolving, otherwise it's an abuse of discretion.

[00:15:32] Speaker 00:
But when you talk about the presumption, it seems like you don't have the presumption there in the way that you have in a situation where there's no statute at all.

[00:15:43] Speaker 05:
Well, I would say, Your Honor, I think it's quite useful.

[00:15:46] Speaker 05:
The case that was cited and reapplication of New York Times for access to wiretap materials that was actually cited by the government on Friday in his Rule 28J letter is somewhat helpful, I think, in this regard, because it demonstrates the difference between the three titles of ECPA and how Congress addressed sealing in each one.

[00:16:06] Speaker 05:
So if you look at the language of the Wiretap Act, which is the language that was at issue in that case,

[00:16:12] Speaker 05:
That language, or that provision, provides for sealing of the application, wiretap applications, and orders, period.

[00:16:20] Speaker 05:
So there's no until for the order of the court, it's period.

[00:16:23] Speaker 05:
And then it goes on to say that those materials will be made available only upon a showing of good cause, which was interpreted by the court in that case to be quite limited and exclude members of the press and the public.

[00:16:36] Speaker 05:
Now the Wiretap Act.

[00:16:37] Speaker 00:
So that seems to completely reverse any kind of presumption of access.

[00:16:41] Speaker 05:
And that is what the Second Circuit held in the New York Times case.

[00:16:44] Speaker 00:
I'm not asking about reversing.

[00:16:46] Speaker 00:
I think you're somewhere in between.

[00:16:48] Speaker 00:
It's to be sealed unless a specific showing.

[00:16:54] Speaker 00:
And it doesn't say anything about it, in which case you get the presumption you're in the middle.

[00:16:58] Speaker 00:
It says it'll be sealed unless the district court decides otherwise.

[00:17:02] Speaker 00:
Now, actually, this could be thought of two different ways.

[00:17:05] Speaker 00:
One is it's in the complete, unrevealable discretion of the district court.

[00:17:10] Speaker 00:
It doesn't even give a standard.

[00:17:12] Speaker 00:
good cause.

[00:17:14] Speaker 00:
It would be unusual for us to assume district courts can act without any standard unless it's quite clear.

[00:17:22] Speaker 00:
So that suggests there does have to be some standard.

[00:17:25] Speaker 00:
I don't know, good cause seems like a good standard.

[00:17:27] Speaker 00:
I guess we can think of another set of words, but at a minimum there would have to not be an abuse of discretion.

[00:17:34] Speaker 00:
But that again suggests that the burden is on person wanting disclosure, not on

[00:17:41] Speaker 00:
the court to disclose automatically.

[00:17:44] Speaker 05:
I think the standard, Your Honor, is the common law presumption.

[00:17:47] Speaker 05:
I think that's what Congress intended.

[00:17:48] Speaker 05:
I think that Your Honor's decision in MetLife Incorporated is actually very instructive on this point, because the Congress is presumed to be aware of the existence of the common law presumption of access, which is

[00:17:59] Speaker 05:
predates the Constitution in this country.

[00:18:01] Speaker 05:
It is presumed to be aware of that.

[00:18:03] Speaker 05:
And so if it indicates that matters can be unsealed upon order of the court, I think it assumes, I think, the appropriate assumption unless Congress says otherwise, which it clearly has not done.

[00:18:13] Speaker 00:
Well, MetLife is really, in all the cases in general, our assumption that everything is open.

[00:18:18] Speaker 00:
We'd start with the idea that our records are open.

[00:18:21] Speaker 00:
And then we address the question of a district court in an unusual circumstance, sealing it.

[00:18:29] Speaker 00:
That's not what this is about.

[00:18:31] Speaker 00:
Pen registers, we begin with Congress's direction that they be sealed.

[00:18:36] Speaker 00:
So I don't think MetLife gets you all the way there.

[00:18:39] Speaker 00:
And of course, MetLife was, how does a different statute applicable to the executive branch apply to the judicial branch?

[00:18:47] Speaker 00:
Not quite the same.

[00:18:52] Speaker 01:
So I wanted to ask you about an aspect of the common law argument here.

[00:19:04] Speaker 01:
So if I were to agree with you that the district court erred by taking account of the administrative burden in the question of defining the common law right,

[00:19:19] Speaker 01:
What do you think about the, I have two questions about that.

[00:19:21] Speaker 01:
Number one, what do you think about the magistrate judge's argument that, or point that, well, the district court could take that into account in fashioning a remedy.

[00:19:31] Speaker 01:
That is, it could take account of the administrative burden in terms of determining how and when you would get the documents.

[00:19:39] Speaker 01:
Are you okay with that?

[00:19:41] Speaker 05:
I think the magistrate judge's argument that the appropriate consideration for administrative burden is determining how best to sort of facilitate access if a right exists is a very good approach.

[00:19:52] Speaker 01:
Okay, you're okay with that.

[00:19:53] Speaker 01:
And second, again, this is a hypothetical, if I would agree with you,

[00:19:58] Speaker 01:
that we have to send, that the consideration of the administrative burden was an error and we send this back.

[00:20:07] Speaker 01:
Do we even need to address the First Amendment issue?

[00:20:10] Speaker 01:
In other words, is there anything that you want that you can't get with the common law right and that you need the First Amendment right for referring to the list you and Chief Judge Garland just negotiated?

[00:20:26] Speaker 01:
Anything on that list that maybe overstates?

[00:20:33] Speaker 05:
It is unusual for the court to reach the First Amendment questions that are presented if the common law resolves the issue.

[00:20:40] Speaker 05:
That said, this court in Washington Post against Robinson did suggest, because of the different and heightened standards of protection that the First Amendment right of access provides, that in some cases it is appropriate for the court to reach the First Amendment.

[00:20:54] Speaker 01:
I know, but what about this case?

[00:20:55] Speaker 05:
I think because of the nature of the remedy that we've requested.

[00:20:58] Speaker 05:
I mean, we are very cognizant of the fact, as the amici federal magistrate judges pointed out, there are different ways that the district court can facilitate this kind of access.

[00:21:09] Speaker 01:
I understand that, but just to answer my specific question, is there anything you can't get under the common law right that you need?

[00:21:17] Speaker 01:
If we reverse the district court and say you can account for administrative burden in the remedy,

[00:21:25] Speaker 01:
What's left?

[00:21:27] Speaker 01:
Just tell me that.

[00:21:28] Speaker 01:
I understand exactly why you would want the First Amendment issue decided.

[00:21:33] Speaker 01:
I get that.

[00:21:34] Speaker 01:
But do you need it in this case?

[00:21:38] Speaker 05:
I think because of the nature of the relief that we seek and the fact that, which is remand to the district court to apply the appropriate standards, I think if the district court does not have guidance on whether or not the First Amendment right of access applies to any or all of the materials at issue here, that could affect the remedy that the court does, the relief the court does provide.

[00:21:58] Speaker 00:
So that's a prediction about how the district court might react.

[00:22:03] Speaker 00:
But I think Judge Tittle is asking this question.

[00:22:05] Speaker 00:
In your view of the common law,

[00:22:08] Speaker 00:
If your view of the common law were upheld by the district court, would you get everything you're asking for?

[00:22:17] Speaker 05:
Practically, I think that is correct.

[00:22:20] Speaker 01:
OK, thank you.

[00:22:24] Speaker 01:
I appreciate your candor.

[00:22:27] Speaker 01:
Of course, if you didn't, you could always return to the First Amendment issue.

[00:22:30] Speaker 01:
But for purposes of our thinking now, if we think, we've made the point.

