# Mokhiber v. Davis

> District of Columbia Court of Appeals · February 17, 1988 · 537 A.2d 1100

URL: https://www.frixlaw.com/law-library/cases/9700906

## Case

- **Full name:** Russell MOKHIBER, Appellant, v. Leonard DAVIS, Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** February 17, 1988
- **Citations:** 537 A.2d 1100; 14 Media L. Rep. (BNA) 2313; 1988 D.C. App. LEXIS 19; 1988 WL 11562
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ferren
- **Judges:** Pryor, Ferren, Steadman
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700906

## How later opinions describe it (automated extraction)

- reversing denial of an investigative reporter’s “motion to intervene in a suit settled by the original parties four years earlier . . . . -7- trying to remove protective orders that barred public access to various documents”
- noting that presumption of public access attaches to all material filed with court "germane to a court's ruling" on decisions of "major importance to the administration of justice" [internal quotation marks omitted]
- reversing denial of intervention when intervenor sought to challenge protective orders barring public access to court documents despite four year delay between settlement of underlying action and motion to intervene, and even though intervenor became aware of action one year b…
- declining to rely on the line of Supreme Court cases dealing with a First Amendment right of access to criminal proceedings because "we deal here with a question of access to court records, not to court proceedings”

## Opinion text

FERREN, Associate Judge,
concurring in part and dissenting in part:
I join in the disposition and in the opinion of the court, except in one respect. I be *1118 lieve the presumptive public right of access to pretrial records of civil judicial proceedings is premised on the first amendment, not merely on the common law. Thus, unlike my colleagues, I believe the public right of access is presumptively stronger than any competing consideration favoring secrecy. I conclude, accordingly, that presumptive access can be rebutted only by a showing that a compelling governmental interest necessitates secrecy and that the protective order sealing the pretrial records is narrowly tailored to serve that interest.
I.
I agree with the majority that, “[i]n most cases, there may be little difference between a common law and constitutional right of access.” Ante at 1108. 1 But I believe the first amendment, unlike the common law, guarantees public protection against a risk that my colleagues apparently are willing to invite: “modification” of “the right to pretrial records ... by either legislative act or court rule.” Ante at 1108. The difference between a common law and first amendment right of access, therefore, is important not only because “a common law right is more easily overcome by reasons favoring secrecy,” ante at 1108, but also because the legislature, and even the court, can amend — indeed, repeal — common law protection.
A.
In exploring the constitutional issue, I begin with the Supreme Court case, on which the majority primarily relies, concerning access to tangible evidence in a criminal trial. According to my colleagues, in Nixon v. Warner Communications, Inc., 435 U.S. 589 , 98 S.Ct. 1306 , 55 L.Ed.2d 570 (1978), “the Supreme Court recognized the presumptive right of access to court records as one based on the common law.” Ante at 1106. That statement is somewhat misleading. The Court did recognize a common law right of access to court records but did not, in addition, indicate the first amendment was inapplicable. See In re Reporters Committee for Freedom of the Press, 249 U.S.App.D.C. 119, 126 , 773 F.2d 1325, 1332 (1985) (Nixon “did not reach the First Amendment issue”). What happened in Nixon was this: The Court rejected respondents’ effort to obtain release of certain White House tapes from the federal district court where they had been admitted into evidence at the criminal trial of some of President Nixon’s former advisers. But the Court did not squarely apply the common law. Rather than “weighing the interests” for and against access under the common law, 435 U.S. at 602 , 98 S.Ct. at 1314 , the Court deferred to an administrative procedure Congress had established for screening presidential tapes and documents, with a view to making those of historical value eventually accessible to the public. In effect, the Court ruled that this procedure preempted any common law right of access which the Court might otherwise apply.
