UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION IN RE: SEALED MATTER, ET AL., ) ) ) ) ) ) ) ) CASE NO: 2:10-MC-00022 MISCELLANEOUS Corpus Christi, Texas Thursday, June 4, 2015 (1:28 p.m. to 2:25 p.m.) STATUS CONFEENCES BEFORE THE HONORABLE NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE ALL CALENDERED CASES: See page 2 APPEARANCES: See page 2 Court Recorder: Genay Rogan Clerk: Brandy Cortez Court Security Officer: Adrian Perez Transcribed by: Exceptional Reporting Services, Inc. P.O. Box 18668 Corpus Christi, TX 78480-8668 361 949-2988 Proceedings recorded by electronic sound recording; transcript produced by transcription service. EXCEPTIONAL REPORTING SERVICES, INC 2 CALENDARED CASES 2:10-MC-0022 2:10-MC-0023 2:10-MJ-1000 2:10-MJ-1002 2:10-MJ-1005 2:10-MJ-1031 2:10-MJ-1235 2:12-MJ-0534 2:12-MJ-0670 SEALED MATTER SEALED MATTER SEALED PEN REGISTER PEN REGISTER PEN REGISTER PEN REGISTER PEN REGISTER SEALED PEN REGISTER APPLICATION FOR AN ORDER 18 USC 2703(d) APPLICATION FOR AN ORDER 18 USC 2703(d) APPLICATION FOR AN ORDER 18 USC 2703(d) APPLICATION FOR AN ORDER 18 USC 2703(d) APPLICATION FOR AN ORDER 18 USC 2703(d) SEALED SEARCH WARRANT 2:12-MJ-0671 2:12-MJ-0672 2:12-MJ-0673 2:13-MJ-0497 2:13-MJ-0523 UNDER UNDER UNDER UNDER UNDER APPEARANCES: For Plaintiff: MITCH NEUROCK, ESQ. KEN CUSICK, ESQ. HUGO MARTINEZ, ESQ. Assistant United States Attorney 800 N. Shoreline, Suite 500 Corpus Christi, Texas 78401 For Dow Jones: MARC A. FULLER, ESQ. THOMAS S. LEATHERBURY, ESQ. Vinson & Elkins 2001 Ross Ave. Dallas, Texas 75201 EXCEPTIONAL REPORTING SERVICES, INC 3 1 Corpus Christi, Texas; Thursday, June 4, 2015; 1:28 p.m. 2 (Call to order) 3 THE COURT: Good afternoon. The Court calls Cause 4 Numbers 2:10-mc-22, 23; 2:10-mj-1000, 1002, 1005, 1031, 1235; 5 2:12-mj-534, 670, 671, 672, 673; 2:13-mj-497 and 523. 6 is regarding the sealed cases. 7 announce? 8 9 MR. NEUROCK: Neurock for the United States. THE COURT: 11 MR. NEUROCK: 12 THE COURT: 13 MR. CUSICK: 14 MR. MARTINEZ: How do you say your last name? Neurock. Neurock, okay. Kenneth Cusick. Hugo Martinez, good afternoon, your Honor. 16 THE COURT: 17 MR. FULLER: 18 MR. LEATHERBURY: 19 20 If the government will Good afternoon, your Honor, Mitch 10 15 And this Good afternoon. Marc Fuller for Dow Jones. Tom Leatherbury for Dow Jones as well, your Honor. THE COURT: Okay. This matter has been pending for 21 some time so let me just get a little review; and then if you 22 all don't agree with my analysis so far in terms of where we 23 are, let me know. 24 to unseal court records was filed a year ago, June 2nd, 2014. 25 I think Judge Head was handling it. But the motion to intervene by Dow Jones and This case early on had a EXCEPTIONAL REPORTING SERVICES, INC 4 1 hearing, gave the government some time to respond. 2 responded and provided a sealed appendix with some matters 3 regarding the cases at issue here, maybe outlining where those 4 cases were. 5 matters, which was 207-mc-127, so I've not made that a part of 6 this hearing anymore. 7 kind of agreed to the continued sealing of cases that were 8 under active investigation but was skeptical of the government 9 just saying they're ongoing because of the age of the case or 10 Government There was an agreement to unseal one of the And I believe at that point, Dow Jones not was -- 11 MR. FULLER: 12 THE COURT: Well, your Honor, Dow Jones has -And not forever. I'm just -- for that -- 13 it seemed like when I read your reply, it was kind of we agree 14 right now maybe ongoing, but that doesn't mean forever, and we 15 are a little skeptical of ongoing on these old cases. 16 MR. FULLER: I think our position is that ongoing is 17 perhaps the wrong word choice in order to determine where the 18 common law right of access and the First Amendment right of 19 access applies. 20 authority for the government's argument that pre-indictment 21 investigations and the warrants and the applications and the 22 orders that are contained in the context of pre-indictment 23 investigations are not subject to the common law right of 24 access. 25 What we would say is that there is significant THE COURT: Okay. And I'll -- EXCEPTIONAL REPORTING SERVICES, INC 5 1 MR. FULLER: 2 THE COURT: Here --- give you all some time to argue. I 3 was just saying, you know, this sat around for a while and I'm 4 kind of thinking that was why, because there was, okay, they 5 agreed to unseal this one, the other ones were under, you know, 6 investigation still or -- and I knew Dow Jones was somewhat, as 7 I said, skeptical of just saying ongoing, you need to show 8 more. 9 there until the Dow Jones filed its motion for an updated But I was just trying to go through -- then it just sat 10 status, and then the government kind of came on strong, no, you 11 don't -- we're not doing an updated status. 12 do anything at all because X, Y, and Z, came on a little bit 13 stronger it seemed like. 14 MR. FULLER: Yes, your Honor. We don't need to Our position has been 15 that we believe that all of these -- based on the information 16 that we've seen, all of these materials should come out from 17 under seal. 18 different in the pre-indictment stage, but we have no reason to 19 believe that these are actually ongoing matters. 20 position that the government has taken. 21 22 Again, we think that the legal analysis is THE COURT: Right, and you all weren't given that information -- 23 MR. FULLER: 24 THE COURT: 25 That's a Yes, your Honor. -- you know, given to the Court and I know that was one of the issues. But in terms of where we are EXCEPTIONAL REPORTING SERVICES, INC 6 1 just -- 2 MR. FULLER: 3 THE COURT: Sure. -- chronology. And then so Dow Jones 4 then filed earlier this year the motion for an updated status 5 report requesting various things: 6 report regarding the status of the investigations, and then 7 making public certain versions of the status report, and the 8 sealed appendix. 9 said, basically saying no updating is necessary here because the government to update the I believe then the government responded as I 10 there is no common presumption of access or First Amendment 11 right. 12 to let you argue fully even though I'm talking a lot right now 13 -- but there -- you know, Court has jurisdiction, for the 14 record. 15 the standing issue, the government agrees that Dow Jones has 16 standing to bring the actions a member of the press to obtain 17 access to court records, that I think the objection from the 18 government was that they couldn't come -- claim standing trying 19 to vindicate the rights of the public at large; is that right? So before we get into the merits here -- and I'm going The case regards federal questions. 20 MR. NEUROCK: 21 THE COURT: And I think on That's right, your Honor, yes. Okay, so I don't think I need to address 22 that. 23 specific standing as a member of the press to obtain access to 24 Court records. 25 Standing is -- or Court holds Dow Jones has established And I'm not going to address the other issue. So then we go to the intervention and I know the EXCEPTIONAL REPORTING SERVICES, INC 7 1 government was objecting that the intervention was not proper. 2 Are you going to proceed on that argument? 3 MR. NEUROCK: 4 THE COURT: 5 I'm inclined to say yes, so I'm just letting you know where you can make your argument. 6 MR. NEUROCK: 7 THE COURT: 8 Your Honor -- Your Honor, the -Not on the merits yet, just the -- whether the intervention is appropriate. 9 MR. NEUROCK: Right, your Honor. The long and the 10 short of it is that we agree that we're all supposed to be here 11 today so that -- 12 THE COURT: 13 MR. NEUROCK: Okay. -- the point that we made, it's because 14 this is a criminal matter that intervention, the term itself, 15 is not the correct term but rather a request for access. 