[00:22:37] Speaker 01:
That won't be my only question.

[00:22:38] Speaker 03:
All right, I have a question.

[00:22:41] Speaker 03:
Why do you take the position that the burden is not a relevant factor to consider in determining the rights in the first place as opposed to the remedy, although as a practical matter,

[00:22:56] Speaker 03:
If it's considered at the remedy stage, it may make no difference.

[00:23:01] Speaker 03:
But why do you say it's an illegitimate consideration, which is your basic legal argument on the common law?

[00:23:09] Speaker 03:
What is your ground for concluding that the government's burden is not a legitimate factor?

[00:23:16] Speaker 05:
This court's precedent, Your Honor.

[00:23:18] Speaker 05:
I think if you look at El-Sayyid, United States against El-Sayyid, which defines judicial records and concludes that if items are judicial records, then the strong common law presumption of access applies to them.

[00:23:30] Speaker 03:
I don't know if Hubbard that you really went back to.

[00:23:33] Speaker 03:
And the United States being Hubbard- And Hubbard actually is a case in which the government's interest isn't even involved.

[00:23:39] Speaker 03:
And Hubbard were, and the six factors in Hubbard are addictive, really.

[00:23:43] Speaker 03:
They weren't part of the holding.

[00:23:45] Speaker 03:
back in the days when he used to write these expansive legislative type opinions.

[00:23:52] Speaker 03:
But I don't see any reason why the burden or the government isn't relevant when we're talking about the common law.

[00:24:01] Speaker 05:
I would make two points.

[00:24:01] Speaker 03:
I mean, the common law, we're supposed to consider all factors.

[00:24:05] Speaker 03:
We're free to consider factors.

[00:24:07] Speaker 03:
And there's not, even if you look at Hubbard, Judge Wald left open the question of new factors.

[00:24:15] Speaker 05:
Well, I would say two things to that, Your Honor.

[00:24:17] Speaker 05:
I think Hubbard draws a distinction between the six generalized factors, which this Court has recognized as always served as a sort of the lodestar for determining whether the presumption is —

[00:24:29] Speaker 00:
He means the one of the three subsequent cases adopted as the holding.

[00:24:33] Speaker 00:
That's the ones he's talking about.

[00:24:36] Speaker 05:
The generalized factors in Hubbard, the six generalized factors, are those factors that the court identified could be balanced in determining whether the right, not whether it exists, but whether it's overcome in a given case.

[00:24:47] Speaker 05:
Those are the six factors that can be considered without reference to the documents, to the contents of particular documents.

[00:24:54] Speaker 03:
But it didn't exclude other factors.

[00:24:56] Speaker 05:
It provided for particularized factors.

[00:24:58] Speaker 03:
That opinion actually did not exclude other factors.

[00:25:01] Speaker 05:
Particularly in Hubbard, where the number of records that were at issue in Hubbard ranged, I believe, in excess of 23,000 records, I would have thought if the court in Hubbard wanted to treat administrative burden as a generalized factor that a court could look at or determine or weigh without even looking at the contents of records, it would have included that within the generalized factors.

[00:25:28] Speaker 05:
The particularized factors which Hubbard allows for

[00:25:31] Speaker 05:
are factors that must be tied to the contents of specific records.

[00:25:36] Speaker 03:
Well, I'm trying to say the government was not involved.

[00:25:38] Speaker 03:
The government's interest was not at stake in Harvard.

[00:25:43] Speaker 05:
That's true, Your Honor.

[00:25:44] Speaker 05:
It involved a private party who was moving.

[00:25:47] Speaker 03:
So when we're talking about the common law, we didn't even have to look at, in that case, the implications of a burden on the government.

[00:25:57] Speaker 03:
So that's why I'm inclined to think

[00:26:00] Speaker 03:
it doesn't exclude the concept of burden.

[00:26:03] Speaker 03:
Now, to be sure, if the district judge in fashioning a remedy, assuming there's a violation, can come out the same way as she would in determining whether or not the burden is a relevant factor in determining whether the common law applies in the first place, that may make no difference.

[00:26:27] Speaker 03:
very troubled at the proposition that burden is an irrelevant factor.

[00:26:33] Speaker 05:
Well, I think to burden with respect to requests on seal is an argument that could be made or is present in every case.

[00:26:39] Speaker 05:
It certainly isn't the case that a district court could conclude, for example, that plea agreements, which this court is held are subject to a First Amendment right of access.

[00:26:49] Speaker 03:
You know, it seems to me there's a big difference.

[00:26:52] Speaker 03:
There's one area, whether you're talking about plea agreements,

[00:26:55] Speaker 03:
or you're talking about consent decrees, you're talking about final actions of a court.

[00:27:01] Speaker 03:
I think that's of the highest public interest.

[00:27:05] Speaker 03:
But the records that issue here do include court orders, orders granting or authorizing... No, I'm not talking about final actions of the adjudication of a substantive case, a consent decree, a plea, et cetera.

[00:27:17] Speaker 03:
Even in the case, even in a case where... The argument can be made, this is much closer to a subpoena, to a grand jury subpoena, and we don't disclose those at all.

[00:27:27] Speaker 05:
And I think Your Honor, we addressed why these matters are distinguishable from grand jury matters, which are very unique as this court recognized an NRA sealed case and subject to

[00:27:38] Speaker 05:
really singular secrecy in our in our system, in our judicial system.

[00:27:42] Speaker 05:
And the reasons why in Ray Seale case, which doesn't isn't decided under the common law or under the First Amendment at all, it was decided under Local Rule 6.1 precisely because of the sort of unique

[00:27:53] Speaker 05:
unique context of grand jury material.

[00:27:56] Speaker 05:
But I'd like to, if I may, Your Honor, I know I'm way over my time, go back to just the notion that you raised that if the court can consider administrative burden in sort of determining how best to provide access, that that would not lead to a different outcome.

[00:28:10] Speaker 05:
And I think that that's, I would disagree with that.

[00:28:13] Speaker 05:
I think that does lead to a different outcome, to the extent that administrative burden is not a factor that determines the existence of the right.

[00:28:20] Speaker 05:
And it's not a factor that can

[00:28:23] Speaker 05:
outweigh the right, let alone alone outweigh the presumption of access under the common law, then the way that it sort of fits in is how do you solve it?

[00:28:33] Speaker 03:
If burden could be taken into account, it isn't necessarily a question of is there a common law right or is there not, but it can be a modified common law right.

[00:28:47] Speaker 03:
You see what I'm driving at?

[00:28:48] Speaker 03:
The burden could take, burden could be taken into account perhaps, hypothetically,

[00:28:53] Speaker 03:
without a determination that there's no common law right, it could affect the common law right.

[00:29:00] Speaker 05:
I think it could affect, it should not be taken into account to determine either the existence of the right or whether the right has in a given instance been overcome.

[00:29:11] Speaker 05:
I think where a burden could be considered is in the district court's ability to determine sort of

[00:29:18] Speaker 05:
how best to give access or whether a local rule, like the local rule in the District of Arizona that provides for a 180-day sunset period like the one that we've suggested, whether that's an appropriate way of doing it.

[00:29:30] Speaker 03:
What about this case?

[00:29:31] Speaker 03:
What about the fact that to give you your remedy would take hundreds and hundreds, hundreds of hours of government time?

[00:29:41] Speaker 03:
That's not relevant?

[00:29:43] Speaker 05:
It wouldn't, Your Honor.

[00:29:45] Speaker 05:
I'm sorry.

[00:29:46] Speaker 03:
You're saying that it's not relevant.

