United States v. Index Newspapers LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-35243

Plaintiff-Appellee,

D.C. No.

v. 12-gj-00149

INDEX NEWSPAPERS LLC, DBA The

Stranger, OPINION

Intervenor-Appellant,

MATTHEW DURAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted

February 5, 2014—Seattle, Washington

Filed September 5, 2014

Before: Raymond C. Fisher, Ronald M. Gould,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

2 UNITED STATES V. INDEX NEWSPAPERS

SUMMARY*

Grand Jury / Contempt Proceedings

The panel affirmed in part and reversed in part the district

court’s order denying in part a newspaper’s motion to unseal

transcripts and filings related to grand jury witness Matthew

Duran’s contempt and continued confinement proceedings.

The panel held that direct appeal, rather than a petition for

writ of mandamus, was the appropriate procedure for the

newspaper to seek review of the district court’s order; and the

panel dismissed the newspaper’s petition for a writ of

mandamus.

The panel held that there is no First Amendment public

right of access to: (1) filings and transcripts relating to

motions to quash grand jury subpoenas; (2) the closed

portions of contempt proceedings containing discussion of

matters occurring before the grand jury; or (3) motions to

hold a grand jury witness in contempt. The panel also held

that the public does have presumptive First Amendment

rights of access to: (1) orders holding contemnors in contempt

and requiring their confinement; (2) transcripts and filings

concerning contemnors’ continued confinement; (3) filings

related to motions to unseal contempt files; and (4) filings in

appeals from orders relating to the sealing or unsealing of

judicial records. The panel further held that the recognized

rights of access were categorical, but were not unqualified.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. INDEX NEWSPAPERS 3

The panel concluded that there was no substantial

probability that disclosing the order holding Duran in

contempt would jeopardize grand jury secrecy, and that

redacting the remaining documents would adequately protect

the government’s compelling interest in maintaining the

secrecy of the grand jury. The panel also held that it was not

sufficient for documents to be declared publically available

without a meaningful ability for the public to find and access

those documents. Finally, because the government did not

offer any alternatives, the panel held that the district court

must unseal its docket to allow the public to access those

transcripts and filings to which it was entitled.

The panel affirmed the district court’s decision to

maintain under seal: the transcript and filings related to

Duran’s motion to quash; the portion of the transcript of

Duran’s contempt proceedings during which matters

occurring before the grand jury were discussed; and the

motion to hold Duran in contempt. The panel remanded for

the district court to unseal the electronic and paper docket

filed in Duran’s contempt proceeding. The panel reversed the

district court’s decision to maintain under seal the order

holding Duran in contempt and ordering him confined, and

remanded for the district court to unseal that order. The panel

remanded for the district court to unseal the transcript and the

filings related to Duran’s confinement status hearing, the

filings related to Duran’s request for release, and the district

court filings related to the newspaper’s motion to unseal,

subject to any redactions deemed necessary. The panel

granted the newspaper’s motion to unseal the file in this

appeal, subject to possible redactions.

4 UNITED STATES V. INDEX NEWSPAPERS

COUNSEL

Neil M. Fox (argued), Law Office of Neil Fox, PLLC, Seattle,

Washington, for Invervenor-Appellant Index Newspapers

LLC, dba The Stranger.

Kimberly N. Gordon (argued), Law Offices of Gordon &

Saunders, PLLC, Seattle, Washington, for Defendant-

Appellee Matthew Duran.

Michael S. Morgan (argued) and Michael W. Dion, Assistant

United States Attorneys; Jenny A. Durkan, United States

Attorney, Western District of Washington, Seattle,

Washington, for Plaintiff-Appellee United States.

OPINION

CHRISTEN, Circuit Judge:

This case requires us to decide the extent to which the

public’s qualified right of access to court proceedings must

give way to the need for secrecy when a grand jury witness is

held in civil contempt and confined. We consider the district

court’s order granting in part and denying in part a

newspaper’s motion to unseal transcripts and filings related

to a grand jury witness’s contempt and continued

confinement proceedings.

All of the parties agree that there is no public right of

access to grand jury transcripts, but Index Newspapers, LLC,

dba The Stranger, asserts that once a grand jury witness is

subject to ancillary contempt proceedings, any part of the

contempt hearing transcript and related filings not covered by

UNITED STATES V. INDEX NEWSPAPERS 5

Federal Rule of Criminal Procedure 6(e) must be open to the

public. After full consideration of the issues raised by this

case, we conclude there is a First Amendment right of access

to some of the transcripts and filings related to Matthew

Duran’s contempt proceeding. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court’s ruling in

part, reverse in part, and remand.

BACKGROUND

On May 1, 2012, violence broke out on the streets of

downtown Seattle and demonstrators dressed in black

vandalized buildings and cars. The May Day demonstrators

smashed windows, used large sticks to damage buildings,

spray-painted cars, and committed other crimes. The William

Kenzo Nakamura United States Courthouse was one of the

buildings damaged during the demonstration. These events

were widely publicized by the news media, and a reporter for

The Stranger, a weekly newspaper based in Seattle, began

writing about the grand jury investigation that followed.

I. Contempt proceedings ancillary to the grand jury

investigation

Several months after the May Day demonstration,

Matthew Duran and K.O. were subpoenaed to testify before

the federal grand jury in the Western District of Washington.

Both Duran and K.O. filed motions to quash the grand jury

subpoenas, and both motions were denied. Duran and K.O.

refused to testify before the grand jury, and separate contempt

proceedings were held in the district court. The two contempt

proceedings were conducted in a nearly identical fashion, just

a few hours after each witness refused to testify. The district

court began with the courtroom closed to the public and heard

6 UNITED STATES V. INDEX NEWSPAPERS

testimony reciting portions of the grand jury transcript in

which Duran and K.O. refused to answer questions asked of

them. Next, the district court made findings of fact based on

the record and then opened the courtroom. The district court

announced that Duran and K.O. were in contempt and ordered

them confined. The court also explained that Duran and K.O.

would be released if they agreed to testify. The court’s

written orders stated that Duran and K.O. could be confined

until either the grand jury, and all of its extensions, expired,

or until eighteen months passed.1

During the open portion of Duran’s contempt proceeding,

the district court explained: “It is not [the] court’s preference

to have [Duran] languish for an indefinite period of time

without any direct contact or communication with [the]

court.” The court scheduled a status hearing approximately

two weeks after the contempt hearing so Duran could return

to court and reconsider whether he was willing to testify.

Prior to the status hearing, Duran filed a brief arguing that his

confinement should be terminated.

Duran’s status hearing was held in the same fashion as his

contempt hearing; the first part of the hearing was closed to

the public, and then the courtroom was opened. During the

open portion of the status hearing, Duran’s attorney explained

that Duran had been held in solitary confinement almost the

entire time since he was ordered confined. The district court

found that Duran remained in contempt because he continued

to refuse to testify, that he had access to his counsel while

confined, and that his detention had not become more

1

Duran unsuccessfully appealed the district court’s order holding him

in contempt and ordering him confined. We refer to that appeal as

Duran’s “recalcitrant witness appeal.”

UNITED STATES V. INDEX NEWSPAPERS 7

punitive than coercive. The government suggested that the

district court set the next status hearing six months out or not

set a date at all. Duran’s counsel took the position that the

court should not schedule another status hearing because her

client was not going to change his mind, even after being

confined for a longer period of time. In the end, the court did

not schedule a follow-up status hearing, but it did reiterate

that Duran was free to contact the court through counsel and

that the court would make itself available to Duran if he

changed his mind and decided to comply with the order

directing him to testify before the grand jury.

About five months later, Duran and K.O. filed motions to

terminate their confinement. They persisted in their refusal

to testify but argued that confinement had become more

punitive than coercive. The government opposed the

motions. Six days after the motions to terminate confinement

were filed, the district court issued an order requiring that

Duran and K.O. be released from custody no later than the

following day. The court found that Duran and K.O. had

been held in solitary confinement “[f]or a substantial portion

of [their] confinement,” that “[t]heir physical health ha[d]

deteriorated sharply and their mental health ha[d] also

suffered,” and that “[t]heir confinement ha[d] cost them; they

ha[d] suffered the loss of jobs, income, and important

personal relationships.” The district court concluded it was

unlikely that continued confinement would coerce Duran or

K.O. to testify.

