In re Application for Access to Certain Sealed Video Exhibits

546 F.Supp.3d 1

IN RE: APPLICATION FOR ACCESS TO CERTAIN SEALED VIDEO EXHIBITS

Case No. 21-MC-78 (JDB)

United States District Court, District of Columbia.

Signed June 30, 2021

Charles D. Tobin, Ballard Spahr LLP, Washington, DC, for Cable News Network, Inc., American Broadcasting Companies, Inc., Associated Press, Buzzfeed, Inc., Cbs Broadcasting Inc., Dow Jones & Company, Inc., Publisher of the Wall Street Journal, Gannett Co., Inc., Gray Media Group, Inc., National Public Radio, Inc., Nbcuniversal Media, LLC, New York Times Company, Pro Publica, Inc., Tegna, Inc., WP Company LLC, E.W. Scripps Company, Los Angeles Times Communications LLC.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Chief Judge Howell has issued a district-wide Standing Order that provides a process for the media to request access to video exhibits in criminal cases that relate to the events that occurred at the U.S. Capitol on January 6, 2021.¹ Sixteen media organizations² (collectively, the "Press Coalition") have jointly filed a motion pursuant to that Order seeking to obtain certain video recordings submitted to this Court in United States v. Klein, Crim. A. No. 21-236 (D.D.C.). The government does not object. But the defendant in that case, Federico Klein, opposes petitioners’ request. For the following reasons, the Court will grant petitioners’ motion in part and deny it in part.

Background

Federico Klein faces criminal charges for his participation in the January 6 events. See United States v. Klein, 533 F. Supp. 3d 1, 4–5 (D.D.C. Apr. 12, 2021). Following his arrest, a magistrate judge ordered that Klein be detained pending trial. Id. Klein sought this Court's review of that decision on March 31, 2021. See id. at 5–6. The parties described the video evidence against Klein in their briefing, but did not submit copies of any videos to the Court. See United States v. Klein, Crim. A. No. 21-236 (D.D.C.) ("Klein Docket"), ECF Nos. 22, 25, 27. The Court held a hearing on April 9, with all parties appearing by video due to the COVID-19 pandemic. See id., Min. Entry (Apr. 9, 2021). The government presented some Metropolitan Police Department body-worn camera footage at the hearing, but was unable to play certain clips because of technical difficulties. Klein, 533 F.Supp.3d at 7 n.3. In accordance with this District's "Continuity of Operations Plan During the COVID-19 Pandemic," public access to the hearing was provided by teleconference.³ Three days later, the Court ordered that Klein be released from custody on strict conditions pending trial. See id. at 4–5.

The prosecution of individuals who participated in the January 6 events (the "Capitol Cases") has garnered significant media attention. In response to a letter from the Press Coalition, Chief Judge Howell entered Standing Order 21-28 on May 14, 2021, implementing a district-wide procedure for members of the media to file applications with the Court to access video exhibits in those Cases through a "drop box" system. The Order provides in relevant part:

Members of the media seeking access to video exhibits submitted to the Court in Capitol Cases may file an application, pursuant to D.D.C. LCrR 57.2, to the presiding judge in the case ... and the judge may seek the position of the parties. Upon grant of such media application, the government shall make the video exhibit available to any member of the media with the necessary access credentials provided by the government, unless the order otherwise limits access. Members of the media provided access to video exhibits in a particular case pursuant to such order may view those exhibits using the ‘drop box’ technical solution proposed by the [U.S. Attorney's Office of the District of Columbia]. No recording, copying, downloading, retransmitting or further broadcasting of video exhibits in a particular case is permitted, unless such permission is granted by the presiding judge, who may seek the position of the parties.

Standing Order 21-28 at 5–6.