[00:29:47] Speaker 05:
No, I'm saying that as a factual matter, that was an estimate of time that the U.S.

[00:29:55] Speaker 05:
Attorney's Office provided with respect to a certain type of retrospective relief that we have asked for.

[00:30:01] Speaker 05:
And what we asked for was primarily prospective relief.

[00:30:04] Speaker 03:
You said that in your brief, primarily.

[00:30:07] Speaker 03:
But then I thought, but you do seek some retrospective relief?

[00:30:11] Speaker 05:
Limited retrospective relief, yes, Your Honor.

[00:30:14] Speaker 03:
And that's only dealing with, what, the 2703D orders?

[00:30:20] Speaker 05:
That's correct.

[00:30:21] Speaker 05:
And Pen Register Act matters.

[00:30:22] Speaker 03:
And what?

[00:30:23] Speaker 05:
And Pen Register Act matters.

[00:30:25] Speaker 05:
Pen Register matters.

[00:30:26] Speaker 03:
Well, what are you seeking retrospectively?

[00:30:29] Speaker 05:
Retrospectively, with respect to Pen Register matters, we are seeking unsealing of specific sort of information about those matters, including

[00:30:41] Speaker 05:
things that were filed similar to what we call this sort of extraction process at the district court level, similar to what was provided for 24 of those matters from the year 2012 by the attorney's office.

[00:30:54] Speaker 05:
We're also asking retrospectively for basic document information for section 27.

[00:30:59] Speaker 03:
So is the burden on the government and the court system relevant at all in considering whether there's a common law

[00:31:09] Speaker 03:
what the extent of the commonwealth right is.

[00:31:12] Speaker 05:
Not the extent of the common law.

[00:31:13] Speaker 05:
I think it is relevant with respect to the court fashioning a remedy.

[00:31:17] Speaker 05:
But I don't think a court could say you have a common law right of access to inspect.

[00:31:23] Speaker 05:
You have a common law right to inspect these docket sheets.

[00:31:25] Speaker 05:
But because it would be burdensome for you to exercise that right, we're going to foreclose access.

[00:31:32] Speaker 05:
I don't think that's the way burden can be interpreted.

[00:31:34] Speaker 03:
Foreclose access is an overstatement.

[00:31:37] Speaker 03:
In other words, I'm looking for whether if burden is a relevant factor,

[00:31:42] Speaker 03:
in articulating what the Commonwealth right is.

[00:31:45] Speaker 05:
I don't think it is, Your Honor.

[00:31:47] Speaker 05:
I don't think Hubbard contemplates consideration.

[00:31:49] Speaker 03:
Well, Hubbard didn't deal with the problem.

[00:31:51] Speaker 03:
Hubbard didn't deal with the problem at all and certainly didn't even have the government involved.

[00:31:56] Speaker 05:
I would think that if burden would be a factor that the courts would be concerned about burden on individual private parties as well as on the government.

[00:32:05] Speaker 03:
Oh, no, no.

[00:32:05] Speaker 03:
What about the burden on the court?

[00:32:08] Speaker 05:
I think that burden, administrative burden,

[00:32:10] Speaker 05:
And I do think that the Federal Magistrate Judge's amici brief is helpful in a couple of ways.

[00:32:15] Speaker 05:
One, by pointing out that the burden, especially prospectively, was overstated by both the U.S.

[00:32:22] Speaker 05:
Attorney's Office and the District Court, particularly given some of the changes that the District Court has already made, including standardizing case captions and providing

[00:32:33] Speaker 05:
I think the burden is not quite as expansive as the district court seemed to think.

[00:32:46] Speaker 05:
I also think that to the extent that there are different ways that the district court can facilitate

[00:32:51] Speaker 05:
the public's right to inspect these documents that would be less burdensome even than what we've asked for in our proposed order.

[00:33:00] Speaker 05:
I think to the extent the right, the policies and the procedures comply with the common law presumption of access, that's fine.

[00:33:06] Speaker 05:
And I think that the court can consider administrative burden when shaping a remedy, but I don't think that administrative burden can be used

[00:33:14] Speaker 05:
as a factor under Hubbard, certainly not to define the existence of the right, but even to determine whether the right has been overcome.

[00:33:23] Speaker 03:
Or whether it's been modified.

[00:33:27] Speaker 05:
I don't think that the right... I think once... There's nothing in Hubbard that precludes that, is there?

[00:33:34] Speaker 03:
A modification of the... That the common law right is modified by the burden.

[00:33:39] Speaker 05:
I think that the structure that this court's precedent sets forward is sort of this two-step structure.

[00:33:45] Speaker 05:
Does the common law presumption apply?

[00:33:48] Speaker 05:
And if we're talking about judicial records, we need the definition of judicial records, the common law presumption applies.

[00:33:55] Speaker 05:
Then the question is, is the right

[00:33:57] Speaker 05:
overcome in a given case by the factors that the court identified, the generalized factors, and any particularized factors that speak to the document's content, is the right overcome.

[00:34:07] Speaker 05:
So that test doesn't contemplate administrative burden in either identifying whether the right exists or even what the scope of the right is.

[00:34:14] Speaker 05:
I think we're not insensitive to the administrative burden concerns that were raised, and in fact, I think if you look at the

[00:34:25] Speaker 05:
way that the case proceeded at the district court level, I think we voluntarily narrowed our retrospective relief we sought in order to ease some of what the U.S.

[00:34:36] Speaker 05:
Attorney's Office asserted was a burden on them to comply with wholesale unsealing.

[00:34:41] Speaker 05:
We understood that.

[00:34:42] Speaker 05:
We didn't ask for that.

[00:34:43] Speaker 05:
We moved toward what we thought was far more important and really necessary, which were changes to the policies and procedures for docketing and unsealing these matters.

[00:34:52] Speaker 05:
Thank you.

[00:34:53] Speaker 00:
Thank you.

[00:34:53] Speaker 00:
We'll hear from the United States.

[00:35:01] Speaker 04:
May it please the court, Peter Smith on behalf of the United States.

[00:35:05] Speaker 00:
Mr. Smith, can I just make sure my description of what the district court held, which the plaintiffs agree was an accurate description.

[00:35:13] Speaker 00:
Do you agree that was an accurate description as well?

[00:35:16] Speaker 04:
I agree with that, yeah.

[00:35:17] Speaker 00:
Thank you.

[00:35:20] Speaker 04:
For a period of approximately two years, the parties in the district court worked through these issues.

[00:35:26] Speaker 04:
The district court's decision concerning the common law right of access was a reasonable compromise given the various factors that it was required to balance.

[00:35:37] Speaker 03:
Council, may I, since I'm a little bit more sympathetic to your position than my colleagues here, let me say there's one thing in your brief that troubled me no end, and that is,

[00:35:50] Speaker 03:
the notion that some of the material that would be disclosed, if the plaintiffs in this case prevail, would alert people as to what techniques the Justice Department is using for investigative purposes.

[00:36:16] Speaker 03:
You did make that argument.

[00:36:19] Speaker 03:
We did.

[00:36:19] Speaker 03:
And I find that troubling, because that seems to me exactly what the Reporters Committee and plaintiffs are entitled to have.

[00:36:32] Speaker 03:
I mean, I recognize that could diminish the effectiveness of certain techniques, but it seems to me the common law right of access overweighs on that.

[00:36:43] Speaker 03:
I don't think you can hold back

[00:36:45] Speaker 03:
your techniques for purposes of effectiveness?

[00:36:49] Speaker 04:
I understand your Honor's point, and I think that regardless that what the district court did was correct, and that the government's arguments in this case don't hinge, don't rise or fall based upon that component of its argument.