II. The Stranger’s motion to unseal Duran’s and K.O.’s

files

All motions and accompanying papers related to grand

jury proceedings are sealed as a matter of course in the

8 UNITED STATES V. INDEX NEWSPAPERS

Western District of Washington. See Local Rules, W.D.

Wash. CrR 6(j)(2) (“The Clerk’s office shall accept for filing

under seal without the need for further judicial authorization

all motions and accompanying papers designated by counsel

as related to Grand Jury matters.”). Presumably due to this

rule, the district court records in Duran’s and K.O.’s contempt

cases were sealed, including the paper and electronic docket

sheets for each file.2 That is, the public was not able to access

the paper or electronic list of documents filed in either

contempt case, nor were the documents themselves available

for the public to view. In fact, a member of the public who

tried to access either file would not have been able to find any

record of either proceeding.

While Duran and K.O. were still in custody, The Stranger

filed two nearly identical motions with the district court to

unseal any portions of the district court records that did not

contain matters covered by the grand jury secrecy

requirements of Federal Rule of Criminal Procedure 6(e).

The Stranger’s motions recognized that some of the relevant

documents may be subject to redaction. The government

opposed the motions to unseal, arguing that the materials

sought were properly sealed because they disclosed “matters

occurring before the grand jury.” Duran and K.O. filed

declarations in support of the motions to unseal, and The

Stranger filed a reply.

The district court granted the motions to unseal in part

and denied them in part. It explained that there is no public

right of access to grand jury proceedings and, likewise, no

2

We use the word “record” to mean the court’s entire file, including all

filings, the audio recordings from the hearings, and all other documents in

the court’s file, such as the court’s log notes and orders.

UNITED STATES V. INDEX NEWSPAPERS 9

public right of access to the court record of proceedings held

ancillary to grand jury investigations. The court

acknowledged that all records having any connection to the

grand jury are not necessarily secret. Quoting Federal Rule

of Criminal Procedure 6(e)(5), it stated, “a witness who the

grand jury subpoenas has a ‘right to an open hearing in a

contempt proceeding.’” Qualifying this statement, the district

court noted that the public has no right to access the portions

of the contempt hearing in which grand jury secrets are

disclosed, such as when grand jury testimony is read. The

court explained that it was unclear exactly what The Stranger

wanted unsealed, but it assumed that The Stranger wanted the

court to unseal as much of Duran’s contempt record as

possible. The court reasoned that the record The Stranger

sought was “a mix of secret grand jury material, grand jury

material that may have lost its secrecy, legal argument, banal

information, and more.” It also stated that “[i]t is perhaps

possible to assess every document in these files to redact

secret grand jury material and divulge the remainder,” but

doing so “would likely [create] an incomplete and sometimes

indecipherable ‘court file’ that would be as likely to mislead

the public as to enlighten it.” It ruled that the court had no

obligation “to sift through these grand jury proceedings to

determine what is secret and what is not.”

The district court concluded:

The public has a right to the transcripts of the

open portions of the hearings, but no more.

As to the written material submitted to the

court in connection with the contempt

proceedings, they contain grand jury

information, and they are not subject to the

10 UNITED STATES V. INDEX NEWSPAPERS

public right of access that applies to contempt

hearings.

The district court ordered Duran’s and K.O.’s files to remain

sealed, but explained that “The Stranger, like any other

member of the public, is entitled to access the transcripts of

the public portions of [the contempt] hearings.”

The Stranger petitions this court for a writ of mandamus

directing the United States District Court for the Western

District of Washington to unseal the portions of Duran’s and

K.O.’s contempt files that do not contain matters shielded by

Rule 6(e). The Stranger also appeals from the district court’s

order denying in part its motion to unseal the court’s record

of Duran’s contempt proceeding. Because we decide The

Stranger is entitled to bring a direct appeal, we dismiss the

petition for writ of mandamus. This opinion does not address

the district court’s order denying The Stranger’s motion to

unseal the court’s record of K.O.’s contempt proceeding

because The Stranger did not appeal that order.

STANDARD OF REVIEW

We review de novo whether the public has a right of

access to the judicial record of court proceedings under the

First Amendment, the common law, or Federal Rule of

Criminal Procedure 6(e), because these are questions of law.

See Times Mirror Co. v. United States, 873 F.2d 1210, 1212

(9th Cir. 1989). When the district court conscientiously

balances the common law presumption in favor of access

against important countervailing interests, we review a

decision whether or not to unseal the judicial record for abuse

of discretion. See San Jose Mercury News, Inc. v. U.S. Dist.

Court, 187 F.3d 1096, 1102 (9th Cir. 1999).

UNITED STATES V. INDEX NEWSPAPERS 11

DISCUSSION

I. Direct appeal was the appropriate procedure for The

Stranger to seek review of the district court’s order.

The Stranger filed a petition for a writ of mandamus in

this court. It separately appealed the district court’s order

partially denying its motion to unseal the record of Duran’s

contempt proceeding. We conclude that direct appeal is the

appropriate mechanism for The Stranger to seek review of the

district court’s order denying, in part, The Stranger’s motion.

Mandamus “is a drastic and extraordinary remedy

reserved for really extraordinary causes.” Cheney v. U.S.

Dist. Court, 542 U.S. 367, 380 (2004) (quoting Ex parte

Fahey, 332 U.S. 258, 259–60 (1947)) (internal quotation

marks omitted). This court considers the following five

factors in determining whether mandamus relief is

appropriate:

(1) whether the petitioner has no other means

to obtain the desired relief; (2) whether the

petitioner will be damaged or prejudiced in

any way not correctable on appeal;

(3) whether the district court’s order is clearly

erroneous as a matter of law; (4) whether the

district court’s order is an oft repeated error or

manifests a persistent disregard of the federal

rules; and (5) whether the district court’s

order raises new and important problems or

issues of first impression.

United States v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012)

(citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55

12 UNITED STATES V. INDEX NEWSPAPERS

(9th Cir. 1977)). “[M]andamus may not issue so long as

alternative avenues of relief remain available.” Cheney,

542 U.S. at 379.

The first consideration for determining whether to issue

a writ of mandamus is whether “the party seeking issuance of

the writ [has any] other adequate means to attain the relief he

desires—a condition designed to ensure that the writ will not

be used as a substitute for the regular appeals process.” Id. at

380–81 (citation and internal quotation marks omitted). The

Stranger filed both a petition for writ of mandamus and an

appeal of the district court’s order because it concluded: “It

is not clear whether this Court has jurisdiction to hear this

appeal, or whether the only remedy is by means of mandamus

review.” The Stranger was unsure it could appeal because it

was not a party to Duran’s contempt proceeding, and it was

uncertain whether the district court’s order denying its motion

to unseal was a final appealable order. The Stranger hedged

its bets and argued that, if mandamus was not the exclusive

route to review, then the district court’s order must be final

and appealable. The government argued that the district

court’s order was a final order subject to appellate review,

and that our court should not consider the petition for writ of

mandamus.

Though The Stranger initially professed concern that it

lacked party status, The Stranger and the government agreed

at oral argument before our court that The Stranger

“intervened” in Duran’s contempt proceeding. This fact is

not immediately apparent from the record, but the local civil

rules do permit non-parties to file motions to unseal, and the

district court treated The Stranger as an intervenor. See Local

Rules, W.D. Wash. LCR 5(g)(8) (“A non-party seeking

access to a sealed document may intervene in a case for the

UNITED STATES V. INDEX NEWSPAPERS 13

purpose of filing a motion to unseal the document.”).3 Both

the Supreme Court in Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211 (1979), and our court in In re

Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778

(9th Cir. 1982), allowed non-parties to appeal when their

petitions to the district court for information related to a

grand jury investigation were denied. See Douglas Oil,

441 U.S. at 216–17; Special Grand Jury, 674 F.2d at 779–80.

Here, mandamus is unavailable because the district

court’s order was a final, appealable order. Duran’s motion

for termination of confinement was granted on February 27,

2013, and he was released. The order granting his release

ended Duran’s civil contempt proceeding. The same day the

release order was issued, the district court denied The

Stranger’s motion for reconsideration of its order partially

denying The Stranger’s motion to unseal Duran’s contempt

record. There will be no further order or appealable final

judgment from which The Stranger can seek review because

the district court’s order on The Stranger’s motion “finally

adjudicated the matter presented” and “resolved all issues that

were raised.” Times Mirror, 873 F.2d at 1212 (citation and

internal quotation marks omitted).