16 if it's termed as a request for access, Dow Jones definitely 17 has standing to request access to these documents -- 18 THE COURT: 19 MR. NEUROCK: 20 21 But Okay. -- on behalf of -- as a member of the press. THE COURT: So -- and I guess it's just kind of a 22 play on words, I guess. Maybe "intervention" is not the right 23 word, but that's what's before the Court. 24 grant -- or holds that Dow Jones can intervene for the limited 25 purpose of having its right to access the documents The Court's going to EXCEPTIONAL REPORTING SERVICES, INC 8 1 adjudicated. 2 name would have been better, but it's the same, we're here. 3 So motion to intervene is granted. Maybe another But what exactly is Dow Jones requesting? 4 Everything, who, what, statistical information, I'm not real 5 clear what the purpose of the information is. 6 MR. FULLER: Sure, your Honor. Just some background, 7 these are 13 cases that were essentially sampled by Dow Jones. 8 We don't really know -- 9 THE COURT: And you all may have told that to Judge 10 Head, it's just I'm not seeing any -- I didn't go back and 11 listen to that hearing. I just -- 12 MR. FULLER: 13 THE COURT: 14 MR. FULLER: 15 essentially a sampling exercise. 16 understanding of how the judicial process works, and 17 specifically with regard to these types of applications which 18 tend generally to blend requests under the pen register and 19 trap and trace provisions, as well as Stored Communications Act 20 provisions, Section 2703(d) orders as well as subpoenas and 21 statutory warrants under the SCA. 22 Court to unseal all documents that have been -- 23 THE COURT: 24 MR. FULLER: 25 THE COURT: Sure. -- got little blurbs from it, so -I understand. And so this was The public has a right to an Dow Jones has asked for the Everything --- sealed in --- all the information. EXCEPTIONAL REPORTING SERVICES, INC 9 1 MR. FULLER: And as we -- we do that on the basis of 2 two separate legal authorities. 3 access that was recognized by the Supreme Court in the Nixon 4 case in 1978; and then separately the First Amendment right of 5 access. 6 the relief that Dow Jones seek -- consider the common law 7 issue. 8 when he considered the public's right of access to these 9 documents and whether these types of documents ought to be One is the common law right of We think that the Court need only -- in order to grant We think that under Magistrate Judge Smith's analysis, 10 sealed forever or whether or not the sealing should only be 11 temporary in order to preserve legitimate, you know, pre- 12 indictment investigative purposes, as well as any personal 13 privacy purposes, he found that the common law right of access 14 applied and that as a result, he did not address the First 15 Amendment argument. 16 THE COURT: But I think the First Amendment argument 17 is more narrow yet stricter on the backend, on the narrowly 18 tailored. 19 balancing interest -- or when you do the balancing test on the 20 competing interests may not go, I don't know. 21 argue in Dow Jones's favor. 22 kind of different. 23 yet the government would have to meet a higher standard. 24 may not matter, but I think it's separate. 25 So just because common law, maybe it applies, the I'll let you all But I think the First Amendment is It wouldn't apply to all the documents and MR. FULLER: That's exactly -- EXCEPTIONAL REPORTING SERVICES, INC So it 10 1 THE COURT: 2 MR. FULLER: Yeah, okay. -- correct, your Honor. The common law 3 right applies more broadly but perhaps less strongly. 4 the amount of kind of overcoming evidence that needs to be 5 established by the government is -- it's a lower threshold. 6 First Amendment applies more narrowly; but then, of course, 7 where it does apply, it's essentially strict scrutiny and so 8 it's very, very difficult to get over that. 9 based on the evidence we have seen from the government -- and, 10 again, we really haven't see what they've put before the Court 11 -- there's no reason for us to believe that the government can 12 even meet its murder to overcome the common law right of 13 access. 14 are investigations and matters that are reflected as being 15 closed on PACER docket, and from the little window that we've 16 been able to obtain into what these cases and what the 17 applications and orders might involve, which is from the 2007 18 case that your Honor unsealed in the middle of last year, and 19 then also from one of the sealed orders in one of the 2012 20 cases, that despite the fact that it's sealed on the Court's 21 docket, was publically reported and is available in the 22 reports, as well as on Westlaw, these are not -- Here, though, Based on the age of these cases, the fact that these 23 THE COURT: 24 MR. FULLER: 25 And so Which one is that one? Sure. This one is -- okay, so Docket Number 2:12-mj-534 is one of the cases that's at issue and EXCEPTIONAL REPORTING SERVICES, INC 11 1 which we filed a motion to unseal. 2 Number 2 in that case is the Court's order. 3 order is separately at 890 F.Supp.2d 747, and so has -- 4 THE COURT: 5 MR. FULLER: It appears that Document And the Court's Yes. -- been publically available for years. 6 Based on that opinion and the 2007 case that was uncovered, 7 there's no sense that these are really active, ongoing 8 investigations. 9 as a result, we do not think that the government can overcome These are not pre-indictment matters; and so, 10 its burden to establish -- or to overcome the common law right 11 of access. 12 13 14 THE COURT: Okay. And government's saying it doesn't even apply at all, so you want to summarize that? MR. NEUROCK: Thank you, your Honor, yes. First of 15 all, just touching briefly on the First Amendment argument that 16 your Honor raised, we believe that there is no First Amendment 17 right of access, that it is a narrower concept than the common 18 law presumption, but that even -- based on the two tests that 19 need to be applied -- and both of them do need to be applied, 20 the experience test and the logic test, that Dow Jones can't 21 meet either of those and that the First Amendment right of 22 access doesn't come into play in this case. 23 In making that conclusion, that conclusion also takes 24 with it the docket sheet request that Dow Jones has made, that 25 the docket sheet be amended to reflect the items that are on EXCEPTIONAL REPORTING SERVICES, INC 12 1 there. That is a First Amendment concept; and if there's no 2 First Amendment right of access, there is no right to have a 3 docket to a matter to which the public has no First Amendment 4 right to know, which in this case they don't. 5 With regard to the common law presumption of access, 6 I agree with Dow Jones that it is a -- something that sweeps 7 more broadly but also is something that's more easily, for lack 8 of a better term, overcomeable by the government based on a 9 showing of countervailing interest. Our position is that there 10 are a couple of reasons why the common law presumption doesn't 11 apply. 12 abrogated the common law presumption all together, so we don't 13 address it. 14 specific statutory scheme, Congress placed the Section 2703(d) 15 process outside of the common law presumption in the sense that 16 it put it in the same class of documents that are traditionally 17 not accessible by the common law presumption, like Grand Jury 18 materials. 19 First of all, because Congress occupied the field and The second one being that by creating this And then in addition to that, in addition to what 20 we've got in our brief, we can talk about the countervailing 21 interests that we believe do favor continued secrecy for the 22 documents in this case. 23 THE COURT: Is the government still saying then 24 you're taking the position they're not judicial records? 