[00:37:04] Speaker 04:
For example, today appellants were arguing that they want the unsealing of, I understood them to be saying all of these documents after a certain period of

[00:37:14] Speaker 04:
With redactions, they say.

[00:37:18] Speaker 04:
Right, with redactions.

[00:37:20] Speaker 04:
And that raises a variety of different issues.

[00:37:23] Speaker 00:
Well, let me ask another point along the lines of Judge Silverman's, which bothered me more than the question of the techniques.

[00:37:32] Speaker 00:
And that is the government's theory of the burden of proof the government must present in order to get approval by the court.

[00:37:42] Speaker 00:
The district court mentioned that also as something that should not be disclosed.

[00:37:49] Speaker 00:
It seems to me that a magistrate's order approving it, even if we don't know what kind of electronic surveillance it is on a government theory, this was the difference between probable cause and whatever the lesser version was.

[00:38:04] Speaker 00:
Right, the reasonable suspicion.

[00:38:05] Speaker 00:
Yes.

[00:38:06] Speaker 00:
Do you see any reason why the public should not know that the government is urging the court to adopt a reasonable suspicion standard rather than a probable cause standard?

[00:38:18] Speaker 00:
Is that something that should be redacted in your view or not?

[00:38:24] Speaker 04:
The standard that's being applied by the court in adjudicating.

[00:38:30] Speaker 04:
The theory of the district court and the government in making that argument was that it would telegraph to someone what sort of order it is, meaning is it a 2703A warrant or is it a 2703D order?

[00:38:45] Speaker 00:
What's the difference with respect to, I don't see, I have to say, I don't see what the government's

[00:38:51] Speaker 00:
law enforcement interest is in parties, in the public at large, knowing, assume for a moment they don't even know what kind of electronic surveillance it is, just that it fits under one of these statutes.

[00:39:03] Speaker 00:
But I see a big concern about public access to the standards that district courts and magistrates are using.

[00:39:12] Speaker 00:
That's the court's order.

[00:39:15] Speaker 00:
What if the court ordered, you know, we're going to uphold this conviction because it's more likely than not?

[00:39:20] Speaker 00:
Because that would be good for law enforcement.

[00:39:22] Speaker 00:
We're not going to tell anybody.

[00:39:23] Speaker 00:
It doesn't seem right.

[00:39:25] Speaker 04:
Yeah, I think I'm agreeing with the court's point.

[00:39:29] Speaker 04:
The memorandum of understanding that the clerk's office has adopted on the district court is implementing, I believe, and I can chat very quickly, but I believe contains the statutory authority for the government's request.

[00:39:46] Speaker 04:
So I think that the public is receiving that information in future cases.

[00:39:52] Speaker 04:
And as I mentioned, the government and the district court had reasons for making that argument, but I think I agree because

[00:39:58] Speaker 04:
I think going forward the public is receiving that information and that dovetails with my argument before that what the district court did here in implementing the six month delay in implementing the memorandum of understanding which provides opponents with a lot of information much more than

[00:40:18] Speaker 04:
the Virginia docket provides was not only a reasonable compromise, but it was a proper legal conclusion.

[00:40:26] Speaker 00:
So the latter is really the issue.

[00:40:27] Speaker 00:
I don't think there's any doubt here that the district court has done tremendous work on creating transparency that did not exist before in the dockets, and that this was very hard work to get done.

[00:40:41] Speaker 00:
I don't think there's any doubt about that, and I think that's an extremely important improvement.

[00:40:45] Speaker 00:
The question is whether, under the law,

[00:40:48] Speaker 00:
the plaintiffs are entitled to more, not whether a compromise is sufficient.

[00:40:52] Speaker 00:
We don't normally compromise like this.

[00:40:54] Speaker 00:
We do balance.

[00:40:55] Speaker 00:
So I'm concerned on the question of the burden, and so if I could ask you a few specific questions about that.

[00:41:02] Speaker 00:
So with respect to the pen register matters, the court

[00:41:09] Speaker 00:
taking the court's worst case, the court said it would take nearly 20, 40-hour AUSA work weeks to get the retrospective information.

[00:41:18] Speaker 00:
That's the top of the district court's estimate.

[00:41:22] Speaker 04:
Correct.

[00:41:22] Speaker 00:
OK.

[00:41:22] Speaker 04:
788 hours, I think she said.

[00:41:24] Speaker 00:
Right, which came down to 20, 40-hour work weeks.

[00:41:27] Speaker 00:
So if you, and the court said as a consequence, you're not entitled to anything, correct?

[00:41:36] Speaker 00:
That burden meant that there was no right of access at all for the closed cases, the pen registers.

[00:41:48] Speaker 04:
So I disagree with that, or at least the way that you framed it, Judge Gardner.

[00:41:54] Speaker 04:
what the district court said or did in the order was to say that there is a limited common law right of access, and it is no more extensive than the materials that appellants have already received.

[00:42:06] Speaker 00:
Which were sort of a sample subset of information.

[00:42:08] Speaker 00:
Correct.

[00:42:09] Speaker 04:
Correct.

[00:42:10] Speaker 04:
Okay.

[00:42:10] Speaker 04:
So it was 10% of all those materials.

[00:42:13] Speaker 00:
And that's all they get a right to, 10% randomly chosen, not the rest.

[00:42:16] Speaker 00:
I don't even know how they were chosen, but 10%.

[00:42:19] Speaker 00:
Right.

[00:42:20] Speaker 00:
If you put five people on it at the U.S.

[00:42:22] Speaker 00:
Attorney's Office, that would only take four weeks, correct?

[00:42:26] Speaker 00:
I just divided, that's all I did.

[00:42:28] Speaker 04:
I think, and I would also add to this, I mean, the burden is also on the district court.

[00:42:32] Speaker 00:
Well, that's not the way, the district court did say that with respect to the 2703D docket, but not, the estimates with respect to the pen register information was with respect to the AUSA work weeks.

[00:42:46] Speaker 00:
So if you put five people on it, that would only be four weeks.

[00:42:49] Speaker 00:
If you did it over two years, that would only be two weeks.

[00:42:53] Speaker 00:
If you did it over three years or five years, what is the justification, whether you regard the balancing as the question of the existence of the right or the remedy, for saying you can never, even in 100 years, get access to that retrospective information?

[00:43:13] Speaker 00:
I don't understand that.

[00:43:14] Speaker 00:
I understand why.

[00:43:16] Speaker 00:
In the words, I think, of the magistrate's brief, you know, the how and the when, but not the ever, not the existence at all.

[00:43:24] Speaker 00:
What is the justification for a rule that says because we can't give it to you today because it would take, I don't know, the whole U.S.

[00:43:31] Speaker 00:
Attorney's Office, we can't give it to you after two years or we can't put some extra people on it or something like that.

[00:43:40] Speaker 04:
I think that the answer is the balancing process itself.

[00:43:47] Speaker 04:
The fact that burden can be part of the balancing process is expressed by cases like Nixon, the Supreme Court's case.

[00:43:54] Speaker 04:
Nixon, for example, that says that the district court has discretion in light of the relevant facts and circumstances.

[00:44:01] Speaker 00:
Everyone in those cases have to do a specific set of documents.

[00:44:04] Speaker 00:
Correct.

[00:44:05] Speaker 00:
None of them have to do with an entire class of documents.

[00:44:08] Speaker 04:
Right.

[00:44:08] Speaker 00:
So under your rule, if I understand correctly, pen registers are judicial records subject to the presumption of access in Virginia and in maybe six or seven other districts because there isn't a huge burden and there aren't a lot of them.