Direct appeal is available because the district court’s

order “dispose[d] of all of the contentions [raised by The

Stranger] and terminate[d] a separate proceeding pending

before the grand jury court.” Douglas Oil, 441 U.S. at 233

3

In contrast, an outside party cannot intervene in a grand jury

proceeding. See In re Special Grand Jury (for Anchorage, Alaska),

674 F.2d 778, 782 (9th Cir. 1982) (“The Rules of Criminal Procedure

include no provision that authorizes, on its face, intervention by a member

of the public in a grand jury proceeding.”).

14 UNITED STATES V. INDEX NEWSPAPERS

(Rehnquist, J., concurring). This is consistent with a recent

decision by our court concluding that we have jurisdiction to

review “an order denying a motion to unseal or seal

documents” filed in the district court because such an order

“is appealable either as a final order under 28 U.S.C. § 1291

or as a collateral order.” Oliner v. Kontrabecki, 745 F.3d

1024, 1025 (9th Cir. 2014) (quoting Foltz v. State Farm Mut.

Auto. Ins. Co., 331 F.3d 1122, 1129 (9th Cir. 2003)) (internal

quotation marks omitted). Because The Stranger had the

ability to appeal the district court’s order on its motion to

unseal the record of Duran’s contempt proceeding, it may not

obtain mandamus relief. See Cheney, 542 U.S. at 379 (where

other relief is available, “mandamus may not issue”). We

therefore dismiss the petition for writ of mandamus and

consider The Stranger’s appeal.

II. The public’s right of access to the record of contempt

proceedings held ancillary to a grand jury

investigation

In its motion to unseal Duran’s contempt file, The

Stranger requested public “access to the court files regarding

the contempt citations related to Matthew Duran . . . , the

transcripts of the contempt hearings, and any briefing.” The

Stranger acknowledged that some of Duran’s contempt file

would be shielded by Rule 6(e), and the district court

assumed The Stranger wanted the court to unseal as much of

the record as possible.

On appeal, The Stranger clarified that its request includes

public access to the district court’s docket related to Duran’s

UNITED STATES V. INDEX NEWSPAPERS 15

contempt proceeding.4 The request also includes public

access to the following three classes of filings and transcripts:

(1) Duran’s motion to quash his subpoena; (2) Duran’s

contempt hearing and the subsequent hearing related to

Duran’s continued confinement; and (3) The Stranger’s

motion to unseal the record of Duran’s district court contempt

proceeding. The Stranger asserts that the public has a right

of access to these filings and transcripts under the First

Amendment, the common law, and Rule 6(e). The

government responds that because matters occurring before

the grand jury are secret under Rule 6(e), and because matters

occurring before the grand jury are necessarily discussed in

contempt proceedings conducted ancillary to grand jury

investigations, there is no public right of access to the

categories of documents and transcripts sought by The

Stranger.

America has a long history of distrust for secret

proceedings. See In re Oliver, 333 U.S. 257, 268–69 (1948)

(“[D]istrust for secret trials has been variously ascribed to the

notorious use of this practice by the Spanish Inquisition, to

the excesses of the English Court of Star Chamber, and to the

French monarchy’s abuse of the lettre de cachet.” (footnotes

omitted)). Pursuant to the First Amendment, there is a

presumed public right of access to court proceedings. See

Oregonian Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462,

1465 (9th Cir. 1990). Secret proceedings are the exception

rather than the rule in our courts. See id. Nevertheless, one

very well established exception is grand jury proceedings.

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9

4

In this opinion, we use the word “docket” to refer to the electronic and

paper list of documents filed with the courts, not the documents

themselves.

16 UNITED STATES V. INDEX NEWSPAPERS

(1986) (Press-Enterprise II). Because the grand jury is an

integral part of the criminal investigatory process, these

proceedings are always held in secret. See id. This secrecy

is justified by the need to encourage witnesses to come

forward voluntarily without fear that those whom they testify

against will know they did so, to encourage witnesses to

testify fully, to ensure that targets of a grand jury

investigation do not flee or try to influence grand jurors, and

to assure that individuals who are accused but exonerated are

not held to public ridicule. See Douglas Oil, 441 U.S. at

218–19.

The Supreme Court has instructed that the following two

questions should be asked to determine whether the First

Amendment right of access applies to a particular proceeding:

(1) “whether the place and process have historically been

open to the press and general public,” and (2) “whether public

access plays a significant positive role in the functioning of

the particular process in question.” Press-Enterprise II,

478 U.S. at 8. This test is commonly referred to as the

“experience and logic test.” See, e.g., id. at 9. The same test

applies to the disclosure of “documents generated as part of

a judicial proceeding.” Times Mirror, 873 F.2d at 1213 n.4.

If we conclude that there is a First Amendment right of access

to any of the documents encompassed by The Stranger’s

request, we must “then determine whether any such right is

overcome by a compelling governmental interest.” In re

Copley Press, Inc., 518 F.3d 1022, 1026 (9th Cir. 2008).

We also “consider whether the common law gives the

public a right of access separate from the First Amendment.”

Id. The public’s common law right of access is not absolute

and it does not extend to records that have “traditionally been

kept secret for important policy reasons.” Times Mirror,

UNITED STATES V. INDEX NEWSPAPERS 17

873 F.2d at 1219. In particular, our court has held that the

common law right to public records and documents does not

extend to grand jury transcripts or to sealed search warrant

materials during a pre-indictment investigation. United

States v. Bus. of Custer Battlefield Museum & Store, 658 F.3d

1188, 1192 (9th Cir. 2011).

Applying the experience and logic test to each category

of documents sought by The Stranger, we conclude there is

no First Amendment public right of access to: (1) filings and

transcripts relating to motions to quash grand jury subpoenas;

(2) the closed portions of contempt proceedings containing

discussion of matters occurring before the grand jury; or

(3) motions to hold a grand jury witness in contempt. We do

not consider whether there is a separate common law right of

access to these documents because any such presumption in

favor of access is outweighed by the compelling government

interest in maintaining grand jury secrecy.

In contrast, the public does have presumptive First

Amendment rights of access to: (1) orders holding

contemnors in contempt and requiring their confinement;

(2) transcripts and filings concerning contemnors’ continued

confinement; (3) filings related to motions to unseal contempt

files; and (4) filings in appeals from orders relating to the

sealing or unsealing of judicial records. These rights of

access are categorical and do not depend on the

circumstances of any particular case.

Although the rights of access we recognize today are

categorical, they are not unqualified. Courts must carefully

consider whether closure or sealing is nevertheless required

to prevent harm to a compelling interest, which in this context

will likely be the need to maintain the secrecy of grand jury

18 UNITED STATES V. INDEX NEWSPAPERS

information and the need to avoid compromising grand jury

investigations. This inquiry will turn on the circumstances of

each particular case, including whether the grand jury

investigation is ongoing and, if not, how much time has

passed since its completion. In this case, we conclude there

is no substantial probability that disclosing the order holding

Duran in contempt will jeopardize grand jury secrecy, and

that redacting the remaining documents will adequately

protect the government’s compelling interest in maintaining

the secrecy of the grand jury. Because we recognize a First

Amendment right of access to these documents, we do not

consider whether they are also subject to the common law

presumption in favor of access.

Finally, we hold that it is not sufficient for documents to

be declared publically available without a meaningful ability

for the public to find and access those documents. Because

the government has not offered any alternatives, we hold that

the district court must unseal its docket to allow the public to

access those transcripts and filings to which it is entitled.

