United States v. Vales

1

UNITED STATES OF AMERICA, Plaintiff, v. WILLIE VALES, et al., Defendants.

No. 23-CR-14

United States District Court, E.D. Wisconsin

January 23, 2024

ORDERS AND RECOMMENDATION

WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

Willie Vales is charged with various drug and firearms related offenses. (ECF No. 28.) He seeks to suppress evidence seized from his apartment and certain statements he made following his arrest. (ECF No. 92.)

1. Vales's Motions to Seal

Before addressing the substance of his motion, the court must address the fact that Vales filed everything under seal. This included his one-page motion (ECF No. 92), his brief in support (ECF No. 93), two investigative reports (ECF Nos 93-1; 93-2), a copy of Wisconsin Act 79 (2013) (ECF No 93-3), his reply brief (ECF No. 104), and a printout from the Wisconsin Circuit Court Access Program's website (ECF No. 104-1).

The court struck Vales's initial filings because he failed to comply with Gen. L.R. 79(d), but when his resubmission was substantively identical, for the sake of expediency the court granted the motion but intended to address the matter more substantively later. Vales has now filed a motion to seal his reply brief and again failed to comply with Gen. L.R. 79(d). (ECF No. 103.)

In his initial motion to seal and his current motion to seal his reply brief Vales points to the fact that the court issued a protective order that states, “‘Copies of the discovery materials filed with the court must be filed under seal to retain the confidential nature of the materials unless consent to filing in the public record is obtained from an attorney for the government.' (Doc. 36).” (ECF No. 103 at 1.)

As to his brief, he explained that it contains “extensive reference to contents of the reports which is also governed by the protective order. It would be difficult, if not impossible, to understand the substantive arguments in the memorandum absent access to these reports. Therefore, they must, in addition to the motion and memorandum, be filed under seal.” (ECF No. 91 at 1-2.) He concedes that the copy of Act 79 that he filed did not need to be sealed. Nonetheless, he filed it under seal.

Vales's motions reflect common misunderstandings of the court's Local Rules and all parties' obligations thereunder. The court will now attempt to correct these misunderstandings for the benefit of all future litigants.

First, as a basic premise, everything that happens in federal court is presumptively public. See Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978) (“It 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.”); Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); United States v. Kalkounos, No. 06-cr-102-pp, 2018 U.S. Dist. LEXIS 27591, at *2 (E.D. Wis. Feb. 21, 2018) (noting “the strong presumption of public access in criminal proceedings”); cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982) (discussing public access to criminal proceedings); In re EyeCare Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996) (discussing right to access sealed documents related to a search warrant). “Public scrutiny over the court system serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding. Grove Fresh, 24 F.3d at 897 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). There needs to be a very good reason to keep anything from the public. The parties' agreement that the information is confidential is not a good reason. And when a good reason does exist for keeping something from the public, that restriction must be as narrow as possible. See In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992) (Easterbrook, J., chambers opinion).

Second, although it is common to refer to a document that is not available to the public through PACER as “sealed,” there is a distinction between documents that are “sealed” and those that are “restricted.” See Gen. L.R. 79(d); ECF Policies and Procedures (E.D. Wis.), I. I. 2., https://www.wied.uscourts.gov/e-filing/ecf-policies-and-procedures#Privacy.

Documents that are “sealed” are unavailable to anyone except the court. If a party files a “sealed” document, the only way the other case participants can get access to the document is if the filer manually provides it to the other parties. The other parties will not have access to it through CM/ECF or PACER. Because of this level of restriction, the “sealed” designation is generally best reserved for documents that will not have to be provided to anyone other than the court, e.g., ex parte requests for funding under the CJA or ex parte statements in support of a motion for a protective order.

Documents that are “restricted” are accessible to the court and case participants based on their CM/ECF credentials but not the public. This is the most-common designation for confidential documents filed in federal court. Attorneys must take care to use the proper designation when filing.

Third, the existence of a protective order is not by itself reason enough for the court to grant a motion to seal or restrict a document. A protective order may prohibit a party from simply publicly filing a document deemed confidential without taking any other steps, but the court's Local Rules dictate a party's obligations from there.

Fourth, a party often must file two versions of any document containing confidential information-(1) a public version that narrowly redacts only the confidential information and (2) an unredacted sealed or restricted version. See Gen. L.R. 79(d)(2) (“To the extent possible, the movant should include with the public filing a version of the document or material that redacts only those portions of the document that are subject to the restriction/sealing request.”). Thus, if a brief contains details that are truly confidential, the solution is not to file the entire brief under seal but instead to file both a public redacted version and an unredacted version that is sealed or restricted. An exception is when the confidential information is not relevant, i.e., the court does not need to know the information to address the matter before it. In that case, it may be appropriate for the party to file only a redacted version and Gen. L.R. 79(d) would not apply.

Defense counsel must identify the specific confidential information in his brief and related filings. Then he must consult with the government about whether it believes that information needs to remain confidential. See Gen. L.R. 79(d)(4). The government then must confer with defense counsel to ensure that the restrictions are as narrow as possible. See Gen. L.R. 79(d)(4). This conference must occur before the defendant files anything; it is not appropriate for the government to state that it will wait and review the defendant's filing or to blindly assert that everything is confidential. Conversely, defense counsel does not comply with his obligation if he does not give the government sufficient time to conduct a meaningful review. There must be “a good faith attempt to avoid the motion or to limit the scope of the documents or materials subject to sealing under the motion.” Gen. L.R. 79(d)(4).

If the government asserts that a portion of the brief is confidential, defense counsel must then file two versions of his brief-a redacted version that is available to the public and an unredacted version that is either sealed or restricted. Only if the government asserts that the entire document is confidential would it be appropriate for a defendant to rely on a protective order to file a document entirely under seal.

In a motion to seal or restrict defense counsel must explain why the unredacted version is being filed under seal or restricted, certify that the parties have conferred in good faith, Gen. L.R. 79(d)(4), and state the defendant's position as to whether he “supports, objects to, or takes no position on the continued sealing of the documents or materials,” Gen. L.R. 79(d)(3).

Vales has not complied with Gen. L.R. 79(d)(3) or (4) in either of his motions. Instead, as the basis for filing his materials under seal, he relies solely on the fact that a protective order is in place. He has offered no explanation as to why a public state court record (which presumably was not produced in discovery and thus is not subject to the protective order in the first place) should be sealed.

For its part, the government has not indicated whether it believes that Vales's briefs must be sealed, but it publicly filed its response (ECF No. 102) wherein it discusses much of the same information contained in Vales's motion, brief, and reply. It also publicly filed numerous supporting documents, redacting only small (and apparently irrelevant) portions of those documents. (ECF Nos. 102-1 - 102-12.) Significantly, two of the documents the government filed (ECF Nos. 102-2 and 102-9) are identical to the investigative reports that Vales filed under seal (ECF Nos. 93-1 and 932). By filing them publicly, the government obviously believes that, notwithstanding the protective order, those documents do not need to be withheld from the public.

All of these efforts by defense counsel and the court could have been avoided had defense counsel complied with the court's Local Rules and conferred with counsel for the government before filing the present motion.

Vales's motion to seal his reply (ECF No. 103) will be denied. The court will also vacate its prior order (ECF No. 96) as it relates to Vales's motion to seal (ECF No. 91). All documents associated with docket numbers 92, 93 and 104...