[00:44:29] Speaker 00:
And they are not judicial records subject to presumption in the District of Columbia.

[00:44:36] Speaker 00:
That seems like an odd rule for a category of documents, doesn't it?

[00:44:42] Speaker 03:
Is that your position that are not judicial records?

[00:44:45] Speaker 04:
No, we agree they're judicial records.

[00:44:48] Speaker 04:
And as I said before, I think to the extent that appellants have a right to the materials, that right was defined by the 10% they received.

[00:44:57] Speaker 04:
So I would disagree a little bit.

[00:44:58] Speaker 00:
OK, fine.

[00:44:59] Speaker 04:
Other than 10%.

[00:45:00] Speaker 00:
I'm happy to put it that way.

[00:45:03] Speaker 00:
So imagine that in our circuit,

[00:45:06] Speaker 00:
in the days before PACER, where everything is done by paper.

[00:45:12] Speaker 00:
Gee, it's a huge burden on us to produce for a newspaper who wants to come and look at our briefs and appendices.

[00:45:23] Speaker 00:
I mean, we'd have to put on many, many more people in the clerk's office to do that.

[00:45:27] Speaker 00:
That's a big burden.

[00:45:29] Speaker 00:
And imagine some other circuit that, well, I guess we're the smallest circuit.

[00:45:33] Speaker 00:
So imagine some other circuit with

[00:45:36] Speaker 00:
some huge circuit with a big burden, like the Ninth Circuit.

[00:45:39] Speaker 00:
They'd have to put people on in every courthouse.

[00:45:42] Speaker 00:
So can it be the case that briefs and appendices are judicial records subject to the presumption of openness in our circuit, but not in the Ninth Circuit?

[00:45:57] Speaker 04:
I would think so based upon the burden, because I think a, burden is a proper

[00:46:05] Speaker 04:
it's a proper mode of analysis for the district court to engage in, and B, because you have to look at the burden against the other interests that are being weighed.

[00:46:12] Speaker 04:
And that's why I was saying before, you know, compromise may be the improper term that I used when I was starting out, but the bottom line is that

[00:46:20] Speaker 04:
this was a proper balancing of these different injuries.

[00:46:23] Speaker 00:
We've never said that about those kind of things that we've never considered, for example, with respect to our appendices and briefs, which were the subject of MetLife, that we would think about how many people it took.

[00:46:35] Speaker 00:
You know, it takes

[00:46:36] Speaker 00:
a lot of court personnel to keep this proceeding open right now.

[00:46:40] Speaker 00:
And in a trial, it takes a lot more.

[00:46:42] Speaker 00:
It takes the United States Marshals.

[00:46:45] Speaker 00:
It takes people from the Bureau of Prisons, from the DC Jail.

[00:46:49] Speaker 00:
It's way more expensive and way more time consuming than the 40 hours that we're talking about here.

[00:46:56] Speaker 00:
And yet, could you say that some trials are open because

[00:47:01] Speaker 00:
No burden, and some trials, really the really controversial ones, because those are the ones where there's a huge line outside and we need a lot of court personnel.

[00:47:11] Speaker 00:
Those are closed because the burden on the court or on the U.S.

[00:47:16] Speaker 00:
Attorney's Office or on the Justice Department's Marshal Services too big.

[00:47:20] Speaker 04:
Well, I think the balancing process would also be affected by what sort of record it is.

[00:47:26] Speaker 04:
So in your hypothetical, you're talking about a brief.

[00:47:30] Speaker 04:
You're talking about something that's more akin to, in the district court, the trial, the public proceeding that the public can attend.

[00:47:36] Speaker 04:
These materials are more akin to grand jury materials.

[00:47:38] Speaker 04:
They're criminal investigative materials.

[00:47:41] Speaker 04:
And the district court was balancing its interests.

[00:47:43] Speaker 04:
And this is the other part.

[00:47:45] Speaker 00:
It seemed to be part of the First Amendment balancing, not in terms of the common law balance.

[00:47:49] Speaker 04:
I think this is also part of the common law balancing.

[00:47:51] Speaker 04:
And it's part of my answer to your question, Your Honor, which is that the district court's got to balance all these factors.

[00:47:58] Speaker 04:
And they include the law enforcement interests.

[00:48:00] Speaker 04:
When you were saying before that this would be a certain number of hours or a certain number of weeks of a time for an assistant US attorney or some other US attorney's office employee, that the district court was properly weighing what else that person could do.

[00:48:15] Speaker 04:
And that seems like when you're talking about privacy interests

[00:48:18] Speaker 04:
law enforcement interests, the integrity of open investigations, and the other law enforcement functions that the U.S.

[00:48:25] Speaker 00:
Attorney's Office has, that those are all reasonable... Well, no one disputed the question of the integrity of open investigations.

[00:48:33] Speaker 00:
The burden comes from figuring out which ones are open and which ones aren't, but plaintiffs are not disputing

[00:48:40] Speaker 00:
here or a guest below that open investigation shouldn't be disclosed, nor even that sensitive information shouldn't be disclosed.

[00:48:48] Speaker 00:
The only issue is how many bodies have to be put on the, correct?

[00:48:52] Speaker 00:
Yes.

[00:48:52] Speaker 00:
On the job to be sure that they aren't disclosed.

[00:48:54] Speaker 03:
I thought you made an argument that, and this was an interesting one, that it's enormously difficult to determine whether the matter is totally closed even if the case is closed.

[00:49:06] Speaker 03:
In other words, there could be spin-offs from the case

[00:49:09] Speaker 03:
in three different U.S.

[00:49:10] Speaker 03:
Attorney's offices around the country, for all you know.

[00:49:13] Speaker 03:
That's correct.

[00:49:14] Speaker 03:
And the effort to determine whether there's no prejudice to continuing law enforcement purposes can be enormous.

[00:49:26] Speaker 04:
It can.

[00:49:26] Speaker 04:
I agree with that.

[00:49:27] Speaker 04:
And we did make that argument in our brief.

[00:49:29] Speaker 04:
And the district court spent a fair amount of time unpacking that.

[00:49:33] Speaker 03:
How can you just

[00:49:37] Speaker 03:
turn that into a number of hours.

[00:49:39] Speaker 03:
That's what's puzzling me.

[00:49:40] Speaker 04:
Well, I think the number of hours is more of a discrete inquiry into extract.

[00:49:49] Speaker 04:
I think that was the calculation of how long it would take to extract information from the cases that the government agreed or thought were closed.

[00:50:01] Speaker 03:
Yeah, but what about the time it takes to try to determine whether

[00:50:06] Speaker 03:
The matter is closed.

[00:50:08] Speaker 03:
And it's not just the case.

[00:50:10] Speaker 03:
That's what's so troubling me.

[00:50:13] Speaker 03:
It can be all kinds of spin-offs from the case.

[00:50:16] Speaker 04:
I agree.

[00:50:17] Speaker 04:
I think that is a big problem.

[00:50:18] Speaker 03:
So is there any way you can even calculate that?

[00:50:22] Speaker 04:
You can't, can you?

[00:50:23] Speaker 04:
That's an imponderable.

[00:50:24] Speaker 04:
No, I don't think you can.

[00:50:26] Speaker 04:
And I think that that also goes to the point.

[00:50:29] Speaker 00:
Do you argue that you can't blow?

[00:50:31] Speaker 00:
I don't understand.

[00:50:32] Speaker 00:
The district court didn't say that it can't be calculated.