25 well as it -- that common law was abrogated. As But you're still EXCEPTIONAL REPORTING SERVICES, INC 13 1 taking all the positions set -- 2 MR. NEUROCK: 3 THE COURT: 4 MR. NEUROCK: 5 THE COURT: 6 MR. FULLER: I still take all the positions that --- forth in your response. -- are in the brief, yes, your Honor. Okay. Your Honor, if I could respond briefly 7 to that. The background from the common law perspective that 8 was in place when Congress legislated the SCA was one that 9 recognized that search warrant applications and orders post- 10 indictment were subject to the common law presumption of 11 access. 12 the common law presumption of access. 13 argument, therefore, is an ambitious one, which is essentially 14 that Congress knowing that -- and, again, the Court has to 15 presume that Congress was aware of that common law background - 16 - intentionally abrogated it in passing the SCA. 17 look at the government's arguments as to why they draw that 18 conclusion from SCA, there is no citation to any legislative 19 history of the SCA that reflects any attempt to abrogate the 20 common law presumption of access. 21 and applications that are made under the SCA in the statute 22 don't have any provision for sealing. 23 disclosure to the target of the investigation provisions where, 24 you know, if they seek certain cell phone records, they don't 25 have to tell the subscriber about the search, and they prohibit They were judicial documents and they were subject to The government's And if you The specific types of orders There is specific non- EXCEPTIONAL REPORTING SERVICES, INC 14 1 the cell phone company from informing the subscriber of the 2 search, but there's no separate sealing provision. 3 think that if Congress intended to abrogate that common law 4 presumption of access, they would do so expressly. 5 You would Second of all, there's no way to glean from the 6 structure of the SCA any intent to abrogate the common law 7 right of access. 8 that provides various processes by which the government can 9 obtain different types of communications information. Essentially what you have here is a statute It 10 provides certain processes that are essentially subpoenas. It 11 provides some that are essentially warrants, where the 12 government has to comply with Rule 41 of Federal Rules of 13 Criminal Procedure. 14 for what's called a "D" order, the 2703(d) orders, that 15 essentially are Fourth Amendment-like processes by which the 16 government has to go in front of a detached magistrate, make a 17 factual showing that would support the standard, a lesser 18 standard than probable cause, but it still interposes a 19 judiciary between the government and the records at issue. 20 we think that that's the defining characteristic for why the 21 common law presumption of access applies here, because that is 22 what the focus is of the public's right of access. 23 transparency of the judicial process. 24 arguments about personal privacy don't apply here because we're 25 not after what the records that were produced by the cell phone And then in the middle, it has provisions And It's the All of the government's EXCEPTIONAL REPORTING SERVICES, INC 15 1 company actually showed. What we're looking for are the 2 application materials, the application and the supporting 3 affidavit, that were provided to the Court in connection with 4 the request to obtain the materials, as well as the Court's 5 order. 6 always clear as to what's all in there, that that's essentially 7 what's being sealed. 8 And we don't see any argument from the structure or from the 9 legislative history of the SCA that would abrogate the common And it's our understanding although the docket is not 10 law right of access. 11 THE COURT: And that's the subject of the request. I agree. I mean, I don't think -- I 12 think the common law -- or the Court's going to hold common law 13 presumption of access applies here. 14 holds they're judicial records. 15 question becomes the balancing test and the competing interest 16 to be analyzed or reviewed by the Court. 17 18 MR. NEUROCK: These are -- the Court And so then I think the Your Honor, if I could be heard briefly on the abrogation point. 19 THE COURT: 20 MR. NEUROCK: Yes. The privacy arguments absolutely do 21 apply, contrary to what Dow Jones is stating here. 22 the contents of the records themselves might not be something 23 that are at issue if the what the government is looking for is 24 cell site data, the fact of the investigation is something that 25 does indicate privacy interest, and that's one of the things EXCEPTIONAL REPORTING SERVICES, INC Although 16 1 that Congress is seeking to protect by the 2703(d) process. 2 And what has been done in this case is to set something aside 3 that makes it look a lot like The Right to Financial Privacy 4 Act, which if you look at the legislative history, is what this 5 act was based on. 6 process and keep it out of the public eye in order to protect 7 ongoing investigations, among other reasons, but also to 8 protect the interest of individual subscribers, not just from 9 the United States or from an investigating law enforcement It's something that's designed to take a 10 agency, but also from anyone else. 11 that Congress took into account. 12 to follow the search warrant process, it could very well have 13 done exactly that. 14 steps that need to be followed that were very different from 15 search warrants. 16 abrogation argument that by speaking in this field, Congress 17 didn't need to encamp magic words in order to engage in 18 abrogation; all it needs to do is to set out a comprehensive 19 scheme. 20 hence, the argument on our part that the common law process, to 21 the extent that it might apply to search warrants -- that's in 22 some sense an open question also -- does not apply to 2703(d) 23 actions. 24 25 Those are privacy interests And if Congress had wanted us And yet it set out a very specific set of And it's for that reason that we made the And that's what we believe it did in this case and, THE COURT: Yeah, you didn't change my mind. I don't think it was abrogated, and there is a common law right of EXCEPTIONAL REPORTING SERVICES, INC 17 1 access or that presumption. 2 holds these are judicial records. 3 guess next focuses on the competing interests. 4 proceed. 5 MR. NEUROCK: And the Court also, as I stated, I think your argument I Either one can Well, we'll start because we're trying 6 to keep the documents sealed. The -- and it's a little unusual 7 the posture that we're in here because I'm not the movant, and 8 yet we're the ones seeking to keep the documents sealed. 9 going first in this case, we do believe that the most important 10 aspect, the most important countervailing interest, is that the 11 criminal investigations in each of these matters are still 12 ongoing. 13 appendices. 14 considered by a court. 15 Grand Jury proceedings, and the Court in the Applebaum 16 (phonetic) case, the Fourth Circuit case that we cited, says 17 that perhaps 2703(d) cases are even more sacrosanct than Grand 18 Jury proceedings. 19 integrity of these investigations for a variety of reasons, and 20 those reasons can change from case to case. 21 it's to protect the safety of victims or witnesses or those who 22 were just otherwise innocent, to preserve evidence, to prevent 23 individuals from changing their behavior in order to alter the 24 course of an investigation or thwart an investigation. 