The Court in Nixon then rejected respondents’ argument that they had a first amendment right of physical access to the tapes, for purposes of copying for broadcast and sale to the public. In doing so, however, as my colleagues acknowledge, ante at 1106 n. 2, the Court stressed that the press had been “permitted to listen to the tapes and report on what was heard.” 435 U.S. at 609 , £8 S.Ct. at 1318. Indeed, reporters had been furnished “transcripts *1119 of the tapes, which they were free to comment upon and publish.” Id. Accordingly, “[t]he contents of the tapes were given wide publicity by all elements of the media. There is no question of a truncated flow of information to the public.” Id. The Court then noted that “[t]he First Amendment generally grants the press no right to information about a trial superior to that of the general public,” and added that the public “has never had physical access” to the White House tapes. Id. (Emphasis in original.) Implicit, therefore, was a ruling that the critical first amendment issue — information flow — was not an issue in the case. Had the press never had informational access to the tapes, the constitutional ruling (if not the common law analysis) might have been different. In sum, the Court’s rejection of the first amendment argument in Nixon focused essentially on a claimed right of access for commercial, not informational, purposes and does not affect a case, such as appellant Mokhiber’s, where the right of access to judicial records has been altogether stifled.
B.
In the relevant cases, the Supreme Court has extended the constitutional right of access. I believe these decisions, all in criminal cases, presage a presumptive first amendment right of public access to pretrial court records in civil cases as well.
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 100 S.Ct. 2814 , 65 L.Ed. 2d 973 (1980) (plurality opinion), Chief Justice Burger addressed an objection by the press to a state trial court order closing a criminal trial to the public at the defendant’s request, without objection by the prosecutor. The Chief Justice said that “[f]ree speech carries with it some freedom to listen” and noted, accordingly, that “ ‘[i]n a variety of contexts this Court has referred to a First Amendment right to “receive information and ideas.” ’ ” Id. at 576 , 100 S.Ct. at 2827 (quoting Kleindienst v. Mandel, 408 U.S. 753, 762 , 92 S.Ct. 2576, 2581 , 33 L.Ed.2d 683 (1972)). He then summarized:
What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing court room doors which had long been open to the public at the time the Amendment was adopted.
Richmond Newspapers, 448 U.S. at 576 , 100 S.Ct. at 2827 (emphasis added).
Two years later, in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 , 102 S.Ct. 2613 , 73 L.Ed.2d 248 (1982), the Court considered a Massachusetts statute construed to require exclusion of the press and the public from a criminal trial during the testimony of a minor victim of a sex offense. Speaking through Justice Brennan, the Court held that the statute violated the first amendment, since a “mandatory closure rule” was not narrowly tailored to serve a compelling governmental interest. Id. at 608 , 102 S.Ct. at 2621 (emphasis omitted). In reaffirming the teaching of Richmond Newspapers that the public has a first amendment right of access to criminal trials, Justice Brennan stressed, once again, that “the criminal trial historically has been open to the press and public.” Globe Newspaper, 457 U.S. at 605 , 102 S.Ct. at 2619 . He then applied a second, policy factor inherent in first amendment analysis: the right of access to criminal trials is significant to the proper “functioning of the judicial process and the government as a whole.” Id. at 606 , 102 S.Ct. at 2619 . Justice Brennan elaborated that public scrutiny “enhances the quality and safeguards the integrity of the factfinding process,” heightens “public respect for the judicial process” by fostering “an appearance of fairness,” and thereby “permits the public to participate in and serve as a check upon the judicial process — an essential component of our structure of self-government.” Id. (footnotes omitted). In sum, the first amendment protects the right of access to criminal trials because such access not only reflects historical tradition but also advances an important public purpose. See In re Washington Post Co., 807 F.2d 383, 389 (4th Cir.1986); In re Reporters Committee for Freedom of the Press, 249 U.S.App.D.C. at 125 , 773 F.2d at 1331 .
*1120 The Supreme Court continued this trend by confirming a presumptive first amendment right of access to pretrial criminal proceedings in Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 , 106 S.Ct. 2735 , 92 L.Ed.2d 1 (1986) (Press-Enterprise II) (preliminary hearing). 2 Moreover, even before Press-Enterprise II, the United States Court of Appeals for the Ninth Circuit in Associated Press v. District Court, 705 F.2d 1143 , 1145 (9th Cir.1983), relied on Nixon and Globe Newspaper in holding that the first amendment right of access also presumptively applies not only to pretrial criminal proceedings but also to documents filed in such proceedings.