[00:50:36] Speaker 04:
The District Court didn't put a number of hours on that calculus, and it said it was very difficult to... Well, you did it with respect to the 10 percent, right?

[00:50:46] Speaker 00:
She based her evaluation of the number of hours based on how many hours you represented it took on the 10 percent.

[00:50:52] Speaker 04:
Yeah, I think that those were where the government had agreed that those cases were closed.

[00:50:57] Speaker 03:
Right, well, so... Oh, so in other words, you're not even calculating how difficult it would be to determine

[00:51:03] Speaker 03:
whether a case is closed.

[00:51:05] Speaker 04:
Yes, and I think that that point and what I was just referencing... That's what I've got out of the brief.

[00:51:09] Speaker 04:
Right, so that, I think that goes primarily to the forward-looking relief that appellants are requesting.

[00:51:15] Speaker 04:
So you have, you know, they're requesting real-time docketing, they're requesting the unsealing after a certain time period of all cases or all matters, the presumptive unsealing, and so there that problem is a huge

[00:51:31] Speaker 00:
But that was eliminated, but they're not arguing about the real-time docketing anymore.

[00:51:36] Speaker 00:
They're not arguing about it.

[00:51:37] Speaker 04:
That's true, that's true.

[00:51:38] Speaker 00:
With respect to the question of whether the government agrees it's closed or not, we're nowhere near that issue.

[00:51:43] Speaker 00:
We're only talking about cases where the government agrees it's closed.

[00:51:50] Speaker 00:
At least I didn't read any part of the remedial request as being a right to dispute whether cases are actually closed or not.

[00:51:58] Speaker 00:
We begin with the assumption that the government decides this is closed.

[00:52:02] Speaker 00:
And if you can't tell, then you can't tell.

[00:52:04] Speaker 00:
Then it's left as an open investigation until

[00:52:07] Speaker 00:
I mean, some good faith on the part of the government is assumed.

[00:52:10] Speaker 00:
Of course, they can bring a request with respect to some specific case and dispute that.

[00:52:16] Speaker 00:
But I don't see anywhere in their proposal where they're arguing not only is there a right to access closed cases, but there's a right to dispute as a huge category what's closed.

[00:52:27] Speaker 00:
So I think, at least for my purposes, you should go along on the assumption that the government gets the benefit of doubt on whether it's closed.

[00:52:34] Speaker 00:
The government decides that question.

[00:52:37] Speaker 00:
Maybe someday somebody challenges that, but the government's expected to do the best it can to decide if it's closed.

[00:52:44] Speaker 03:
So we're not talking at all then about the burden on the government to make a determination as to whether the case is closed?

[00:52:52] Speaker 04:
Well, I think we still are.

[00:52:54] Speaker 00:
We still would have to decide whether it's closed.

[00:52:57] Speaker 00:
But if you can't decide, then you can't decide.

[00:53:00] Speaker 04:
Right.

[00:53:00] Speaker 04:
But I think that the request for relief implicates open

[00:53:05] Speaker 04:
And I take your point that they seem to have abandoned their quest for real-time docketing.

[00:53:11] Speaker 04:
But I heard appellants this morning still making the argument that after a period of time, everything should be unsealed.

[00:53:19] Speaker 04:
And I guess your point is only closed cases.

[00:53:21] Speaker 00:
So this is an element of the remedy that

[00:53:27] Speaker 00:
A, we don't have to decide today, and that they really weren't asking us to decide.

[00:53:32] Speaker 00:
As far as I can tell from the brief, I will ask, of course.

[00:53:34] Speaker 00:
But my understanding of the request at the end of their brief is set out what the legal standard is, send it back to the district court, and let the district court then make determinations.

[00:53:44] Speaker 00:
I understand that one of their proposals is after six months, notice of order shall cause, et cetera.

[00:53:52] Speaker 00:
I don't think that level of granular detail

[00:53:55] Speaker 00:
which I'm very grateful the district court is willing to address, but we don't have to address and so I don't think we need to worry about that.

[00:54:04] Speaker 00:
If they demand something that the district court concludes would put investigations at risk, then the district court so holds and they either appeal again or they're happy with what they got.

[00:54:16] Speaker 04:
I understand the court's point and I guess my response would be simply to urge the court that the burden

[00:54:23] Speaker 04:
on the district court and on the district court staff and on the U.S.

[00:54:27] Speaker 04:
Attorney's Office is a relevant and proper factor for the district court to have considered, not only at the remedy stage, but in the balancing process itself.

[00:54:38] Speaker 04:
And again, I would point the court to Nixon.

[00:54:40] Speaker 04:
Hubbard is implementing cases like Nixon.

[00:54:43] Speaker 04:
Hubbard didn't come out of thin air.

[00:54:45] Speaker 00:
It was... Nixon's the tape?

[00:54:47] Speaker 00:
Which cases?

[00:54:48] Speaker 04:
I think it's the case that's cited in the government's brief.

[00:54:51] Speaker 00:
Yeah, yeah, I'm just remembering the facts.

[00:54:52] Speaker 00:
What were the facts in Nixon?

[00:54:54] Speaker 04:
I think, yeah, I think it is the access to the tapes.

[00:54:57] Speaker 00:
Yeah, so it's a specific...

[00:55:00] Speaker 00:
You know, it's a specific document.

[00:55:01] Speaker 00:
It's not an entire category of everything.

[00:55:04] Speaker 04:
Right.

[00:55:04] Speaker 04:
But I think that what that... It is the tapes, right.

[00:55:07] Speaker 00:
I'm sorry.

[00:55:07] Speaker 00:
I think it was the tapes.

[00:55:08] Speaker 04:
What are you citing for?

[00:55:08] Speaker 04:
What proposition?

[00:55:09] Speaker 04:
Well, the proposition that the district court has broad discretion in light of the facts and circumstances to make its balancing.

[00:55:17] Speaker 04:
But to Judge Garland's point about that involved the specific materials, I would respond

[00:55:22] Speaker 04:
that here the district court has even more discretion, because you have this sort of unprecedented request for wholesale unsealing.

[00:55:30] Speaker 04:
I mean, the appellant said this morning this was unprecedented.

[00:55:33] Speaker 04:
This is a novel case.

[00:55:35] Speaker 04:
And to me, that gives the district court more, not less discretion.

[00:55:39] Speaker 03:
The question is, what does it... Well, this may not be novel vis-a-vis other district courts.

[00:55:44] Speaker 03:
There are other district courts that... And if other district courts have given relief similar to what the plaintiffs are seeking here,

[00:55:51] Speaker 03:
Then it's not so novel, is it?

[00:55:53] Speaker 03:
Well, I'm not aware of any district court that has.

[00:55:56] Speaker 03:
Okay, that's one question I wanted to ask.

[00:55:59] Speaker 03:
Is this unique to the District of Columbia circuit?

[00:56:04] Speaker 04:
And there's a California case in the district court that's cited by both parties that came out the same way.

[00:56:11] Speaker 04:
The requesters there, they wanted unsealing of large categories of information.

[00:56:17] Speaker 04:
and the district court rejected that.

[00:56:19] Speaker 04:
I'm not aware of any- This is the same kind of PEN?

[00:56:23] Speaker 04:
Yeah, the same materials, very similar to this case.

[00:56:26] Speaker 03:
Stored Communications PEN and PEN Register?

[00:56:30] Speaker 04:
Yes.

[00:56:30] Speaker 04:
So what I was going to say is that I'm not aware of any case that addresses this precise issue and has granted relief.

[00:56:40] Speaker 04:
There are meaning

[00:56:42] Speaker 04:
addressing these criminal investigative materials like pen register, trap and trace, Story Communications Act materials.