25 each of these things can serve as a countervailing interest. So We've discussed that in more detail in the sealed This is the strongest factor that's to be These proceedings are very much akin to It's very, very important to keep intact the In some situations EXCEPTIONAL REPORTING SERVICES, INC And 18 1 Plus, the subject matter -- and this is something that's 2 discussed in the brief -- the subject matter of these 3 investigations is something that's traditionally considered 4 private, and that's people's communications. 5 the integrity of the investigations themselves, the subject 6 matter is something that has been traditionally considered 7 private. 8 countervailing factor against a presumption of access, is there 9 is no presumption of access when the subject matter to which So in addition to That's one of the factors that has been weighed as a 10 the access would be granted is something that's traditionally 11 considered private, and that's people's communications, just as 12 The Right to Financial Privacy Act did, and just as Congress 13 did with the SCA. 14 We've set out some additional discussion of this in 15 our brief, but I have just a couple of other countervailing 16 factors that I want to raise with the Court. 17 the effect on law enforcement's legitimate interest in general, 18 potential effective disclosure of law enforcement's interests 19 in a broader sense. 20 we rely on cooperation by individuals very extensively. 21 people in virtually every case want or they need 22 confidentiality, whether it's for their own economic purposes 23 or their reputational interest and, in some cases, their 24 personal safety. 25 become public, we're concerned that it could chill the One of them is We rely -- as we discussed in the brief, Those Just knowing that this type of material might EXCEPTIONAL REPORTING SERVICES, INC 19 1 cooperation of these individuals and hamper law enforcement 2 interests that way. 3 There are, in addition to that, privacy and 4 reputational interests to be considered by the subjects of 5 these orders or people who are named in the applications. 6 These could include witnesses, they could be victims, just 7 anyone who has a legitimate interest. 8 are a lot of people who have a legitimate interest in not be 9 associated with criminal cases in which they themselves are not 10 And I suggest that there charged. 11 And, finally, a couple of others. We have the 12 protection of law enforcement's tactical decision-making 13 processes. 14 should be granted. 15 situations but not others; what is -- or at what point in an 16 investigation we decide to seek a 2703(d) order. 17 That is a factor that should bear on whether access Why we have to seek 2703(d) orders in some And finally the individuals who are the subject of 18 these orders are covered by the Stored Communications Act. And 19 one of the reasons for the existence of this act is to protect 20 their privacy interests. 21 confidence in the court system. 22 damaging to the public's confidence in the court system if the 23 government and the courts, as officers of the court, that we 24 don't take appropriate steps to safeguard the private 25 information of those people who are the owners and subjects of And it interplays with the public's It could potentially be EXCEPTIONAL REPORTING SERVICES, INC 20 1 that information. So those are just several of the 2 countervailing interests. 3 greater detail in writing. 4 THE COURT: 5 MR. FULLER: And, again, we've discussed that in All right. Thank you, your Honor. Listening to Mr. 6 Neurock, I think there are kind of two different categories 7 that these interests can come into, one of which I think we 8 probably have some agreement as to. 9 which I think we disagree as to. 10 And then the other one I think there is a category of interest that are just 11 in general conceptual interests. 12 sure law enforcement functions well, we need to protect 13 individual privacy. 14 are really arguments about abrogation. 15 determines that the SCA did not abrogate the common law 16 presumption of access, then these generalized arguments about 17 well, this is really like a Grand Jury process or, you know, we 18 can't allow the public to be privy to, you know, what the 19 judicial system is doing with regard to these applications and 20 orders, that all falls away. 21 You know, we need to make At a certain level of generality, those And once the Court And so you move to a much more specific analysis 22 where I think we probably have some agreement. 23 that there's calls -- there's call information in here in these 24 materials, to the extent that there are individual names in 25 here, to the extent that there's any kind of information to EXCEPTIONAL REPORTING SERVICES, INC To the extent 21 1 which individuals have legitimate expectation of privacy that 2 needs to be protected on an ongoing basis, then Dow Jones 3 agrees that redactions should be made. 4 whenever you unsealed the 2007 case, said we need to make sure 5 we make the redactions that are required by this Court's 6 standing order, as well as any others. 7 materials were unsealed, names are in there, significant 8 descriptions of the processes of the investigation, the bases 9 for the applications, the content of the Court's order, all of In fact, your Honor, And when those 10 that is in there. 11 not put forward any evidence that that being available for the 12 last several months has hampered any law enforcement 13 investigation. 14 inquiry here is given that there's a presumption of access 15 under the common law, what limited redactions need to be made? 16 And I think that that's something that, you know, the 17 government could have done long ago. 18 to be given a chance to make those redactions, I hope that they 19 do so quickly because these are documents that under the case 20 law that has been issued on 2703(d), as well as the analogous 21 case law in the search warrant context, it takes a lot to 22 overcome the presumption of access. 23 actually is overcome, it's specific information. 24 we have no basis to believe that that's what's going on here. 25 And, you know, the government is certainly So I think that the only real, legitimate THE COURT: All right. I think if they're going And the times when it And, again, Talking about redactions, I EXCEPTIONAL REPORTING SERVICES, INC 22 1 mean, at some point -- and, I don't know, you're right, maybe 2 that's something we need to visit about further as to what all 3 -- if we were to go there, what all needs to be redacted; 4 because at some point, then you kind of do away with, okay, 5 we're producing these documents but we're redacting a lot, you 6 know. 7 MR. FULLER: Well, your Honor, if I may, again, we -- 8 it's sealed and we were not privy to the -- you know, the in- 9 camera submission that the government made with regard to the 10 status of the investigations and, you know, what might be, you 11 know, worthy of redaction in this -- these circumstances. 12 again, from what we've seen, the information that was unsealed 13 in the 2007 proceeding, from the order that, although it's 14 sealed, is publically available in the 2012 case, you know, 15 this is not a class of materials that's going to require 16 extensive redaction. 17 minimal as they have been in the 2007 case. 18 we have cases here that are from 2010 where the docket shows 19 that there was an application that day or the next day, there 20 was an order, and then a few weeks later the proceeding was 21 closed. 