We address each category of requested documents in turn.

A. The filings and transcript of the hearing related to

Duran’s motion to quash his grand jury subpoena

The Stranger argues that the public has a right of access

under the First Amendment, the common law, and Rule 6(e)

to the briefing, orders, and transcripts related to Duran’s

motion to quash his grand jury subpoena. In this instance, the

documents in the court’s file include Duran’s motion to

quash, the government’s opposition, Duran’s reply brief, the

district court’s order denying Duran’s motion, and the

transcript of the hearing on the motion to quash.

UNITED STATES V. INDEX NEWSPAPERS 19

Federal Rule of Criminal Procedure 6(e) addresses the

secrecy obligation imposed on participants in grand jury

proceedings. Rule 6(e)(5) states, “Subject to any right to an

open hearing in a contempt proceeding, the court must close

any hearing to the extent necessary to prevent disclosure of a

matter occurring before a grand jury.” As for documents

related to the grand jury, Rule 6(e)(6) provides, “Records,

orders, and subpoenas relating to grand-jury proceedings

must be kept under seal to the extent and as long as necessary

to prevent the unauthorized disclosure of a matter occurring

before a grand jury.” Rule 6(e) secrecy extends beyond grand

jury transcripts and includes summaries and discussions of

grand jury proceedings. See U.S. Indus., Inc. v. U.S. Dist.

Court, 345 F.2d 18, 20–21 (9th Cir. 1965).

Under the plain language of Rule 6(e)(5) and (6), it was

not an abuse of discretion for the district court to decline to

unseal the court’s record and file related to Duran’s motion to

quash his grand jury subpoena. The motion was filed when

the grand jury investigation was ongoing and it was

predictable that the briefs and oral argument concerning the

motion to quash would contain information about matters

occurring, or anticipated to occur, before the grand jury. At

a minimum, the briefs and argument would have confirmed

that a grand jury investigation was being conducted, that

Duran had been subpoenaed, and the reasons the government

suspected Duran had information pertinent to the crimes

being investigated. Inevitably, such disclosure would have

risked revealing where the investigation was heading, which,

in turn, might have thwarted the investigation by tipping off

its subjects or by revealing other potential witnesses. Such

disclosures could implicate the safety of potential witnesses,

reveal offers of immunity made to those witnesses, or lead to

the destruction of evidence. These considerations and others

20 UNITED STATES V. INDEX NEWSPAPERS

have been noted by the Supreme Court. See Douglas Oil,

441 U.S. at 218–19 & n.10 (secrecy justified by need to

prevent escape by those under investigation, ensure freedom

of the grand jury in its deliberations, encourage witnesses to

testify voluntarily and fully, ensure targets under

investigation do not flee or influence grand jurors, and assure

those accused, but exonerated, are not held to public ridicule).

Having concluded that the transcript and filings related to

Duran’s motion to quash fall within the scope of Rule 6(e)’s

secrecy protection, we consider whether the public

nonetheless has a right of access to those documents.5 We

apply the experience and logic test to determine whether the

public has a First Amendment right to the transcript and

filings related to Duran’s motion to quash. Determining

whether there is a public right of access requires looking at

the class of proceedings as a whole, not the particular

5

We acknowledge that federal courts generally do not reach

constitutional questions if cases can be resolved on other grounds. See,

e.g., Bus. of Custer, 658 F.3d at 1190. But the common law public right

of access analysis considers whether judicial records have “traditionally

been kept secret for important policy reasons.” Times Mirror, 873 F.2d

at 1219. As discussed in Part II.B of this opinion, in the context of

documents related to the grand jury, that analysis provides little guidance

because the tradition of secrecy is either inconsistent or nonexistent. To

further our goal of providing clarity to the district court, we begin with the

First Amendment analysis. Our court has taken this approach in other

cases involving the public’s right of access to judicial records. See

Copley, 518 F.3d at 1026; Times Mirror, 873 F.2d 1212–13. Because we

conclude the public has a First Amendment right of access to some of the

documents at issue in this case, we need not consider whether such

documents also fall within the scope of the public’s common law right of

access. We also do not decide whether the public has a common law right

of access to the requested documents to which it does not have a First

Amendment right of access because we conclude that any such right of

access is outweighed by the need for grand jury secrecy.

UNITED STATES V. INDEX NEWSPAPERS 21

proceedings at issue in this case. See Oregonian, 920 F.2d at

1465. The Stranger cites no authority supporting its implied

contention that motions to quash grand jury subpoenas have

traditionally been open to the public, nor can we find any. At

best, the advisory notes to Rule 6(e)(5) explain that courts are

not consistent when it comes to opening hearings concerning

grand jury witness immunity or granting access to orders

compelling grand jury witnesses to comply with subpoenas,

and that such “open hearings often seriously jeopardize grand

jury secrecy.”6

Logic dictates that the record of proceedings concerning

motions to quash grand jury subpoenas should be closed. As

noted, there are several compelling reasons why grand jury

proceedings should be kept secret, including protecting the

integrity of the grand jury investigation and the safety of

witnesses. See Douglas Oil, 441 U.S. at 218–19 & n.10. The

Stranger and Duran argue that these reasons do not apply in

this case, but the fact that some of these reasons are not as

compelling in the context of this particular contempt

proceeding—because Duran did not wish to remain

anonymous—is not dispositive. We do not doubt that the

contempt proceeding and subsequent period of confinement

had an enormous consequence for Duran, but he is not the

only one with an interest in maintaining the secrecy of the

grand jury. The court has an interest in the integrity of the

proceedings and the safety of those involved, the government

6

The Second Circuit inferred that hearings on a motion to quash a grand

jury subpoena may be sealed under Rule 6(e)(5). See In re Grand Jury

Subpoena, 103 F.3d 234, 238 (2d Cir. 1996) (noting that the commentary

to the rule “provides two examples of hearings which may be closed under

6(e)(5) . . . : a motion to quash a grand jury subpoena, and a motion for an

immunity order”).

22 UNITED STATES V. INDEX NEWSPAPERS

has an interest in the outcome of its investigation, and the

public has an interest in the fairness of the grand jury

investigatory process. Duran’s personal decision to disclose

what he may have learned about the grand jury investigation

does not compel disclosure or unsealing of the court’s filings

or hearing transcripts related to the grand jury. It is well

established that unsealing this type of record can have broad

implications.

Because Duran had not yet appeared before the grand jury

at the time of the hearing on his motion to quash, The

Stranger argues that Duran’s briefs pertaining to the motion,

and the government’s response, “should be unsealed because

none of these documents could possibly contain references to

grand jury secrets.” This argument is unpersuasive. From the

record available to us, the very fact that Duran had been

subpoenaed as a grand jury witness was a grand jury secret at

the time of the hearing on the motion to quash.7 Duran and

The Stranger also argue that once the contempt hearing was

opened, the district court should have retroactively unsealed

the motion to quash Duran’s grand jury subpoena. But The

Stranger and Duran do not cite any authority for this

proposition, and we do not know of any.

It is true that public disclosure of judicial records often

enhances the public’s trust in the process. See Press-

Enterprise II, 478 U.S. at 7–8. However, it is well

established that the harm caused by disclosure of certain

judicial records more than outweighs any benefit caused by

such disclosure. See id. at 9 (“[T]he proper functioning of

7

None of the articles The Stranger and Duran submitted to this court,

which discuss the fact that Duran had been subpoenaed, are dated prior to

the motion to quash hearing.

UNITED STATES V. INDEX NEWSPAPERS 23

our grand jury system depends upon the secrecy of grand jury

proceedings.”). Here, any positive role the public might play

in ensuring the fair resolution of a motion to quash a grand

jury subpoena would be “more than outweighed by the

damage to the criminal investigatory process” of the grand

jury, Times Mirror, 873 F.2d at 1215, because information

related to a grand jury investigation must be considered by a

court ruling on a motion to quash. Where the harm caused by

disclosure of judicial records outweighs the benefit of

disclosure to the public, public access no longer “plays a

significant positive role in the functioning of the particular

process in question.” Press-Enterprise II, 478 U.S. at 8. To

be sure, the closure of court proceedings is the exception

rather than the rule, but grand jury secrecy is a long-standing

and important exception that is codified in Rule 6(e) for good

reason.