[00:56:51] Speaker 04:
There are cases that have granted relief and sometimes large cases that appellants have cited involving civil cases or docketing, but there's no case that involves criminal investigative materials where any court that I'm aware of has awarded relief of the sort appellants are

[00:57:12] Speaker 04:
requesting here on any basis, whether it's the First Amendment or the common law.

[00:57:17] Speaker 04:
The only cases that the parties have cited that are like this are this case and the case I mentioned from California, two district court cases where the appellants in that case did not get relief.

[00:57:33] Speaker 01:
Quick question about docket sheets.

[00:57:38] Speaker 01:
Plaintiffs make clear they're only interested in docket sheets for closed cases, which they're only getting a sample of, right, under the MOU.

[00:57:48] Speaker 01:
I don't understand that, is that right?

[00:57:50] Speaker 04:
They would be getting, if they, oh, you're saying historically, what have they gotten so far?

[00:57:58] Speaker 04:
What would they be entitled to, yeah, right, in closed cases?

[00:58:02] Speaker 04:
Retrospectively, they've gotten,

[00:58:05] Speaker 04:
extracted information in Penn Register and Trap and Trace.

[00:58:09] Speaker 04:
And they've gotten some... We're talking about the docket sheets.

[00:58:13] Speaker 04:
And they've gotten... Just the docket sheets?

[00:58:14] Speaker 04:
Right, they haven't gotten any docket sheets.

[00:58:17] Speaker 01:
Okay.

[00:58:17] Speaker 01:
Right.

[00:58:17] Speaker 01:
And what's the government's position about those under the law?

[00:58:20] Speaker 04:
Well, in addition to the burden, opponents have already said that they would be willing to redact.

[00:58:26] Speaker 04:
They don't want open cases.

[00:58:29] Speaker 04:
They want to redact personal information.

[00:58:31] Speaker 04:
So not only

[00:58:33] Speaker 04:
do you have the burden of obtaining those materials, which the district court pointed out.

[00:58:38] Speaker 04:
But I think during this process that the government and the district court and the appellants engaged in over the course of years, they determined that what would result after this material was redacted because of the form that it comes in wouldn't be that helpful.

[00:58:56] Speaker 04:
to appellants, they wouldn't glean that much information from it, it wouldn't be that helpful.

[00:59:02] Speaker 04:
And the reason is in part because there was no standardized practice for the filing of these things until 2017 when the district court imposed electronic filing and all of these matters were then filed electronically.

[00:59:17] Speaker 03:
Counsel, I want to go back to my, try to buttress my understanding of your burden

[00:59:26] Speaker 03:
You've agreed that prospectively, every six months you would provide X information for the last six months, right?

[00:59:39] Speaker 03:
Correct.

[00:59:40] Speaker 03:
10%.

[00:59:44] Speaker 03:
So what the district court is doing... No, no.

[00:59:46] Speaker 03:
I'm asking what your position is.

[00:59:49] Speaker 03:
It is 10% of the relevant orders.

[00:59:54] Speaker 03:
What is the 10%?

[00:59:55] Speaker 04:
The 10% is what the appellants have already received for the pen, register, and trap and trace materials.

[01:00:03] Speaker 04:
And it's extracting categories.

[01:00:06] Speaker 03:
Is it retrospective or prospective?

[01:00:08] Speaker 03:
Retrospective.

[01:00:09] Speaker 03:
What is your prospective position for every six months?

[01:00:12] Speaker 04:
Right.

[01:00:12] Speaker 04:
So our position is what the district court actually did, which is every six months to issue a report, the clerk's office would do that, and the report

[01:00:23] Speaker 04:
contains seven categories of information for all of these contested materials.

[01:00:30] Speaker 04:
And it's actually a very fulsome report.

[01:00:34] Speaker 04:
It contains, for example, the statutory authority, the statute that the government is investigating, the docket numbers.

[01:00:44] Speaker 03:
And that is not 10%.

[01:00:45] Speaker 03:
That's everything.

[01:00:46] Speaker 04:
That's everything.

[01:00:48] Speaker 03:
Right.

[01:00:48] Speaker 03:
I was a little confused about that.

[01:00:49] Speaker 04:
Right.

[01:00:50] Speaker 04:
Going forward, and the reason for that is because

[01:00:54] Speaker 04:
Starting in 2017 and continuing now, the government is electronically filing all of these materials with a standardized format.

[01:01:04] Speaker 03:
What are you not giving then?

[01:01:06] Speaker 03:
Or is it because, which causes the controversy with respect to prospective?

[01:01:12] Speaker 03:
What are you, you're giving everything, are you giving everything every six months that the petition, that the plaintiffs want?

[01:01:19] Speaker 04:
They, I understand them to be asking for the actual materials themselves.

[01:01:24] Speaker 04:
the documents and what they are getting is basically a summary of docket information for all of the matters for the six-month period and like I said there's seven categories of information so basically they're getting a summary which the district court calls a report issued every six months but I understood them to be asking for the actual materials and you know where that implicates

[01:01:53] Speaker 04:
I'm sorry, you're up.

[01:01:54] Speaker 03:
Go ahead, I don't understand why that's a problem.

[01:01:56] Speaker 03:
Why is that a problem?

[01:01:57] Speaker 04:
Right, so that implicates a burden beyond gleaning the information from the headings, but you know... Well, wait a minute.

[01:02:06] Speaker 03:
I don't understand that.

[01:02:07] Speaker 03:
That would be easier than creating a report, wouldn't it?

[01:02:10] Speaker 04:
Well, you'd have to get all the... you'd have to redact the information.

[01:02:14] Speaker 04:
So you couldn't just hand it

[01:02:16] Speaker 04:
out to the public.

[01:02:17] Speaker 04:
You'd have to redact it.

[01:02:18] Speaker 03:
You'd have to look at every document.

[01:02:19] Speaker 04:
Right.

[01:02:20] Speaker 04:
So that itself is an issue.

[01:02:22] Speaker 03:
And what are you redacting?

[01:02:24] Speaker 04:
What is your agreement you're redacting for?

[01:02:26] Speaker 04:
You're redacting for personal information and other case information that could implicate some sort of law enforcement interest.

[01:02:39] Speaker 03:
So that obviously presents a burden to you.

[01:02:42] Speaker 03:
But you have no articulation of what the amount of that burden is.

[01:02:46] Speaker 03:
We don't.

[01:02:47] Speaker 03:
It wasn't quantified in the district court.

[01:02:48] Speaker 04:
And then I would add, Your Honor's point before, that determining when a matter is closed is implicated there.

[01:02:56] Speaker 04:
And that is a big, I wouldn't just call it a burden, that's a big issue.

[01:03:00] Speaker 04:
Because you've got to figure out whether the matter is open or closed, whether it's related to an open investigation.

[01:03:07] Speaker 04:
How much of that do you have to do even for the six month report?

[01:03:12] Speaker 04:
They are pulling public, we don't have to do that.

[01:03:16] Speaker 04:
because they are pulling information that the parties and the district court have agreed is public, or it could be made public already.

[01:03:28] Speaker 04:
So I guess I would say it's not a factor for the reports, but for anything beyond the report, it would be a factor.

[01:03:35] Speaker 04:
And then it would implicate all the things that Your Honor mentioned, like the district court specified, for example, or it mentioned, and we mentioned in our brief

[01:03:45] Speaker 04:
for the government to figure out if an investigation is closed.

[01:03:48] Speaker 04:
It's got to canvas the agents.

[01:03:50] Speaker 04:
It's got to find the assigned assistant US attorney.