22 folded into a criminal proceeding that closed years ago. 23 we're not talking about applications and orders that are 30, 24 60, 90-days old. 25 that the government faces, you know, a lot of healthy But, I think the redactions would be extremely Again, you know, Sometimes on PACER it looks like that proceeding was These are five years old. So And so I think EXCEPTIONAL REPORTING SERVICES, INC 23 1 skepticism in asserting that this is really so sensitive that 2 we can't let the public see what's going on. 3 THE COURT: I agree, and I'm just going to give a 4 little anecdotal thing here. You know, I came from state -- I 5 was a state court judge forever when I first got here -- well, 6 not forever but, you know, for about ten years. 7 here and I see these long-term investigations, you know, and 8 I'd hear these cases, I'm like, but it really -- the feds kind 9 of do take a long time sometimes. So when I got I'm not saying it's always 10 appropriate or right or that it -- I'm not necessarily speaking 11 about the cases here. 12 -- the feds take a long time. 13 decide to do it, you know, it's a lot more solid than what I -- 14 we used to see in state court on shorter timeframes. 15 MR. NEUROCK: I'm just saying sometimes they do take a And sometimes when they do Well, and a lot of these cases are very 16 complicated cases that have many different aspects to them. 17 One thing that I want to stress to the Court is that, although 18 you may have a 2703(d) case that may be opened and closed 19 administratively in its own sense in a very short period of 20 time, that doesn't mean that the investigation itself that it's 21 a part of has progressed to any particular point, whether it's 22 an indictment or what. 23 that may be joined by other corners of investigations. 24 you've seen in some of the sealed appendices, there are a 25 number of cases that could potentially be grouped into single This is one corner of an investigation EXCEPTIONAL REPORTING SERVICES, INC And as 24 1 investigations. But the point that I want to try to make, your 2 Honor, is that one of the reasons that there's so much that's 3 visible in that 2007 order -- in fact, I'm kind of glad Dow 4 Jones chose that as one of the cases they wanted to litigate -- 5 there -- she notes that there are no redactions in there and 6 that's because the case is completely over. 7 closed and there are no interests left that were not already 8 made a matter of public record during the course of the 9 criminal case that ensued from it. It's completely Every one of these other 10 cases is something that is ongoing to a various stage of 11 degree. 12 separate, these remaining cases could all be part of the same 13 investigation. 14 There could be multiple 2703(d) orders that come from the same 15 criminal investigation. 16 appendices but -- and I won't go into it any farther, other 17 than to say that all of those cases are still ongoing. 18 that's the most important consideration for the Court to 19 remember, is that if a case is completely ongoing, it's very 20 important to us to keep those documents completely closed off 21 until we have the opportunity to get all the way through the 22 investigation and take care of all those countervailing 23 interests such as reputational interests and safety interests 24 of witnesses and victims and allow the law enforcement 25 investigative people the freedom to pursue the investigation as For all Dow Jones knows, with all these things being And 2703(d) orders lend themselves to that. Now, your Honor, has seen the sealed EXCEPTIONAL REPORTING SERVICES, INC And 25 1 they see fit, without having to look over their shoulder to 2 engage -- to have public scrutiny over the choices of 3 investigative tactics that they've made under seal with the 4 Court in order to get these orders under 2703(d). 5 it's a perfectly legitimate interest on the part of law 6 enforcement to want to have these things under seal while a 7 criminal investigation is ongoing. 8 changes things a little bit in our mind. 9 with the 2007 order, there can be situations where documents 10 can be released completely without redaction; or, in certain 11 situations, if the facts call for it, then appropriate 12 redactions to protect personally identifiable information or 13 victim names or other things that are sensitive that we believe 14 shouldn't come out at that point. 15 range of activities that law enforcement is engaged in. 16 though a 2703(d) order itself, that particular action might be 17 closed, that says nothing about the course of a criminal action 18 which, as your Honor said, can often take a considerably longer 19 period of time, even years before we get to a resolution. 20 MR. FULLER: We think When it's over, that And just as we saw But there is a very wide Even And, your Honor, just one small point. 21 I think at the level of, you know, conceptual analysis, there's 22 probably a lot of agreement here. 23 going to be in the details. 24 you know, these 2010 cases, you know, we -- this is a sampling 25 and it looks like it was a very unlucky sampling. And I think the devil is And I think that with regard to, EXCEPTIONAL REPORTING SERVICES, INC We -- every 26 1 case that we picked happens to involve an ongoing investigation 2 and so that, you know, rises our levels of skepticism about 3 what ongoing investigation means. 4 these individuals or to a very, you know, small circle of 5 individuals that are related to them? 6 investigation being used so broadly that we're talking about, 7 you know, Mexican drug cartels or the drug war in general? 8 so that's the concern that we have, but I think it's a concern 9 that can be addressed through proposed redactions and, if You know, is it specific to Or is ongoing And 10 necessary, you know, additional motions for access to material 11 that has been redacted that doesn't appear to be properly 12 redacted. 13 public and the press, I don't think there's so much interest 14 in, you know, has Joe Smith been convicted now and is he the 15 only one in the investigation, but more general interest. 16 know, did the U. S. Attorneys that are, you know, filing these 17 orders, are they understanding the technologies? 18 technologies are they using? 19 every case or are there denials? 20 transparency that is at issue, and I think that -- 21 And I would say I think from the purpose of the THE COURT: You What types of Is the Court granting them in And I think it's process But process, kind of like analysis or 22 stats, can probably be done with different information. Or you 23 could be -- you know, there's all these stats the federal 24 courts do and the AO does or -- that's kind of I guess up front 25 I was asking, what exactly do you want? What is it, you know? EXCEPTIONAL REPORTING SERVICES, INC 27 1 MR. FULLER: Right. And I think that stats certainly 2 help. But, you know, in the 2007 case and in this 2012 3 opinion, we get a sense that, you know, there might be certain 4 aspects of this technology that the government doesn’t fully 5 understand. 6 story here about magistrate judges and their role in this type 7 of process that is used over and over again. 8 the public has a clear interest in having some level of 9 transparency. And, I mean, I think that there is a real back- And I think that And I think that there could be considerable 10 transparency into the process that does not jeopardize the 11 legitimate, ongoing investigative interest and the personal 12 privacy interest that the government is concerned about. 13 again, I think, you know, as a matter of, you know, conceptual 14 analysis, we may be on the same page. 15 most logically is to go through the redactions and kind of see 16 what type of redactions the government would propose and 17 whether or not those redactions would also allow the type of 18 transparency that we believe is required under the common law. 19 MR. NEUROCK: So, I think the next step I have to disagree that the next 20 logical step is redactions because I think the next logical 21 step is -- 22 THE COURT: 23 MR. NEUROCK: Balancing. -- to keep the documents sealed, 24 especially if it's with regard to an ongoing criminal 25 investigation, so that there would be no redactions necessary. EXCEPTIONAL REPORTING SERVICES, INC 28 1 One of the things we put into our brief is something 2 that deals with a possible way forward. 