Richmond Newspapers, Globe Newspaper, Press-Enterprise II, and Associated Press , of course, concerned the first amendment right of access to criminal court whereas the present case is civil. Furthermore, the three Supreme Court decisions dealt only with access to court proceedings, not to court records as in this case. I believe, however, that the historical and policy reasons for the first amendment right of access to criminal court proceedings also dictate a constitutional, not merely a common law, basis for the asserted right of access to civil proceedings, including pretrial court records — the issue to which I now turn.
II.
In holding that “the right to attend criminal trials is implicit in the guarantees of the First Amendment,” 448 U.S. at 580 , 100 S.Ct. at 2829 , Chief Justice Burger in Richmond Newspapers added a significant footnote: “Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.” Id. n. 17. In a concurring opinion, moreover, Justice Stewart stressed that the first amendment “clearly give[s] the press and the public a right of access to trials themselves, civil as well as criminal.” 448 U.S. at 599 , 100 S.Ct. at 2839 (footnote omitted). Members of the Supreme Court, therefore, have recognized in dicta that, as a matter of legal history — and perhaps of first amendment jurisprudence — the courts have been, and accordingly must be, as open for public observation of civil proceedings as for criminal cases.
A few years later, in Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984), the United States Court of Appeals for the Third Circuit applied the reasoning of Richmond Newspapers and Globe Newspaper in squarely holding that the public and the press have a first amendment righ t of access to civil trials and, thereafter, to the trial transcripts. See also Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir.1985) (applying common law right of access to trial record of civil action settled mid-trial, but incorporating “compelling governmental interest” test from Globe Newspaper into abuse of discretion standard of review).
Furthermore, as a matter of history — of common law — the public right of access has been extended to civil court records:
[A]ny attempt to maintain secrecy, as to the records of the court, would seem to be inconsistent with the common understanding of what belongs to a public court of record, to which all persons have the right of access, and to its records, according to long established usage and practice.
*1121 Ex Parte Drawbaugh, 2 App.D.C. 404, 407-08 (1894) (civil appeal of patent case). Indeed, the Supreme Court in Nixon , citing Drawbaugh among other cases, said “[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon, 435 U.S. at 597 , 98 S.Ct. at 1312 (footnote omitted).
At least two federal courts of appeal, moreover, have constitutionalized these rulings, holding that the first amendment guarantees presumptive public access to documents filed in civil litigation. Brown & Williamson Tobacco Corp. v. Federal Trade Commission, 710 F.2d 1165, 1179 (6th Cir.1983), cert. denied, 465 U.S. 1100 , 104 S.Ct. 1595 , 80 L.Ed.2d 127 (1984) (documents filed by FTC in administrative proceeding against tobacco company); In re Continental Securities Litigation, 732 F.2d 1302 , 1308 (7th Cir.1984) (report of special litigation committee prepared in connection with shareholders’ derivative action).
In extending the constitutional right of access to civil litigation, however, the courts have not always clearly distinguished between access to trials; access to pretrial records of cases awaiting trial; and post-trial access to pretrial records, 3 trial exhibits, and pretrial and trial transcripts. In In re Reporters Committee for Freedom of the Press, 249 U.S. App.D.C. at 127-32, 773 F.2d at 1333-38 , the United States Court of Appeals for the District of Columbia Circuit sharply distinguished between access to records while a case is pending and thereafter. Citing Drawbaugh, supra, among other cases, a divided panel of the court rejected the argument that the first amendment created a presumptive right of access to court records “before judgment rather than after." 249 U.S.App.D.C. at 131 , 773 F.2d at 1337 (emphasis in original). Speaking for the majority, Judge Scalia noted the absence of historical authority for pre-judgment access to records of private civil cases and thus concluded there was insufficient precedent “to justify the pronouncement of a constitutional rule preventing federal courts and the states from treating the records of private civil actions as private matters until trial or judgment.” 249 U.S.App.D.C. at 130 , 773 F.2d at 1336 . Judge Scalia also found insufficient constitutional policy grounds for pre-judgment access to civil court records. 249 U.S.App.D.C. at 130-31 , 773 F.2d at 1336-37 . Judge Wright filed a meticulous dissenting opinion to the contrary. He concluded that “a review of common law precedent suggests a presumptive right of contemporaneous access to the records of civil proceedings.” 249 U.S.App.D.C. at 145 , 773 F.2d at 1351 . He then limited his discussion of the standard applicable under the first amendment to the type of protective order at issue: an order “provision-aipy]” sealing court records until completion of the trial. 249 U.S.App.D.C. at 148-49 , 773 F.2d at 1354-55 . Judge Wright concluded that an intermediate standard for justifying secrecy — a “ ‘substantial’ government interest” — would suffice in lieu of the strict standard requiring a compelling or overriding governmental interest in most first amendment contexts. 249 U.S.App.D.C. at 149 , 773 F.2d at 1355 .