[01:03:53] Speaker 04:
It's got to track down parallel or spinoff investigations.

[01:03:58] Speaker 04:
It's really very difficult.

[01:04:00] Speaker 04:
So that was one of the reasons that the government had always opposed

[01:04:06] Speaker 04:
the imposition of the sort of time period where everything becomes public after the... You mean a default.

[01:04:13] Speaker 04:
Right, right, a default unsealing.

[01:04:15] Speaker 04:
And the character of these documents doesn't lend itself to that.

[01:04:20] Speaker 04:
And Judge Garland's hypothetical before, these are more like the

[01:04:25] Speaker 04:
Briefs that are filed on the docket are public records.

[01:04:29] Speaker 04:
They're part of more like the trial process of the appellate court, of this court.

[01:04:34] Speaker 04:
These materials are real.

[01:04:35] Speaker 03:
Your argument is these are like grand jury.

[01:04:36] Speaker 04:
This is like grand jury material.

[01:04:38] Speaker 04:
This is investigative criminal material.

[01:04:40] Speaker 04:
And it goes back to the point before.

[01:04:42] Speaker 04:
No court has awarded this sort of a relief that I am aware of.

[01:04:48] Speaker 04:
And the parties haven't identified any case

[01:04:51] Speaker 04:
that is like this one, that's awarded appellants the relief that they're seeking.

[01:04:58] Speaker 00:
Thank you.

[01:04:59] Speaker 00:
Thank you.

[01:05:01] Speaker 00:
I know there's no time, but everybody's going over today, so we'll give you a couple more minutes.

[01:05:07] Speaker 00:
Thank you, Norman.

[01:05:08] Speaker 00:
You might want to start by addressing that Latinx question.

[01:05:11] Speaker 05:
I will.

[01:05:12] Speaker 05:
First, the district court opinion that the government cited, the Henry Granick decision, which is also cited in our brief – their briefing and addressed in our briefing, actually relied for the point of administrative burden on the district court decision that's on appeal here.

[01:05:25] Speaker 05:
So it's a bit circular for the government to point to that as a basis for reliance.

[01:05:29] Speaker 05:
There is – it is true – That's not quite circular.

[01:05:32] Speaker 03:
It just means somebody else agreed with it.

[01:05:35] Speaker 05:
It's true, Your Honor.

[01:05:36] Speaker 05:
There is only one Court of Appeals decision that addresses public access to any type of material, the Applebaum case, any of the types of materials that issue here, the Section 2703D materials, which the court, the Fourth Circuit held the common law presumption of access does apply to as we argue here.

[01:05:56] Speaker 05:
Just a couple of clarifying points.

[01:05:58] Speaker 03:
What about my concerns?

[01:06:00] Speaker 05:
I think my clarifying points will actually go to your concerns, Your Honor.

[01:06:05] Speaker 05:
This notion of determining whether or not matters open or closed and then the administrative burden purportedly associated with that, that was raised by the government at the district court with respect to old matters, so matters in 2012, 2013, matters that were

[01:06:20] Speaker 05:
where the U.S.

[01:06:23] Speaker 05:
Attorney's Office indicated that maybe the responsible attorney wasn't even there anymore, was no longer working with the government, and so it wasn't clear to them how the case had been resolved.

[01:06:31] Speaker 05:
I think with respect to the prospective relief that we've requested, which is effectively that the government attorney who's responsible actually move to unseal once the matter is closed,

[01:06:43] Speaker 05:
that would be addressed.

[01:06:45] Speaker 05:
And there's no automatic unsealing.

[01:06:46] Speaker 05:
I want to be sure that that's clear as well.

[01:06:49] Speaker 03:
I don't understand.

[01:06:51] Speaker 03:
The attorney would move to unseal under your recommendation?

[01:06:56] Speaker 05:
And that's consistent with what the U.S.

[01:06:58] Speaker 05:
Attorney's Office does in other criminal matters for other types of records.

[01:07:02] Speaker 05:
When a matter is sealed.

[01:07:04] Speaker 03:
Never grand jury subpoenaed.

[01:07:06] Speaker 05:
No, Your Honor.

[01:07:06] Speaker 05:
And that's part of the reason why I think the grand jury's subpoena analysis, or analogy rather, is very inapt.

[01:07:12] Speaker 05:
It pulls from the Fourth Circuit's decision in Applebaum, but it's irreconcilable with the Applebaum court's decision that these are judicial records subject to at least a common law presumption of access.

[01:07:24] Speaker 03:
No, but okay, but here's the question.

[01:07:27] Speaker 03:
If what I'm concerned about is going forward, if you get the actual documents, the applications, the order, so forth,

[01:07:41] Speaker 03:
even redacted, right?

[01:07:42] Speaker 03:
You're assuming they're redacted, right?

[01:07:45] Speaker 03:
I would assume so.

[01:07:48] Speaker 03:
Don't you see that that presents an enormous problem for the Justice Department with respect to any specific case?

[01:07:57] Speaker 03:
They have to determine whether there's any spin-off on that case anywhere else, maybe in another U.S.

[01:08:06] Speaker 03:
Attorney's office?

[01:08:08] Speaker 05:
I think with respect to the attorneys who are actually working on those matters, that actually wouldn't be incredibly burdensome.

[01:08:14] Speaker 05:
I can understand why it would be difficult to recreate that going back five years.

[01:08:18] Speaker 03:
You're thinking of that case as a self-contained funnel, which only two or three lawyers were working on.

[01:08:27] Speaker 03:
But it may spin off into the Second Circuit or into the Ninth Circuit.

[01:08:32] Speaker 03:
And what do they do about that?

[01:08:34] Speaker 05:
I would note, Your Honor, that I think that that's probably a very, based on the six-month reports that we've actually seen from the district court, which do indicate when a matter is closed, it looks like most of the matters that are listed on these are in fact closed matters, which would suggest they don't last, the vast majority of these types of matters don't last.

[01:08:51] Speaker 05:
more than six to 12 months.

[01:08:54] Speaker 05:
And so I think that while that may be the case and maybe that is a compelling interest that overcomes the common law presumption of access and requires ceiling in those particular matters for a longer period of time, I think we've allowed for that.

[01:09:07] Speaker 05:
I think that the perspective relief we recommend to the district court allows for that.

[01:09:12] Speaker 01:
In fact, those are covered by the Hubbard factors, right?

[01:09:16] Speaker 01:
Aren't they?

[01:09:17] Speaker 01:
what you're now talking about.

[01:09:18] Speaker 01:
That's one of the Hubbard factors.

[01:09:26] Speaker 01:
The strength of any privacy – the interest in keeping

[01:09:33] Speaker 01:
Secret or sealed, right?

[01:09:35] Speaker 01:
That's not a burden question.

[01:09:36] Speaker 01:
That's the government's interest in protecting the information.

[01:09:39] Speaker 05:
That's correct.

[01:09:40] Speaker 01:
That's a Hubbard factor.

[01:09:42] Speaker 01:
You don't disagree with that, right?

[01:09:43] Speaker 05:
No, we don't disagree with application of the Hubbard factors with respect to that.

[01:09:47] Speaker 01:
But that's different from the administrative burden.

[01:09:49] Speaker 05:
That is correct, Your Honor.

[01:09:52] Speaker 05:
Thank you, Your Honor.

[01:09:56] Speaker 00:
OK.

[01:09:57] Speaker 00:
Another interesting case.

[01:09:58] Speaker 00:
Thank you all very much for the presentation.

[01:10:00] Speaker 00:
So we'll take another submission.