3 just this court, but other courts in this district -- are 4 confronted with motions like this by Dow Jones with its 5 sampling and talking about unlucky sampling, all of them also 6 happen to be before the same magistrate judge in this division. 7 But the -- and we take -- we definitely disagree with the idea 8 that we don't know enough about the technology to make 9 appropriate arguments and seek 2703(d) -- 10 THE COURT: 11 MR. NEUROCK: When the courts -- not Well, that's a case-by-case basis. -- but I understand. But in the brief, 12 we do talk about possible ways forward for the Court to analyze 13 this, and I think that's probably the better next step for the 14 Court to engage in. 15 brief is to look at the status of the investigation. 16 it's something that's ongoing, the Court should find that 17 protecting the integrity of that investigation is going to 18 outweigh any interest in public access. 19 outweigh, not a heavily outweigh standard, as we put -- as we 20 mentioned in the brief. 21 matter really -- of access ought to end there. 22 ongoing, that's where the Court's analysis really kicks in, 23 though. 24 ongoing, does any other factor outweigh the interest in public 25 access? And the first step as we stated in our And if And it is just an And if the matter is ongoing, the If it's not Does any other factor other than whether the matter is And if the factors counseling secrecy don't outweigh EXCEPTIONAL REPORTING SERVICES, INC 29 1 that presumption, the Court would properly then grant access to 2 those materials. 3 opportunity to take appropriate redactions, and that would be 4 tailored to each case. 5 particular system like certain things are redacted in every 6 situation. 7 or lesser number and type of things that would need to be 8 redacted in order to facilitate the protection of legitimate 9 privacy interests, to protect the innocent, to safeguard our But, again, we definitely would seek the This is not something that admits a There may be a greater or lesser extent, a greater 10 legitimate interest in the secrecy of our techniques. 11 after taking that into account, if the Court decides to grant 12 access, it should still keep in mind the important privacy 13 interests of deciding whether or not access is appropriate. 14 our belief is that the status of a criminal matter as being 15 ongoing as we've written is what carries primary importance. 16 And if the matters are ongoing, we shouldn't get to redactions. 17 And in that matter where it was not ongoing, something where we 18 determined where it was completely closed, we thought that that 19 was something that was appropriate to take up. 20 view this as something where we're looking for untrammeled 21 government secrecy here. 22 reasonable approach and agree that the document in that 2007 23 case was appropriately made public. 24 25 THE COURT: And then And we don't We've taken what we think is a So -- and I know in this district -- maybe I guess different judges, different magistrates have EXCEPTIONAL REPORTING SERVICES, INC So 30 1 handled it differently -- historically here there has never 2 been an end to the ceiling. 3 looked at to see what may be some rules can be adopted that can 4 kind of affect everyone. 5 on that? MR. NEUROCK: Well, our position all along has been that there is no presumption of access and so it's never -- 8 THE COURT: 9 MR. NEUROCK: 10 But what is the government's position I mean do you -- on that issue? 6 7 And I know there -- that has been Okay, well --- disturbed us that there has been a continued ceiling. 11 THE COURT: 12 MR. NEUROCK: -- we're going to move beyond that. So if we move beyond that, then our 13 thought is that at such point as the underlying criminal 14 investigation is closed, that would be the first appropriate 15 time to consider whether or not (indiscernible) -- 16 17 THE COURT: regard right now. 18 MR. NEUROCK: 19 THE COURT: 20 21 But you all aren't doing anything in that Well, there's -And I'm talking beyond what's here before the Court. MR. NEUROCK: Beyond what's here before the Court, 22 that's correct, your Honor. I mean, we do have a magistrate 23 judge in another division of this district who has specific 24 time limits that he imposes for orders such as these, but 25 that's not a district wide process and it's not something we're EXCEPTIONAL REPORTING SERVICES, INC 31 1 suggesting be a district wide process. 2 see is a situation where documents will either remain sealed; 3 or if there's a request that there be access to those 4 documents, that appropriate redactions be made, but only if 5 there is a concluded criminal investigation at that point, and 6 not until. 7 8 THE COURT: What we would prefer to All right, anything else on the common law balancing of interests? 9 MR. NEUROCK: 10 MR. FULLER: 11 THE COURT: No, your Honor. No, your Honor. Okay. After reviewing the briefing, the 12 documents submitted to the Court, the case is fully before the 13 Court. 14 preserving the records under seal outweigh the interest served 15 by public access, at least regarding these cases that are 16 before the Court. 17 specific findings, the particular interest of the government 18 considered by the Court are that the open investigations can be 19 jeopardized by the disclosure of the information, and there are 20 danger or safety issues to individuals involved in and 21 particularly, or specifically, regarding the information that 22 was provided to the Court under seal regarding these cases or 23 these matters. 24 of the investigation, whether the targets have been indicted or 25 prosecuted, the specifics of the information, the reliability The Court concludes that the government's interest in And the Court is, you know, to make some The Court has specifically considered the state EXCEPTIONAL REPORTING SERVICES, INC 32 1 of the information presented to support maintaining the matter 2 sealed, as I've already said, protecting the safety of crime 3 victims, as well as witnesses, from intimidation, harassment, 4 or threats to their safety, as well as informants, protecting 5 their identity and their safety or protecting them from 6 retaliation or threats, and preventing suspected perpetrators 7 from interfering with the investigations or fleeing the 8 jurisdiction. 9 earlier, but the effect that access to these records now or in I think this was mentioned by the government 10 the future can have on the ability of law enforcement to obtain 11 cooperation of other witnesses or other individuals. 12 a big one, too, is -- this is speaking more -- well, not 13 necessarily. 14 and also I think this was alluded to by the government, which 15 the Court's also considering the relationship of an 16 investigation before the Court that may have on other 17 investigations that are pending. 18 privacy rights and expectations of people who end up not being 19 charged or indicted. 20 relation to what was given to the Court regarding these cases, 21 the Court has considered that in deciding that the Court is not 22 going to grant access to the records under the common law 23 presumption; although the Court has found that it applies, it 24 was not abrogated. 