Application of the experience and logic test yields the

conclusion that there is no First Amendment public right of

access to the filings and transcripts related to a motion to

quash a grand jury subpoena while the grand jury

investigation is ongoing. We do not need to decide whether

there is a common law right of access to filings and

transcripts related to a motion to quash this type of subpoena

because, even if there were, the government’s interest in

grand jury secrecy and the justifications identified in Douglas

Oil constitute “sufficiently important countervailing interests”

to overcome any common law “presumption in favor of

access.” See San Jose Mercury News, 187 F.3d at 1102. The

district court did not err by maintaining under seal the filings

24 UNITED STATES V. INDEX NEWSPAPERS

and transcript related to the hearing on Duran’s motion to

quash his grand jury subpoena.8

B. The transcripts and filings related to Duran’s

contempt proceeding held ancillary to the grand

jury’s investigation

The second category of documents The Stranger seeks

consists of the filings and transcripts related to Duran’s

contempt hearing and those related to Duran’s continued

confinement hearing.9

8

Our holding is specifically limited to the public’s right of access while

the grand jury investigation is ongoing. This is consistent with Rule

6(e)(6), “Records, orders, and subpoenas relating to grand-jury

proceedings must be kept under seal to the extent and as long as necessary

to prevent the unauthorized disclosure of a matter occurring before a grand

jury” (emphasis added). This is also consistent with Times Mirror Co. v.

United States, 873 F.2d at 1216, which found no First Amendment right

of access to “search warrant proceedings and materials while a pre-

indictment investigation is still ongoing” (emphasis added). We do not

reach whether, or when, a public right of access to the filings and

transcripts related to a motion to quash a grand jury subpoena might arise

after the conclusion of a grand jury investigation and any resulting

criminal proceedings.

9

These documents include: the motion to hold Duran in contempt; the

transcript of the contempt hearing; the order holding Duran in contempt;

the transcript of the confinement status hearing; Duran’s memorandum of

law governing termination of the order of confinement (filed prior to the

status hearing); Duran’s motion to end confinement; Duran’s declaration

in support of his motion to end confinement; the government’s opposition

to the motion to end confinement; and the district court’s order ending

confinement.

UNITED STATES V. INDEX NEWSPAPERS 25

1. The transcript of Duran’s contempt hearing

The district court’s order partially granting and partially

denying The Stranger’s motion to unseal stated, “The

Stranger, like any other member of the public, is entitled to

access the transcripts of the public portions of [the contempt]

hearings.” But The Stranger sought the transcript of the open

and closed portions of Duran’s contempt hearing to the extent

it did not contain material covered by Rule 6(e), and it asked

that the transcript be unsealed and opened to the public.

Duran also wanted an open contempt hearing, and he joined

in the request for the transcript to be made public.10

To determine whether the public has a First Amendment

right to access the transcript of the closed portion of Duran’s

contempt hearing, we apply the experience and logic test. See

Press-Enterprise II, 478 U.S. at 8. The Supreme Court has

decided two cases related to the experience prong of this test.

In 1948, the Supreme Court decided In re Oliver and ruled

that “[w]itnesses who refuse to testify before grand juries are

tried on contempt charges before judges sitting in open

court.” 333 U.S. at 265; see also id. at 277–78. This is

consistent with Rule 6(e)(5), which states that the closure of

hearings related to the grand jury is “[s]ubject to any right to

an open hearing in a contempt proceeding.” But twelve years

later, in Levine v. United States, the Supreme Court ruled that

due process was not violated by the district court’s failure to

open the courtroom for the final stage of the contempt

10

The Stranger’s motion assumed that the audio recordings of the

court’s hearings had been transcribed. To avoid confusion, we use the

word “transcript” to mean a transcript that has been created from an audio

recording or during a hearing or grand jury session. We construe “access

to a transcript” to include permission to have a hearing transcribed.

26 UNITED STATES V. INDEX NEWSPAPERS

proceedings. See 362 U.S. 610, 618–19 (1960). That said,

the Levine Court also noted that “due process demands

appropriate regard for the requirements of a public

proceeding in cases of criminal contempt,” id. at 616 (citing

Oliver, 333 U.S. 257), and that if the contemnor in that case

had requested that the courtroom be opened to the public

before the final stage of the proceedings, “[it] would have a

different case,” id. at 618. Oliver, Levine, and Rule 6(e)(5)

suggest there is no hard-and-fast tradition that contempt

hearings held ancillary to a grand jury investigation must be

public. Instead, it appears that whether these hearings have

been open to the public has been largely dependent on the

circumstances of each case.

Logic may require that a portion of a contempt hearing

transcript be accessible to the public where there has been a

request to make the hearing public, where the witness does

not object, and where the court is satisfied that opening the

hearing will not thwart the grand jury’s investigation or

jeopardize other witnesses or evidence. A grand jury

witness’s right to, and the public’s interest in, an open

contempt hearing arises in part because a civil contempt

hearing “better resembles a criminal trial . . . than it does a

grand jury proceeding.” Cf. Guerrero, 693 F.3d at 1001.

Civil contempt, like criminal contempt, may subject a witness

to confinement. See 28 U.S.C. § 1826(a). A witness is

entitled to the presence of counsel, notice, and an opportunity

to present a defense. See United States v. Alter, 482 F.2d

1016, 1022–23 & n.11 (9th Cir. 1973). Civil contempt is

designed to coerce a witness’s testimony and confinement

must end if the contemnor complies. See United States v.

Rose, 806 F.2d 931, 933 (9th Cir. 1986). But as we have

explained, the coercive force of confinement pursuant to such

an order can be extreme: a witness may be jailed for eighteen

UNITED STATES V. INDEX NEWSPAPERS 27

months. 28 U.S.C. § 1826(a). The public plays a significant

positive role in contempt proceedings by providing a watchful

eye when the court considers a prosecutor’s request that a

witness be held in contempt and confined. The advisory

committee notes to Rule 6(e)(5) acknowledge that the rule

“accommodate[s] any First Amendment right which might be

deemed applicable in that context because of the proceedings’

similarities to a criminal trial.”

But logic requires that at least part of a contempt hearing

transcript should remain inaccessible to the public. The

Supreme Court has held that there is “no right to have the

general public present while the grand jury’s questions [are]

being read,” Levine, 362 U.S. at 618, and contempt hearings

ancillary to grand jury investigations will usually require at

least some disclosure of grand jury questions to establish a

witness’s refusal to answer. A grand jury witness may refuse

to testify for “just cause” and “a court must allow [the

witness] the opportunity to present reasons for [the] refusal to

testify.” United States v. Powers, 629 F.2d 619, 626 (9th Cir.

1980). Thus, the portions of a contempt hearing in which the

government introduces evidence to support its request for a

contempt finding, and in which the witness attempts to show

just cause for refusing to testify, will likely involve some

disclosure of information traditionally cloaked by Rule 6(e).

This information may include the subject of the grand jury

investigation, future targets of the grand jury, or other

information that, if disclosed, could undermine an ongoing

investigation.

In In re Copley Press, Inc., our court indicated that access

to a hearing on a motion to seal was not an all-or-nothing

proposition. 518 F.3d at 1027–28. Copley involved a closed

plea hearing in which a man accused of running a drug cartel

28 UNITED STATES V. INDEX NEWSPAPERS

in Mexico agreed to cooperate with the government. Id. at

1024–25. A newspaper sought all of the documents related

to the government’s motion to seal, and the transcript of the

hearing on that motion. Id. at 1025. Citing safety concerns,

our court held there was a public right of access to open

portions of the hearing regarding the government’s motion to

seal but no right of access to closed portions of the same

hearing. Id. at 1027–28. The result in Copley is entirely

consistent with the general presumption in favor of public

access to court proceedings, and with the need to limit that

access when compelling interests, such as witness safety,

require secrecy. The procedure the district court employed in

this case paralleled the procedures followed in Copley.