The Press Coalition filed the instant application pursuant to Standing Order 21-28 on June 1, 2021, requesting access to "certain video recordings that have been submitted to the Court" in Klein and "permission to record, copy, download, retransmit, and otherwise further publish" those videos.^{4 ,5} Appl. for Access to Video Exs. ("Appl.") [ECF No. 1] at 1, 3. The government does not object to the application. See Gov't’s Resp. to Appl. for Access to Video Exs. ("Gov't’s Resp.") [ECF No. 3]. But Klein opposes the request, contending that the Court "has not been provided with any videos," and alternatively, that releasing more videos of him would prejudice his defense. See Def.’s Resp. to Appl. for Access to Video Exs. ("Def.’s Resp.") [ECF No. 5] at 2. The application is now ripe for consideration.⁶

Legal Standard

"The common-law right of public access to judicial records ‘is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.’ " In re Leopold, 964 F.3d at 1127 (quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017) ). "[N]ot all documents filed with courts are judicial records"; instead, "whether something is a judicial record depends on the ‘role it plays in the adjudicatory process.’ " Id. at 1128 (quoting SEC v. Am. Int'l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) ). In all cases, though, "materials filed in court [and] ‘intended to influence the court’ " qualify as judicial records. United States v. Jackson, 2021 WL 1026127, at *4 (D.D.C. Mar. 17, 2021) (Howell, C.J.) (quoting In re Leopold, 964 F.3d at 1128 ).

The finding that material is a judicial record generates a "strong presumption in favor of public access." In re Leopold, 964 F.3d at 1128 (quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980) ). But this presumption "may be outweighed by competing interests." MetLife, 865 F.3d at 665. To balance the public and private interests at stake, the district court applies a six-factor test crafted by the D.C. Circuit in United States v. Hubbard. See In re Leopold, 964 F.3d at 1131. Specifically, a court must weigh:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

Id. (quoting MetLife, 865 F.3d at 665 ).

Analysis

Standing Order 21-28 designates "a procedure for providing media access to video exhibits submitted in Capitol Cases." See In re Press & Public Access to Video Exhibits in Capitol Riot Cases, 2021 WL 1946378, at *7 (D.D.C. May 14, 2021) (Howell, C.J.,) (emphasis added). It does not displace the common law right of access and instead advises that each judge should assess what type of access is appropriate on a case-by-case basis. Id. at *5. This Court will evaluate the Press Coalition's application and Klein's objections by reference to both Standing Order 21-28 and the common law Hubbard test.

At the outset, Klein contests the scope of the Press Coalition's request. The application seeks "certain video recordings that [were] submitted to the Court" in Klein. Appl. at 1. The government characterizes this as a request for all "video exhibits admitted into evidence during the [April 9] detention hearing." Gov't’s Resp. at 1. But Klein contends that the Press Coalition seeks only those videos "referenced" by the government in its written opposition to Klein's motion for release, and by the Court in its release decision—many of which were never shown to the Court on April 9, and none of which were "admitted into evidence." Def.’s Resp. at 2.

The application is slightly confusing in this regard, but only because the Press Coalition presumes that the videos "referenced" in court filings were indeed provided to the Court, either via disc or at the April 9 hearing. To be clear, the Court has not received any copies of video evidence in Klein. The government's opposition brief discussed a substantial amount of video footage (the bulk of which is described in the Statement of Facts attached to the Criminal Complaint against Klein), but the government was not required to file copies of any of these videos with the Court because "[a]t a detention hearing, the government may present evidence by way of a proffer," United States v. Whitton, 534 F. Supp. 3d 32, 34 n.2 (D.D.C. Apr. 20, 2021) (Sullivan, J.) (citing United States v. Smith, 79 F.3d 1208, 1209–10 (D.C. Cir. 1996) ). The only non-public videos that have been presented to the Court are the clips from the April 9 hearing.⁷

In reply, the Press Coalition clarifies that, contrary to Klein's assertion, its request does encompass the videos shown to the Court on April 9. See Reply Mem. in Further Supp. of the Press Coalition's Appl. for Access to Video Exs. ("Reply") [ECF No. 4] at 2–3. Because the government played those clips at the hearing in order to influence this Court's decision, they qualify as "judicial records" subject to a strong presumption of public access. See Jackson, 2021 WL 1026127, at *4 ; see also In re Leopold, 964 F.3d at 1128. The fact that those clips were not formally admitted into evidence and are not currently in the Court's possession does not alter this analysis. Indeed, the Second Circuit has squarely held that video recordings played at a pretrial detention hearing but not entered into evidence constitute judicial records, even if those recordings remain in the government's hands. United States v. Graham, 257 F.3d 143, 152 & n. 5 (2d Cir. 2001) (quoting Smith v. United States Dist. Ct., 956 F.2d 647, 650 (7th Cir. 1992) ); see also United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) ("The common law...