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Flynt v. Lombardi

United States Court of Appeals, Eighth Circuit

March 13, 2018

Larry C. Flynt Intervenor - Appellant
v.
George A. Lombardi; Terry Russell; John Doe Defendants - Appellees Earl Ringo; John C. Middleton; Russell Bucklew; John E. Winfield; Dennis Skillicorn; Leon Taylor; Roderick Nunley; Jeffrey R. Ferguson; Richard D. Clay; Allen L. Nicklasson; Joseph Franklin; Martin Link; Mark Christeson; William L. Rousan; David Barnett; Cecil Clayton; Michael Anthony Taylor; Herbert Smulls Plaintiffs Larry C. Flynt Intervenor - Appellant Earl Ringo; John C. Middleton; Russell Bucklew; John E. Winfield; Dennis Skillicorn; Leon Taylor; Roderick Nunley; Jeffrey R. Ferguson; Richard D. Clay; Allen L. Nicklasson; Joseph Franklin; Martin Link; Mark Christeson; William L. Rousan; David Barnett; Cecil Clayton; Michael Anthony Taylor; Herbert Smulls Plaintiffs
v.
George A. Lombardi; Terry Russell; John Doe Defendants - Appellees

          Submitted: January 9, 2018

         Appeals from United States District Court for the Western District of Missouri - Jefferson City

          Before LOKEN, BEAM, and KELLY, Circuit Judges.

          BEAM, Circuit Judge.

         Intervenor Larry Flynt appeals the district court's[1] denial of his motion to unseal certain judicial records regarding death row inmates' challenges to Missouri's lethal injection protocol. We affirm.

         I. BACKGROUND

         The underlying litigation in this matter involves an omnibus Eighth Amendment challenge to Missouri's execution protocol. Ringo v. Lombardi, 677 F.3d 793 (8th Cir. 2012). During the course of that litigation, state government agencies filed documents under seal in order to be able to carry out executions. Flynt sought to intervene at some point during that litigation. In a 2015 per curiam opinion, we reversed the district court's denial of Flynt's motion to intervene and held that Federal Rule of Civil Procedure 24(b) was the proper procedural vehicle for Flynt to utilize to intervene in the case. Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015) (per curiam).

         Upon remand, Flynt intervened and requested that the district court unseal documents relating to Missouri's death penalty protocol litigation. Flynt sought information from depositions taken during the case and other documents specifically relating to the professional qualifications of two medical members of the execution team, M3 and M2. The district court denied the motion, finding that Flynt was not entitled to the documents he sought under the First Amendment, in part because our circuit has not yet recognized a First Amendment right of access in civil cases. The district court also found that Flynt would not have met the First Amendment test because the analysis was not meaningfully different from the common-law test, which Flynt did not meet either. With regard to the First Amendment test, the district court found that access can be denied if there is a compelling governmental interest, and if the denial is narrowly tailored to serve that interest. The protection of privacy rights was an example cited by the district court that would justify a denial of First Amendment access to otherwise public information. Likewise, the common-law test-essentially a balancing test between the competing request for access and the reasons for sealing-resulted in favor of the State's interest in keeping the information sealed based on a similar analysis.

         In orders entered in November and December of 2015, just prior to ruling on the original motion to unseal, the district court directed the State to file supplemental briefing on whether redaction would satisfy both the State's interests in keeping the sensitive information private and Flynt's interest in access to the documents. See IDT Corp. v. eBay, 709 F.3d 1220, 1224-25 (8th Cir. 2013) (remanding to the district court for a determination of whether redaction of confidential business information was practicable so that a part of the pleadings could be unsealed). The State received permission to file that briefing under seal for in camera review, and thus did not provide that supplemental briefing to Flynt's counsel. The State also filed an unsealed, redacted version. The district court relied upon this sealed supplemental briefing in ruling that redaction would not be an effective way of allowing the documents to become public, finding that the depositions and the licensure information could not be redacted in a way that would disclose the information Flynt sought without also revealing M3's identity.

         Several months later, apparently while preparing his appellate brief for the First Amendment/common-law case, Flynt discovered that the State had filed the supplemental brief under seal for in camera review[2] by the district court and that consequently, his counsel did not and could not review it. Flynt moved to review this supplemental briefing. The district court denied this motion as untimely and alternatively, on the merits. Flynt appeals both the original ruling regarding the sealing of the discovery and licensing documents, and the second order dealing with the sealed supplemental briefing.

         II. DISCUSSION

         We review de novo the district court's legal conclusions about the common law and First Amendment right of access to judicial records. United States v. McDougal, 103 F.3d 651, 659 (8th Cir. 1996). A court has supervisory control over its records, however, and we review the district court's ultimate decision to seal or unseal for an abuse of discretion. Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898 F.2d 1371, 1376 (8th Cir. 1990).

         A. Common Law

         Generally speaking, there is a common-law right of access to judicial records, but that right is not absolute. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98 (1978); IDT, 709 F.3d at 1222. The primary rationales for this right are the public's confidence in, and the accountability of, the judiciary. IDT, 709 F.3d at 1222. Whether the common-law presumption can be overcome is determined by balancing "the interests served by the common-law right of access . . . against the salutary interests served by maintaining confidentiality of the information sought to be sealed." Id. at 1223. In order to adjudicate the issue, a court must first decide if the documents in question are "judicial records, " and if so, must next consider whether the party seeking to prevent disclosure has overcome the common-law right of access that would otherwise apply to such records. Id. at ...


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