25 favors the government here. Let me think. And then Well, I'll skip that one. But -- And then, of course, the So the Court's considering that in But the Court finds the balancing test EXCEPTIONAL REPORTING SERVICES, INC 33 1 So shall we move to the First Amendment argument? 2 Now, that being said, I do think in terms of the updating of 3 the report, the Court is going to grant that. 4 government needs to provide the Court an update regarding 5 what's going on now. 6 ten days, 14 days, whatever that may be, and then probably six 7 -- every six months because I think that's a changing 8 circumstance, a changing matter, regarding what's going on with 9 those cases. And I'm inclined -- you know, if you need 10 MR. NEUROCK: 11 THE COURT: 12 (No audible response) 13 THE COURT: 14 15 Amendment issue? I think the Yes, your Honor. I don't know, any comments on that? Okay, if you all want to argue the First Or not. MR. FULLER: Your Honor, obviously the second legal 16 basis that we think requires the unsealing of these records is 17 the First Amendment. 18 narrower test but, on the backend, a more stringent burden that 19 is placed on the government. 20 this issue, and the cases that have addressed this issue 21 directly, and most notably the Fourth Circuit case in 22 Applebaum, involved an ongoing investigation. 23 Section 2703(d) orders that were recently issued. 24 have seen in the search warrant context, that is an entirely 25 different set of legal concerns than the post-indictment As your Honor has recognized, it is a There's very little case law on EXCEPTIONAL REPORTING SERVICES, INC They involved And as we 34 1 context. 2 With regard to the experience prong of the First 3 Amendment test, I think that if you look at these types of 4 records, not from the position of what substantive areas do 5 they involve, but what are they, and you look at things like 6 orders, judicial orders, on allegations (phonetic) under the 7 Stored Communications Act or under the pen register and trap 8 trace provisions, then those judicial orders are clearly the 9 types of documents that have been available to the public and, 10 of course, the logic behind that openness is clear. 11 preserve public transparency in the judicial process. 12 think that because the judicial orders are these top drawer 13 documents, as Magistrate Judge Smith referred to them, that in 14 order for the public to fully understand them, it also requires 15 access to the applications themselves. 16 our argument on the First Amendment -- 17 18 19 THE COURT: It's to And we And so that would be So going more on the logic than the experience, I guess, or -MR. FULLER: Well, I think that I would pitch the 20 experience argument at the level of, you know, what are these 21 documents specifically? 22 applications as opposed to did they originate -- 23 THE COURT: 24 MR. FULLER: 25 Are they judicial orders, are they Okay, now you're going general, right? -- under the Stored Communications Act. And judicial orders have a history of openness and so, EXCEPTIONAL REPORTING SERVICES, INC 35 1 therefore, you do move to the logic prong, and we think the 2 case is compelling -- 3 THE COURT: 4 MR. FULLER: 5 THE COURT: Okay. -- on that prong. Okay, but these are not really general 6 orders. 7 experience side of it for Dow Jones but, anyway, I'll let the 8 government argue. 9 So I think there's a -- probably an issue on the MR. NEUROCK: Your Honor, I agree that there is 10 definitely an issue on the experience test, but also the logic 11 test. 12 one or the other, it is both. 13 citation for you, the Fifth Circuit decision in Sullo And 14 Bobbitt (phonetic), that touches on that. 15 at is not so much is this a judicial order, but has the place 16 and the process with regard to the experience test typically or 17 historically been open to the press and the public, and the 18 answer to that is just simply no, it hasn't. 19 history of openness in Section 2703(d) proceedings. 20 recent creature of statute and we -- in deciding whether or not 21 there is a tradition or history of openness, we looked to 22 nationwide practice, and there is no other jurisdiction that 23 we've been able to find, and Dow Jones hasn't pointed us to 24 any, that provides openness in this process. 25 real history of openness in The Right to Financial Privacy Act And they are required to meet both tests. It's not a And we cited in our supplemental What we're looking There is no This is a And there is no EXCEPTIONAL REPORTING SERVICES, INC 36 1 either, which is what the Stored Communications Act is based 2 on, so I think that's something that the Court can permissibly 3 look to in deciding whether or not we meet the experience test. 4 These things are -- these requests -- 2703(d) requests are done 5 ex parte, they're done under seal, and they're looked at by the 6 Court in-camera. 7 been open to the press. 8 the experience test I think Dow Jones is not able to meet, nor 9 can they meet the logic test which asks whether public access This is not something that's historically It's historically been closed. And so 10 plays a significant, positive role in the function of this 11 particular process; not the process of whether or not Section 12 2703(d) orders are effective or whether they're useful in 13 obtaining successful conclusions of law enforcement 14 investigations, but the particularly process of deciding 15 whether or not to grant them and the orders that follow, public 16 access doesn't really play any role at all in that. 17 things, as I mentioned, are done ex parte, they're done in- 18 camera, they're done without public participation, so there's 19 not a significant role. 20 even if there is one because the whole idea of these 21 applications is that they be done during the course of an 22 ongoing criminal investigation. 23 utmost importance. 24 norm. 25 having these orders made available to law enforcement in order These And it wouldn't be a positive role And so secrecy is of the Privacy and secrecy in this sense are the And openness would completely frustrate the purpose of EXCEPTIONAL REPORTING SERVICES, INC 37 1 2 to conduct those investigations. Those things that we viewed as countervailing 3 interests with regard to the common law presumption we believe 4 are also compelling interests with regard to the First 5 Amendment right of access. 6 criminal investigation we believe is a compelling interest that 7 not only would justify defeating a First Amendment right of 8 access, but also I think goes to the application of the logic 9 test itself. And so the importance of an ongoing The importance and sensitivity of an ongoing 10 criminal investigation is of such paramount import that it is - 11 - I think would defeat the purpose of that investigation if 12 public access were to play a role in the process of applying 13 for and issuing one of these orders. 14 -- what Dow Jones has said is that judicial orders are -- it's 15 good that judicial orders are generally available. 16 certainly true. 17 benefits every governmental process. 18 this case, in order to satisfy the logic test, Dow Jones needs 19 to show that public access plays a significant, positive role 20 in this particular process. 21 test, and so we believe that the logic test just isn't 22 satisfied here. It's not enough to argue And that's But it's not enough to say that openness just 23 THE COURT: 24 MR. FULLER: 25 THE COURT: What we need to show in And they just can't meet that All right, anything else? Excuse me? Sorry. Anything else? I'm sorry. EXCEPTIONAL REPORTING SERVICES, INC 38 1 MR. FULLER: Yes, your Honor. And it's not just 2 judicial materials. We refer the Court to In Re Application of 3 New York Times, which we've cited. 4 It involves the analogous situation of warrants. 