The Recorder newspaper in San Francisco reports that federal district courts in California, in apparent violation of First Amendment standards and the courts’ own rules, routinely sign off on on parties’ joint requests to seal records without requesting, or making findings concerning, the justification for cutting off public access. When both parties’ lawyers stipulate to the sealing, and no one is present to represent the interests of the press or public in open access, overworked judges readily acquiesce.-PS
The Recorder
By Dan Levine
November 20, 2008
As the first defendants in the nation to plead guilty to economic espionage charges, Ming Zhong and Fei Ye admitted they stole secrets from Silicon Valley companies and sought VC funding from the Chinese government.
The fact of their cooperation with American authorities has been no secret: It appeared in an unredacted portion of their plea agreements. Still, in preparation for sentencing Friday, Santa Cruz, Calif., solo Paul Meltzer asked Northern District of California Judge James Ware to seal Ye’s entire sentencing memo. Referring in a declaration to China’s economic espionage program, “press disclosure of the details contained in the sentencing memorandum concerning the 863 Program could expose Mr. Ye to reprisals,” Meltzer wrote.
Such sealing requests are fairly common and routinely granted, allowing no one but the parties to evaluate their merit. But for a few moments on Tuesday, Ye’s sentencing memo was publicly available on the court’s electronic docket. In the memo, Meltzer says his client provided “invaluable” information to the feds.
But the document doesn’t detail China’s program, contrary to what Meltzer wrote in his declaration. Regardless, Ware granted Meltzer’s motion Wednesday, with no objection from the government. Meltzer did not respond to messages.
Observers say the scenario highlights a practice on the court in which judges approve sealing orders in order to expedite the resolution of cases — regardless of governing case law or standard.
“As a practical matter, they’re not going to second-guess the sealing unless a third party makes an objection to it,” said Thomas Burke, a First Amendment lawyer at Davis Wright Tremaine, who represents newspapers. “You can talk about the legal standard, but the practical standard is what’s driving this one.”
Chief Judge Vaughn Walker acknowledged the general practice, saying it would take an “inordinate” amount of time for judges to analyze each sealing request and all the accompanying materials.
“My feeling is, defense lawyers and the government both seal more than they need to seal,” Walker said, “but when both sides are asking you to seal the document, and it’s a question of getting on with the plea or sentencing, the natural inclination is to accede to that request.”
Northern District local rules say a sealing request should be “narrowly tailored.”
“As a public forum, the Court has a policy of providing to the public full access to papers filed,” the rules say.
Six years ago, the 9th U.S. Circuit Court of Appeals ordered the feds to turn over to newspapers documents regarding a prisoner’s cooperation in In re McClatchy Newspapers, 288 F.3d 369. Moreover, in Kamakana v. City and County of Honolulu, 447 F.3d 1172, the 9th Circuit held in 2006 that in a civil context, courts must begin their analysis with a “strong presumption of access” for the public. Such disputes are much more common in civil cases, Burke said.
Judges often trust lawyers to make factual representations about what is in the secret material. “The whole system falls apart if declarations made in a bid for secrecy is not what is actually in the documents,” Burke said.
Zhong’s attorney, John Williams of Manchester, Williams & Seibert in San Jose, also moved to seal his sentencing memo, emphasizing that Zhong could be deported. It is not possible to know if Zhong’s sentencing memo contains the details about China’s 863 program that Ye’s lacked, because Zhong’s pleading didn’t become public.
Unlike Zhong, Ye is an American citizen, so Meltzer did not use the word deportation in his motion — only nonspecific language about reprisals. The cooperation section of Ye’s 10-page memo takes up only six lines.
“Fei Ye has been debriefed three times concerning all aspects of the program and has testified before the Federal Grand Jury in another matter,” Meltzer wrote. “Counsel has been advised that no one else has previously testified concerning the 863 project, and that this information is invaluable.”
Last spring, The Recorder reported Zhong and Ye appeared to have cooperated against two other engineers, who were subsequently indicted on economic espionage charges involving China. It is also possible that Zhong and Ye provided information to American intelligence services.
Like Meltzer, Williams did not return a call Wednesday.
Clearly the government valued Zhong and Ye’s cooperation: Though Assistant U.S. Attorney Kyle Waldinger calculated their guideline sentences in excess of three years on the low end, the government recommended only 12 months in prison. Waldinger filed a public sentencing memo, along with a sealed document discussing the cooperation.
The vast majority of Ye’s sentencing memo is standard fare, describing Ye’s remorse and intimate details about the hardships for his family should he go to prison. Meltzer asked that Ye be sentenced to electronic monitoring.
Ware is scheduled to hold the hearing Friday morning at 11:30.
Copyright the Recorder 2008