In the instant case, of course, the issue is access to pretrial court records after the judgment (based on the settlement). Thus, even the majority view in In re Reporters Committee for Freedom of the Press does not preclude a constitutional right of access in Mokhiber’s case. In addressing this issue, however, my colleagues treat the matter more broadly, concluding that the “right of access to pleadings attaches at the time documents are filed with the court,” ante at 1112. Thus, once an item is filed, this court does not make timing of the request for access — pretrial, at-trial, or post-trial — a factor in determining whether *1122 the requesting party has a presumptive right to the documents asked for.
In contrast, however, perhaps my colleagues should be understood to emphasize the timing factor in their adoption of a common law, rather than a first amendment, right of access; their heavy focus on an asserted lack of public interest in “pretrial” records is evident. Ante at 1108. On the other hand, there is no positive indication the majority would perceive a first amendment right of access if the issue were limited, as the facts here would allow, to post-judgment access to pretrial records. 4
My own view is that a presumptive first amendment right of public access to pretrial records in civil litigation attaches upon filing, pretrial, as Judge Wright has demonstrated, but that a compelling governmental interest is as necessary to justify a provisional protective order limiting access to the period after judgment as it is to justify a more far-reaching protective order barring access indefinitely, as I develop more fully below.
III.
Having summarized the caselaw development, I want to explicate more precisely the policy reasons for extending the constitutional right of access to civil litigation and, specifically, to pretrial records.
Clearly, the first amendment right of access to criminal proceedings incorporates the common law tradition; as Justice Brennan has written, the Constitution in this respect “carries the gloss of history” — “a tradition of accessibility.” Globe Newspaper, 457 U.S. at 605 , 102 S.Ct. at 2619 (quoting Richmond Newspapers, 448 U.S. at 589 , 100 S.Ct. at 2834 (Brennan, J., concurring in judgment)). Chief Justice Burger’s dicta in Richmond Newspapers reflects the same traditional access to civil proceedings. One could reasonably argue, therefore, that the first amendment has constitutionalized the common law itself and, thereby, added heightened scrutiny to protect the traditional right of access to both criminal and civil litigation. The matter is not that simple, however, for, as noted earlier, in discussing the right of access to criminal trials the Supreme Court has found first amendment protection not only because of history but also as a matter of policy — the importance of public scrutiny. The question, then, is whether the purposes underlying the presumptive right of access to criminal proceedings are sufficiently applicable to civil proceedings and court records for first amendment protection to attach.
The answer is yes; there is the same need for public scrutiny of civil litigation as for criminal. One may be less moved, initially, to defend public access to a private dispute over a commercial real estate contract, for example, than to a sensational murder trial; but, when the differences between civil and criminal proceedings are probed, the public interest in scrutiny of these two categories is not materially different. See Brown & Williamson Tobacco Corp., 710 F.2d at 1179 (“policy considerations discussed in Richmond Newspapers apply to civil as v/ell as criminal cases”). A real estate dispute may include issues of historical preservation, or of demolition of scarce low-income housing, or of significant zoning changes — all of considerable public import. Or a civil matter may reflect alleged fraud that could have criminal, not merely civil, implications. Indeed, civil cases of virtually every kind “frequently involve issues crucial to the public — for example, discrimination, voting rights, antitrust issues, government regulation, bankruptcy.” Id. I therefore cannot agree with my colleagues’ statement that “[t]he public interest in preliminary sparring between two parties protected by the adversary system is significantly different from the public interest in preliminary criminal *1123 proceedings.” Ante at 1108. 5
Nor do I believe the standard of scrutiny should be different if civil pretrial, instead of trial, proceedings are at issue. There may be reasons why a provisional pretrial or prejudgment protective order is indicated, in contrast with a post-judgment protective order; but, given the important policy reasons for public access to civil litigation, I do not see why less than a compelling governmental interest should be required to justify the protective order at any stage of the proceeding. Obviously, there may be reasons that justify a provisional, prejudgment protective order that would not remain after the case was over. Or there may be records filed pretrial, in contrast with exhibits admitted at trial, that could survive a protective order after judgment. But there is no way one can say for sure that a particular category of court records will be less usefully scrutinized than another, given the purposes justifying public access. It appears to me, therefore, that the differences in outcome — protective order or no protective order — should turn on the facts of each case, influenced by the stage of the proceeding when the document is filed {e.g., pretrial) and when access is sought {e.g., post-judgment); but I perceive no basis for saying that the standard for scrutinizing the requested access should vary with the different types of documents involved or with the different times for seeking access.