Given the compelling need to keep matters occurring

before the grand jury secret, we conclude that there is no First

Amendment public right of access to those portions of the

transcript of Duran’s contempt hearing that contain grand jury

testimony or information regarding the grand jury

investigation, i.e., the closed portion of the hearing. See

Levine, 362 U.S. at 618. We decline to decide whether there

is a common law right of access to the transcripts of the

closed portion of the contempt hearing because, even if there

is such a right, the government’s interest in grand jury

secrecy is a “sufficiently important countervailing interest[]”

that overcomes any common law “presumption in favor of

access.” San Jose Mercury News, 187 F.3d at 1102. We

affirm the district court’s decision to keep sealed the portion

of the transcript of Duran’s contempt hearing when

substantive grand jury matters were discussed.

We also agree with the district court’s decision to open

the courtroom to the public when the court announced that

Duran was in contempt and ordered his confinement. The

UNITED STATES V. INDEX NEWSPAPERS 29

government agrees that the district court’s decision to open

the courtroom at this stage of the hearing was consistent with

Levine. The district court determined that the grand jury

investigation would not be compromised by opening this part

of the hearing, and Duran requested a public hearing. Once

the hearing was opened, the court explained the terms of the

order under which Duran was to be confined and scheduled

Duran’s next hearing date, making clear that Duran had the

ability to request an earlier hearing if he decided to testify.

The district court’s decision tacitly acknowledged that public

access to this part of the hearing provides an important check

on the court and the government; opening the courtroom

ensured that Duran was confined under circumstances that

would permit the public to have notice of his confinement.11

See Press-Enterprise Co. v. Superior Court, 464 U.S. 501,

508 (1984) (Press-Enterprise I) (“Openness thus enhances

both the basic fairness of the criminal trial and the appearance

of fairness so essential to public confidence in the system.”).

Our holding is consistent with those of at least three of

our sister circuits. See In re Grand Jury Subpoena, 97 F.3d

1090, 1094–95 (8th Cir. 1996) (affirming the district court’s

11

The Stranger argues that at least one member of the public was

excluded from the courtroom even after the district court ordered that

Duran’s contempt hearing would be opened. Duran argues that his “due

process right to public proceedings was implicated by the continued

closure of court even after the Court ordered that the closure cease.” The

Stranger and Duran base these arguments on a media report and a

declaration from K.O.’s attorney alleging that members of the public tried

to get through security to attend the contempt hearing but were denied

access. The government disputes that the public was denied access after

the courtroom was opened. We do not reach this issue because the district

court ruled that the transcript of the public portion of the hearing shall be

available to the public, and we affirm that ruling.

30 UNITED STATES V. INDEX NEWSPAPERS

decision to close a contempt hearing while grand jury

questions were read and to open the hearing for the

adjudication of contempt); In re Grand Jury Matter, 906 F.2d

78, 86–87 (3d Cir. 1990) (“[A] civil contempt proceeding . . .

may be closed to the public only to the extent that substantive

grand jury matters are being considered; the remainder of the

hearing must take place in open court.”); In re Rosahn,

671 F.2d 690, 697 (2d Cir. 1982) (“[A] contempt trial may

properly be closed to the public when substantive grand jury

matters are being considered, [but] no reason is advanced for

preventing a defendant from having the rest of his trial in

public.”). Given Duran’s consent, our decision is also

consistent with Rule 6(e)(5). See Fed. R. Crim. P. 6(e)(5)

(“Subject to any right to an open hearing in a contempt

proceeding, the court must close any hearing to the extent

necessary to prevent disclosure of a matter occurring before

a grand jury.” (emphasis added)). We decline to decide what

might occur if a grand jury witness desired the proceedings to

remain closed; that decision is best left for another case.12

12

We stress that whether the transcript of a contempt hearing ancillary

to a grand jury investigation should be available to the public is

necessarily a case-by-case determination. There may be circumstances

where the disclosure of a witness’s identity could compromise the grand

jury investigation or put other witnesses in danger. In each case, a court

must consider these risks and balance the interests of the government, the

grand jury witness, and the public. Cf. Copley, 518 F.3d at 1028

(reiterating that even when the public has a qualified right of access to a

document, that right can be overcome). The court should also consider the

timing of a motion to unseal. Such a motion could be filed before a grand

jury investigation and any subsequent prosecutions have been completed;

but it could also be filed years after the fact. Temporal proximity to the

grand jury’s work will likely have a significant impact on the court’s

analysis of the public’s right of access.

UNITED STATES V. INDEX NEWSPAPERS 31

Here, the district court intended to make the transcript of

the open portion of the contempt hearing available to the

public. The court ruled, “The Stranger, like any other

member of the public, is entitled to access the transcripts of

the public portions of [the contempt] hearings.” But it

appears that the court’s entire record of Duran’s contempt

proceeding was sealed in accordance with the Western

District of Washington local rule CrR 6(j), and there was no

publically available docket. Nor was there any public

indication that a contempt file existed. Thus, in practice, the

public had no way of accessing the transcript the court

intended to unseal. The government objects to unsealing the

district court docket, but at oral argument before our court it

could not explain how the public could access the open

portion of the contempt hearing transcript without access to

the docket. We remand for the district court to unseal the

docket, thus making the paper and electronic index of

Duran’s contempt file accessible. In doing so, the district

court shall consider any redactions the government may

request, consistent with this opinion.13

2. The filings related to Duran’s contempt

proceedings held ancillary to a grand jury

investigation

In addition to the transcript of Duran’s contempt hearing,

The Stranger requests that the filings related to Duran’s

contempt hearing be unsealed. These filings include the

13

Because we order the district court to unseal its docket, The Stranger’s

July 12, 2013 motion to unseal the district court docket is moot.

32 UNITED STATES V. INDEX NEWSPAPERS

motion to hold Duran in contempt and the order holding

Duran in contempt and ordering him confined.14

The district court ruled that the public had no right of

access to these filings because they contain grand jury

information and “neither the court nor the Government has an

obligation to sift through these grand jury proceedings to

determine what is secret and what is not.” We disagree.

Given the important interests at issue, a district court

generally does have a duty to consider what must remain

secret and what can be unsealed when a motion to unseal is

filed. See United States v. Smith, 123 F.3d 140, 143–44 (3d

Cir. 1997) (“Under such circumstances, in camera review of

the disputed material is necessary.”).

As required by our precedent, we apply the experience

and logic test to determine whether there is a First

Amendment right of access to the filings related to Duran’s

contempt hearing.15 We are aware of no controlling authority

14

Duran joins in this request. He argues that his First Amendment right

to associate is infringed because he will face “suspicion and ostracism”

from activist and social justice communities if they are not able to review

his grand jury file. Apart from a brief discussion with several conclusory

assertions, Duran provides no authority supporting this argument, and we

deem it waived. See Indep. Towers of Wash. v. Washington, 350 F.3d

925, 929–30 (9th Cir. 2003) (inadequately briefed arguments are deemed

waived).

15

The Stranger cites Associated Press v. U.S. District Court, 705 F.2d

1143 (9th Cir. 1983), and argues that because at least part of Duran’s

contempt hearing was public, the public should also have access to the

filings associated with the hearing because they are necessary to

understand the hearing. Associated Press involved the widely publicized

criminal prosecution of John DeLorean in which the district court sua

sponte ordered all filings to be sealed. Id. at 1144. Several news

UNITED STATES V. INDEX NEWSPAPERS 33

addressing whether the public has a right of access to filings

related to contempt hearings held ancillary to a grand jury

investigation. Despite our tradition of public access, grand

jury proceedings have historically been secret, as we have

explained. See Guerrero, 693 F.3d at 1001.16

A motion to hold a grand jury witness in contempt will

likely recite some information related to the grand jury as

support for the government’s request that the witness be held

in contempt. As such, public access to those types of motions

could “frustrate criminal investigations and thereby

jeopardize the integrity of the search for truth that is so

organizations petitioned the Ninth Circuit for a writ of mandamus

directing the district court to vacate its order. Id. at 1145. Our court

applied the experience and logic test to determine whether the district

court’s order in Associated Press should be vacated. See id. Contrary to

The Stranger’s suggestion, we did not use the public’s ability to

understand an open hearing as the litmus test for deciding whether the

public should have access to the filings associated with the hearing.

