In Re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corporation. Appeal of Pulitzer Publishing Company and Edward H. Kohn

855 F.2d 569, 15 Media L. Rep. (BNA) 1969, 1988 U.S. App. LEXIS 11687
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 26, 1988
Docket88-2039
StatusPublished
Cited by18 cases

This text of 855 F.2d 569 (In Re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corporation. Appeal of Pulitzer Publishing Company and Edward H. Kohn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corporation. Appeal of Pulitzer Publishing Company and Edward H. Kohn, 855 F.2d 569, 15 Media L. Rep. (BNA) 1969, 1988 U.S. App. LEXIS 11687 (8th Cir. 1988).

Opinion

855 F.2d 569

57 USLW 2163, 15 Media L. Rep. 1969

In re SEARCH WARRANT FOR SECRETARIAL AREA OUTSIDE OFFICE OF
Thomas GUNN, McDonnell Douglas Corporation.
Appeal of PULITZER PUBLISHING COMPANY and Edward H. Kohn.

No. 88-2039.

United States Court of Appeals,
Eighth Circuit.

Submitted July 29, 1988.
Decided Aug. 26, 1988.

Stephen B. Higgins, St. Louis, Mo., for appellants.

Joseph Aronica, Asst. U.S. Atty., Alexandria, Va., for appellee.

Veryl L. Riddle, St. Louis, Mo., for amicus curiae McDonnell Douglas.

Norman London, St. Louis, Mo., for amicus curiae Thomas Gunn.

Before HEANEY, McMILLIAN and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The Pulitzer Publishing Co., the publisher of the St. Louis Post-Dispatch, a daily newspaper of general circulation in the St. Louis metropolitan area, and Edward H. Kohn, the newspaper's assistant city editor for projects (hereinafter appellants), appeal from a final order entered in the District Court1 for the Eastern District of Missouri denying their motion to immediately unseal the affidavits and other materials attached to two search warrants. In re Search Warrant for Secretarial Area, No. 88-MISC-260 (E.D.Mo. July 15, 1988) (order). For reversal appellants argue the district court erred in denying the motion to unseal because no compelling government interest justified denial of their right to immediate access to these documents and in failing to make specific findings and to make line-by-line redactions of the documents. For the reasons discussed below, we affirm the order of the district court.

FACTUAL BACKGROUND

On June 14, 1988, federal agents simultaneously served and executed more than 40 search warrants at various sites across the nation in connection with a nationwide investigation conducted by the Federal Bureau of Investigation and the Naval Investigation Service of alleged fraud and bribery in the Department of Defense and in the defense industry. The nature and scope of the investigation and the dramatic manner in which the search warrants were executed attracted intense public interest and considerable news media attention. Two of these search warrants were issued by the District Court for the Eastern District of Missouri for the offices of two employees of the McDonnell Douglas Corp. (MDC), Thomas Gunn and Linda Ogle, Gunn's secretary. MDC is one of the nation's largest defense contractors and its corporate offices are located in metropolitan St. Louis. The search warrant for the secretarial office, the description of the property to be seized, and the receipt for property seized were filed in the district court clerk's office and are open to the public. However, pursuant to ex parte motions filed by the government and granted by the district court, the search warrant for Gunn's office, the attached affidavits, and all other materials were sealed.

On July 1, 1988, appellants informally sought access to the sealed documents. There was no response to this request, and on July 6, 1988, appellants filed a motion to unseal the affidavits and other materials, pursuant to Fed.R.Crim.P. 41. The government, MDC and Gunn opposed unsealing the affidavits and other documents. MDC's response in opposition to appellants' motion to unseal was itself sealed upon MDC's motion. On July 15, 1988, the district court denied the motion to unseal and continued the seal for an additional thirty days. However, because the government did not oppose the unsealing of certain portions of the affidavits, the district court unsealed the description of the affiant, the description of the premises, and subsections A and B only of Section II of the affidavits.

The district court stated that, in general, the public and the press have a right to immediate access to documents filed in court that is based upon both the common law and the first amendment. Slip op. at 2. The district court further noted, however, that the right of public access to court records was not absolute and that public access could be restricted if the restriction was necessary to protect a compelling government interest and was narrowly tailored to serve that interest. Id. at 3. The district court decided that unsealing the affidavits and other materials would prejudice the government's on-going investigation by identifying as-yet-unnamed targets, by revealing the scope, status and direction of the investigation, by affording individuals the opportunity to tailor their testimony and destroy documents and other evidence, and by prematurely disclosing the existence of wiretaps and other investigatory tools. Id. at 3-4. The district court reviewed the sealed documents and determined that redaction on a line-by-line basis was impracticable because of the complex and interrelated nature of the allegations and the large number of individuals and activities involved. Id. at 4.

Appellants promptly filed a notice of appeal and a petition for immediate appellate review, expedited consideration and emergency relief. We granted the request for expedited appeal, requested expedited briefing, and heard oral arguments on July 29, 1988. MDC and Gunn filed briefs and presented oral arguments as amici curiae.

APPEALABILITY

We first consider whether the district court order is appealable. Appellants argue that this court has appellate jurisdiction under 28 U.S.C. Sec. 1291 because the district court order is a final order or, alternatively, a final collateral order. Amicus MDC argues that the district court order is not appealable because it is not final. The district court order denied the motion to unseal, "pending further development of the investigation, but not later than 30 days from the date of this order, unless further extended by the Court." Slip op. at 6. Thus, MDC argues that because the district court will reconsider the motion to unseal in 30 days, the district court cannot be said to have conclusively resolved the issue and this appeal is premature. The district court order is arguably ambiguous. However, we believe the July 15 order is final for purposes of appeal. The district court order denied appellants' motion to unseal and thus conclusively rejected appellants' asserted right to immediate access to these documents. Deferral of appellate review pending district court reconsideration after 30 days, or until after additional extensions of time have expired, would effectively deny appellants much of the relief they seek, that is, immediate access. See In re New York Times Co., 828 F.2d 110, 113 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988); see also 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Secs. 3912-3913 (1976).

Although we have decided that the district court order is final for purposes of appeal, our decision is not based upon the collateral order exception. We do not believe the collateral order exception is applicable because there is no "underlying" proceeding in this case. The district court order is not a component of another proceeding. Usually motions for public access to court proceedings or records are filed by the press in connection with pending criminal or civil proceedings.

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855 F.2d 569, 15 Media L. Rep. (BNA) 1969, 1988 U.S. App. LEXIS 11687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-search-warrant-for-secretarial-area-outside-office-of-thomas-gunn-ca8-1988.