Similarly, I perceive no reason why the standard of scrutiny should differ if the question is access to civil court records in contrast with attendance at court proceedings. There is no meaningful difference between the two; indeed, “court records often provide important, sometimes the only, bases or explanations for a court’s decision.” Brown & Williamson Tobacco Corp., 710 F.2d at 1177 .
In sum, for both historical and policy reasons, the presumptive right of public access to civil trials and court records is no less protected by the first amendment than is access to criminal proceedings. Accordingly, following most of the federal courts that have addressed the issue, as mv colleagues acknowledge, ante at 1107 n. 4, I would remand for consideration of Mok-hiber’s presumptive right of access under the first amendment test: whether the sealing of the pretrial motions and oppositions (in contrast with the discovery materials as such) under the protective order “is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper, 457 U.S. at 607 , 102 S.Ct. at 2620 .
. Both the common law and the first amendment assure a strong presumption of access and permit a court to bar disclosure only when the interests favoring secrecy clearly outweigh the interests favoring disclosure. The constitutional standard, of course, adds two requirements for overcoming the presumption: the order denying access must be "necessitated by a compelling governmental interest, and ... narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 , 102 S.Ct. 2613, 2620 , 73 L.Ed.2d 248 (1982). (Interestingly, at least one court has incorporated this constitutional standard into the common law analysis. Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir.1985)). On the other hand, the requirement of a compelling state interest may make little practical difference, since the grounds on which court rules permit the entry of protective orders — avoiding “annoyance, embaiTassment, oppression, or undue burden or expense" — can, when acute, provide compelling reasons for a carefully circumscribed protective order. See Super.Ct.Civ.R. 26(c) (1987).
. In Press-Enterprise v. Superior Court, 464 U.S. 501 , 104 S.Ct. 819 , 78 L.Ed.2d 629 (1984) (Press-Enterprise I), the Court had extended the presumptive right of access under the first amendment to jury voir dire in a criminal proceeding. The Court added that, if an overriding governmental interest in preserving secrecy is found, that "interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Id. at 510 , 104 S.Ct. at 824 .
In National Broadcasting Co., Inc. v. Presser, 828 F.2d 340 (6th Cir.1987), the United States Court of Appeals For the Sixth Circuit applied Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 , 106 S.Ct. 2735 , 92 L.Ed.2d 1 (1986) (Press-Enterprise II) to confirm a qualified first amendment right of access in a criminal case to pretrial proceedings inquiring into a motion for judicial disqualification and into alleged attorney conflicts of interest.
. The only pretrial records at issue here are those filed with the court for purposes of scrutiny in connection with pretrial motions, including those for summary judgment. Unfiled discovery materials, which have not effectively been admitted for evidentiary purposes, are not within the scope of a presumptive right of access to records of civil cases. See Seattle Times v. Bhinehart, 467 U.S. 20 , 104 S.Ct. 2199 , 81 L.Ed.2d 17 (1984).
. The majority implicitly leaves open the possibility of a first amendment right of post-judgment access to trial documents and transcripts in civil cases. The distinction between pretrial and trial records becomes fuzzy when a court rules on motions for summary judgment. I would define the latter as records filed with the court and cited or obviously considered as a basis for decision.
. It is possible, of course, to have purely private disputes, but these, like all others, are not immune from the benefits of a public watchdog. In any event, it would not be feasible to identify, and apply different access rules to, civil cases that do and do not reflect a public interest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700906. Public record. Not legal advice.