The Stranger also cites Newsday LLC v. County of Nassau, 730 F.3d

156 (2d Cir. 2013). In Newsday, the Second Circuit reiterated that

circuit’s rule to determine whether a judicial document is subject to the

public’s right of access under the First Amendment: “whether the

documents at issue are derived from or are a necessary corollary of the

capacity to attend the relevant proceedings.” Id. at 164 (citation and

internal quotation marks omitted). This is not the test in our circuit.

Compare id., with Associated Press, 705 F.2d at 1145.

16

One Third Circuit case discusses the public’s right of access to filings

related to contempt hearings held ancillary to a grand jury investigation.

See In re Newark Morning Ledger Co., 260 F.3d 217 (3d Cir. 2001). In

this case, the district court was “at the preliminary stage of sorting out

whether secret grand jury material was implicated,” id. at 227, and merely

sealed the record while it decided whether material protected by Rule 6(e)

was at issue, id. at 227–28. The Third Circuit affirmed. Id. at 228. The

decision we reach today is consistent with the Third Circuit’s approach.

34 UNITED STATES V. INDEX NEWSPAPERS

critical to the fair administration of justice.” Times Mirror,

873 F.2d at 1213. This is especially true while a grand jury

investigation is ongoing. Given the importance of secrecy to

a grand jury investigation, we conclude there is no First

Amendment or common law public right of access to a

motion to hold a grand jury witness in contempt while the

grand jury investigation is ongoing. We affirm the district

court’s decision to maintain the written motion to hold Duran

in contempt under seal.

We reach a different conclusion regarding the order

holding Duran in contempt and ordering him confined. Logic

dictates that at least some of the filings related to contempt

hearings ancillary to grand jury investigations may be open

to the public because of the hearings’ similarities to criminal

trials. Cf. Guerrero, 693 F.3d at 1001. As discussed, “public

access plays a significant positive role in the functioning” of

the portion of a contempt hearing when a witness is held in

contempt and ordered confined. See Press-Enterprise II,

478 U.S. at 8. It necessarily follows that the order of

contempt and confinement should be accessible, at least when

the grand jury witness does not object and the court

determines that the grand jury investigation will not be

compromised. This is so whether the order is rendered orally

or in writing. Public access to this part of the record provides

a check on the process by ensuring that the public may

discover when a witness has been held in contempt and held

in custody. We conclude the public has a presumptive First

Amendment right to the district court’s order finding Duran

in contempt and ordering him confined.

Nevertheless, this public right of access may be overcome

if: (1) the government has a compelling interest; (2) there is

a substantial probability that the interest will be harmed by

UNITED STATES V. INDEX NEWSPAPERS 35

disclosure; and (3) there are no adequate alternatives to

maintaining the filings under seal. See Copley, 518 F.3d at

1028. The government’s interest in maintaining grand jury

secrecy is compelling but there is not necessarily a substantial

probability that this interest will be harmed by the disclosure

of a contempt and confinement order. Even if there is such

a probability, redaction, as an alternative to closure, must be

considered before the public is denied access to the

information that a person was held in contempt and remanded

to custody.

Here, we have reviewed the order holding Duran in

contempt and conclude that there is no probability that

unsealing it will harm the government’s interest in

maintaining the secrecy of grand jury proceedings.

Accordingly, no redaction is necessary and this document

shall be unsealed on remand.17

17

The Stranger also requests that the filings related to Duran’s

recalcitrant witness appeal be unsealed. As an initial matter, we note that

The Stranger represented that it obtained a copy of the memorandum

disposition from Duran’s recalcitrant witness appeal on the Internet and

subsequently filed it in the unsealed mandamus action related to this case.

The government did not object to that filing or request that we seal the

mandamus case file. It does not appear that Duran or The Stranger

requested that the merits panel in Duran’s recalcitrant witness appeal

unseal the other filings in that appeal. To the extent The Stranger’s

request to unseal the filings in the recalcitrant witness appeal is not moot

because of the public availability of the memorandum disposition, The

Stranger must separately request that the file in that appeal be unsealed.

It is not appropriate to seek that disclosure in this case.

36 UNITED STATES V. INDEX NEWSPAPERS

3. The transcript and filings related to Duran’s

continued confinement

The Stranger also requests documents related to Duran’s

continued confinement. These filings include Duran’s

memorandum of law governing termination of the district

court’s order of confinement, the transcript of Duran’s

September 26, 2012 confinement status hearing, Duran’s

motion to terminate his confinement, his declaration in

support of the motion, the government’s opposition, and the

district court’s February 27, 2013 order releasing Duran.

There was no hearing on Duran’s motion to end confinement,

so there is no accompanying transcript or audio recording.

The district court allowed The Stranger to have access to

transcripts of the public portions of Duran’s contempt hearing

and confinement status hearing. But like the transcript of

Duran’s contempt hearing, the transcript of his confinement

status hearing remains hidden from public view because the

docket for Duran’s file was sealed as a matter of course. See

Local Rules, W.D. Wash. CrR 6(j). As discussed, on remand

the district court shall unseal the docket. This will allow the

public to access the open portion of the confinement status

hearing.

We interpret The Stranger’s request for access to the

transcript of Duran’s confinement status hearing to include as

much of the closed portion of that hearing as possible. We

are not aware of any federal cases addressing access to a

continued confinement hearing or to filings related to a

request for release, and the parties do not cite any. Thus, the

test for a common law right of access sheds no light on this

analysis. But as far as the First Amendment right is

UNITED STATES V. INDEX NEWSPAPERS 37

concerned, “logic alone, even without experience, may be

enough to establish the right.” Copley, 518 F.3d at 1026.

Logic favors greater public access to these transcripts and

filings because they are less likely to disclose sensitive

matters relating to the grand jury’s investigation and are more

likely to focus on the conditions of Duran’s confinement and

his willingness to testify. The grand jury investigation was

not the subject of Duran’s confinement hearing; the court was

concerned with whether continued confinement would coerce

his testimony, or whether his confinement had become

punitive. These filings were temporally distant from the

grand jury proceedings and were less likely to contain

discussions about matters occurring before the grand jury.

Further, by the time the confinement hearing was held,

Duran’s status as a grand jury witness had been publically

reported.18 We do not suggest there is a point at which a

court’s file must be presumptively unsealed. Rather, when a

motion to unseal is filed and ancillary proceedings have

become attenuated from the grand jury, the district court has

a duty to conduct an analysis to determine whether particular

types of filings should be unsealed. Here, we conclude under

the experience and logic test that the public has a presumptive

qualified right of access under the First Amendment to the

transcript and filings related to Duran’s continued

confinement.

18

Mike Carter, Man Ordered Held for Refusing to Testify on May Day

Violence, The Seattle Times (Dec. 14, 2012, 3:38 PM),

http://blogs.seattletimes.com/today/2012/12/man-ordered-held-for-

refusing-to-testify-on-may-day-violence/; Kim Murphy, Anarchists

Targeted After Seattle’s Violent May Day Protests, L.A. Times, Oct. 19,

2012, http://articles.latimes.com/2012/oct/19/nation/la-na-anarchists-

grand-jury-20121020.

38 UNITED STATES V. INDEX NEWSPAPERS

The public’s right of access may be overcome if: (1) the

government has a compelling interest; (2) there is a

substantial probability that the interest will be harmed by

disclosure; and (3) there are no adequate alternatives to

maintaining the filings under seal. See id. at 1028. Although

the government has a compelling interest in favor of grand

jury secrecy, the transcript and filings related to Duran’s

September 26, 2012 confinement status hearing and the

February 2013 filings related to his request for release are

also of considerable public importance because Duran had

been confined for approximately five months and there was

the potential for Duran to be confined for up to eighteen

months. The public also had an interest in the conditions

under which Duran was held in custody.