5 not pre-indictment warrants but post-indictments warrants, so 6 where there's not an active, ongoing investigation that has not 7 reached the arrest at the trial stage. 8 finds that there has been a history of openness with regard to 9 these post-indictment warrant proceedings and for the same It's at 585 F.Supp.2d 83. And, again, And it essentially 10 reasons that we just argued, that the logic prong of the First 11 Amendment test also supports access. 12 that strong analogy between search warrants and 2703(d) 13 applications and orders, particularly as it regards the 14 judicial process and the judicial participation in that 15 process, we think that that is a compelling precedent for 16 extending the First Amendment right of access to 2703(d) orders 17 as well. 18 THE COURT: All right. And so we would, based on The Court finds that the 19 materials here or at issue here fail both prongs of the First 20 Amendment experience and log tests, so they're not subject to 21 the First Amendment right of access. 22 1986 statute. 23 clearly not a widespread history of disclosing these type of 24 orders to the general public. 25 they are presented ex parte -- or they're considered in-camera. And, I mean, this is a I didn't see where it was -- I think it's And as the government stated, EXCEPTIONAL REPORTING SERVICES, INC 39 1 And regarding the logic issue, the Court doesn't find the 2 public access to be significant. 3 nature of what they are, pre-indictment, investigatory process, 4 to be effective must generally be confidential. 5 doesn't find that the tests are satisfied regarding these 6 matters. I mean these, just by the And the Court 7 I talked about the update status report. I probably 8 need a little more input on the docket sheets because docket 9 sheet is there to give the public information as to what's 10 there, what has been done. 11 changes in that regard. 12 little -- not having -- I have -- I'm having little issues as 13 to what should be there, I guess, but probably those need to be 14 changed. 15 And, you know, I'm open to some I'm not quite sure yet. MR. LEATHERBURY: I'm having a Yes, your Honor, particularly under 16 that Second Circuit case holding that there is a qualified -- 17 or First Amendment right of access to docket sheets. 18 again, as Mr. Fuller said, I think the devil is in the details 19 about how much is too much from the government's perspective 20 versus how much is not enough from our perspective. 21 THE COURT: 22 MR. LEATHERBURY: You know, And -- But what --- it's clear there can be a more 23 specific description than what's on the docket sheets now which 24 just say "sealed event," "sealed order," "sealed event," those 25 sorts of things. EXCEPTIONAL REPORTING SERVICES, INC 40 1 2 THE COURT: I agree. Does the government have any comments on that? 3 MR. NEUROCK: I do, your Honor. First of all, the -- 4 I want to make it clear that the discussion we're having here 5 is not something that's required by the First Amendment. 6 the Court's found that the First Amendment right of access 7 doesn't apply, then it's not bound to change the docket sheet. 8 But -- 9 THE COURT: If Well, I just think -- I mean, the docket 10 sheets are there, they index judicial proceedings. 11 whatever it is going to be sealed, the public won't have access 12 to that. 13 it, it's probably proper. 14 You know, But as to what it is and maybe how the Court acted on MR. NEUROCK: We're fine with a change like that, 15 your Honor. If it were to say something like, "Application for 16 Section 2703(d) order filed," and then "Order granting Section 17 2703(d) order," or "Order denying Section 2703(d) order," we'd 18 be okay with that. 19 THE COURT: 20 MR. FULLER: Any -And Dow Jones would be okay with that. 21 I would just make the one small addition that, you know, a lot 22 of these applications have a bunch of different requests kind 23 of all pulled together. 24 trace, we've got D orders, we've got subpoenas, we've got 25 statutory search warrants. We've got pen register, trap and And so I would think that an entry EXCEPTIONAL REPORTING SERVICES, INC 41 1 ought to reflect that, particularly as it relates to ongoing 2 access issues. 3 we've sought access are called In Re Sealed Application, some 4 are called In Re Pen Register. 5 one is In Re Search Warrant. 6 Warrant, then the government's argument that these aren't 7 search warrants looks a lot different. 8 more specificity with regard to the basis of the application 9 would help guide the Court as well as anyone who is seeking You know, one -- some of these cases in which The last one -- the most recent Well, if it's In Re Search And so I think that the 10 access to these to try and determine exactly what types of 11 access might apply. 12 THE COURT: 13 MR. NEUROCK: 14 THE COURT: 15 MR. NEUROCK: 16 THE COURT: 17 MR. NEUROCK: 18 Any comments? Not really, your -And we --- Honor. I agree with that. I -- I'm sorry? Not really, your Honor. I agree with that -- 19 THE COURT: 20 MR. NEUROCK: Okay. -- that it's something that -- for 21 efficiency purposes, we've tended to bring a lot of these 22 actions under one single document so that we don't have to keep 23 coming back to the judge to get separate authorizations for 24 different types of investigatory techniques in the same 25 investigation, so we've just found it expedient to do that at EXCEPTIONAL REPORTING SERVICES, INC 42 1 one time. 2 THE COURT: Right. And I'll visit with the deputy 3 clerk a little bit more about it. If I have any more 4 questions, maybe we can get back on the phone or something. 5 But, I mean, it's an issue for me, not even talking about this 6 case in particular, when things are just -- it'll just say 7 "sealed." 8 from the Court's perspective to, you know, figure out what you 9 need to read to prepare. Well, you have to open every single thing up, even So, Brandy, we'll visit with Maryann 10 about that and see what's best. 11 decision we'll let you all know what we're doing. 12 MR. NEUROCK: And maybe before we make a If -- your Honor, if I could suggest 13 that the -- whatever changes the Court decides to make, if it 14 decides to make any changes, should be prospective for new 15 cases that are filed. 16 THE COURT: I agree. It would create a ton of work. 17 But -- and I may be stepping out of line here because I don't 18 know if this has to be, you know, run through the Chief Judge 19 and done as a district as a whole, but I will check into it and 20 we can get back, if there's some issues, to you. 21 anything else? 22 MR. NEUROCK: 23 THE COURT: 24 government's update. 25 MR. NEUROCK: Is there Not from the government, your Honor. So I -- then the Court will await the Yes, your Honor. EXCEPTIONAL REPORTING SERVICES, INC 43 1 2 MR. LEATHERBURY: your Honor? Was it -- 3 THE COURT: 4 MR. NEUROCK: 5 THE COURT: 6 MR. NEUROCK: 7 8 9 I said -- is ten days sufficient? If I could -I said ten or 14 I'd be fine with. If I could have a moment? THE COURT: That's fine. And then every six months after that -MR. NEUROCK: 11 THE COURT: Yes, your Honor. -- we will docket that. Anything else from Dow Jones? 13 MR. FULLER: 14 THE COURT: 15 MR. NEUROCK: 16 THE COURT: 17 MR. LEATHERBURY: 18 If we could have two weeks, please, your Honor, that would be great. 10 12 And what was the date for that, No, your Honor, thank you very much. From the government? No, your Honor, thank you. All right, thank you, you're excused. Thank you, your Honor. (This proceeding was adjourned at 2:25 p.m.) 19 20 21 22 23 24 25 EXCEPTIONAL REPORTING SERVICES, INC CERTIFICATION I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the aboveentitled matter. July 25, 2015 Signed Dated TONI HUDSON, TRANSCRIBER EXCEPTIONAL REPORTING SERVICES, INC