For this category of documents, in this case, redaction is

an adequate alternative to closure, see id., and it is preferred

given our strong tradition of open court proceedings.

Redactions shall be limited to references to the grand jury

investigation and should sweep no more broadly than

necessary to protect grand jury secrets.

Although redaction is an adequate alternative in Duran’s

case, we emphasize that, under different circumstances, it

may not be. For example, even seemingly innocuous

information can be so entangled with secrets that redaction

will not be effective. Cf. Mohamed v. Jeppesen Dataplan,

Inc., 614 F.3d 1070, 1082 (9th Cir. 2010) (en banc) (“[T]here

will be occasions when, as a practical matter, secret and

nonsecret information cannot be separated.”). Alternatively,

if the record is sufficiently voluminous, the consequences of

disclosure sufficiently grave or the risks of accidental

disclosure sufficiently great, the balance may well tip in favor

of keeping records sealed. These considerations are not

UNITED STATES V. INDEX NEWSPAPERS 39

exhaustive, but are examples of the considerations that may

be relevant when conducting the necessary case-by-case

balancing of interests.

We remand for the district court to unseal those portions

of the transcript and filings related to Duran’s confinement

status hearing and the filings related to his request for release,

subject to any redactions the government may propose and

the district court finds appropriate in light of the principles

outlined in this opinion.

C. The public’s right of access to the district court

filings related to The Stranger’s motion to unseal

Duran’s case file

The final category of documents sought by The Stranger

includes all district court filings related to The Stranger’s

motion to unseal Duran’s contempt file.19

Motions to unseal judicial proceedings and orders ruling

on those motions have historically been open to the public, at

least during recent history. See, e.g., Copley, 518 F.3d at

1025 (describing motion to unseal and order by the district

court ruling on the motion); Kamakana v. City & Cnty. of

Honolulu, 447 F.3d 1172, 1176–78 (9th Cir. 2006) (same);

Times Mirror, 873 F.2d at 1211–12 (same). Logic also

dictates that the record of these types of proceedings should

19

These documents include The Stranger’s motion to unseal Duran’s

contempt file, Duran’s declaration in support of unsealing, Duran’s

attorney’s declaration in support of unsealing, the government’s

opposition to unsealing, The Stranger’s reply, the district court’s order

granting in part and denying in part The Stranger’s motion to unseal, The

Stranger’s motion for reconsideration, and the district court’s order

denying The Stranger’s motion for reconsideration.

40 UNITED STATES V. INDEX NEWSPAPERS

be open to the public because the very issue at hand is

whether the public should be excluded or included in various

types of judicial proceedings. The public should be permitted

to observe, monitor, and participate in this type of dialogue,

or at least review it after the fact. See Copley, 518 F.3d at

1027 (“[L]ogic requires that at least part of these hearings be

open to the public, because one of their purposes is to give

the public an opportunity to be heard.”). In a similar case

involving motions to unseal proceedings held ancillary to a

grand jury investigation, the D.C. Circuit held that the district

court’s hearings on the motions to unseal, and its orders

regarding those motions, should be unsealed. See In re

Motions of Dow Jones & Co., 142 F.3d 496, 501 n.8 (D.C.

Cir. 1998) (“These motions [were] related to the grand jury

but obviously revealed nothing about its workings.”).

Application of the experience and logic test compels the

conclusion that the public has a qualified right of access

under the First Amendment to the district court record related

to The Stranger’s motion to unseal Duran’s contempt file.

All of the filings related to The Stranger’s motion to

unseal Duran’s contempt file should be open to the public

unless the public’s right of access is overcome by a

compelling government interest. See Copley, 518 F.3d at

1026; see also Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 606–07 (1982). The public’s interest in access

to judicial filings related to the motion to unseal outweighs

the government’s interest because these filings do not

jeopardize grand jury secrecy in this case. There is no

substantial probability that the government’s interest will be

harmed by disclosure of the filings related to The Stranger’s

motion to unseal. See Copley, 518 F.3d at 1028. Even if

there were, the general presumption in favor of open judicial

UNITED STATES V. INDEX NEWSPAPERS 41

proceedings requires that the district court consider

alternatives to closure, such as redaction. See id. at 1029.

Many of the filings sought by The Stranger were filed in

the publically accessible mandamus action. The government

had notice of these filings and has not moved to seal the

mandamus record since the petition for writ of mandamus

was filed, over a year ago. The government even argues to

this court that because The Stranger has access to many of the

filings it seeks to have unsealed, and The Stranger is not

subject to the secrecy obligation of Rule 6(e), this appeal is

moot. We disagree. This appeal is not moot because the

entire contempt file is effectively invisible to the public as

long as the docket is sealed, but we acknowledge that the

relief we order today is limited because most of the records

sought by The Stranger would have been available in the

mandamus action for over a year, if the public had known

where to look for them.

We remand for the district court to unseal the portion of

Duran’s contempt file containing the filings related to The

Stranger’s motion to unseal. The government shall be given

an opportunity to propose redactions before these filings are

unsealed.

D. The documents filed in this appeal

Shortly before oral argument before our panel, on January

2, 2014, The Stranger filed a motion to unseal the record in

this appeal. The government opposed the motion, but it did

not request that oral argument be closed. Oral argument was

held on February 5, 2014, and it was open to the public.

Since the argument, the government has not taken the

position that grand jury secrets were compromised in any

42 UNITED STATES V. INDEX NEWSPAPERS

way. This appeal does not concern the grand jury

investigation, the existence of which is now well known by

the public. This appeal is about the public’s right of access

to judicial proceedings and documents; fundamentally it is a

case about the public’s First Amendment and common law

rights of access, not about the May Day grand jury

investigation.

Experience and logic weigh in favor of unsealing the

appellate filings regarding The Stranger’s motion to unseal

Duran’s contempt file because the public should be given an

opportunity to engage in and follow the dialogue concerning

whether the public will be excluded from a proceeding. See

Copley, 518 F.3d at 1027; see also, e.g., Press-Enterprise II,

478 U.S. at 13 (finding qualified First Amendment right of

access to preliminary hearings in California in an unsealed

opinion); Special Grand Jury, 674 F.2d at 781 (finding

limited public right of access to ministerial records of the

grand jury in an unsealed opinion).

We see no possibility that unsealing the appellate docket,

the parties’ appellate briefs, and the motions filed in this

appeal will harm a compelling government interest. See

Copley, 518 F.3d at 1026. Nevertheless, the government

shall be permitted to file suggested redactions consistent with

this opinion by September 19, 2014. The appellate record

will not be unsealed until all issues regarding redaction are

resolved.

CONCLUSION

For the reasons discussed above, we DISMISS the

petition for writ of mandamus and rule on The Stranger’s

appeal.

UNITED STATES V. INDEX NEWSPAPERS 43

We AFFIRM the district court’s decision to maintain

under seal: (1) the transcript and filings related to Duran’s

motion to quash; (2) the portion of the transcript of Duran’s

contempt proceeding during which matters occurring before

the grand jury were discussed; and (3) the motion to hold

Duran in contempt.

We REMAND for the district court to unseal the

electronic and paper docket for the documents filed in

Duran’s contempt proceeding. The Stranger’s July 12, 2013

motion to unseal the district court docket is MOOT.

We REVERSE the district court’s decision to maintain

under seal the order holding Duran in contempt and ordering

him confined and we REMAND for the district court to

unseal that order.

We REMAND so the district court may unseal the

transcript and the filings related to Duran’s confinement

status hearing, the filings related to Duran’s request for

release, and the district court filings related to The Stranger’s

motion to unseal, subject to any redactions it may deem

necessary and that are in accord with this opinion.

The Stranger’s January 2, 2014 motion to unseal the file

in this appeal is GRANTED, subject to possible redactions.

The government may suggest redactions of the appellate

record consistent with this opinion by September 19, 2014.

If the government does request redactions, no part of the file

for this appeal shall be unsealed until the court has ruled on

the request.

44 UNITED STATES V. INDEX NEWSPAPERS

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.