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Media Alerts - North Jersey Media Group, Inc. v. U.S. - Third Circuit
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September 9, 2016
  North Jersey Media Group, Inc. v. U.S. - Third Circuit
Headline: Third Circuit Protects Unindicted "Bridgegate" Co-Conspirator's Identity from Media Requests

Area of Law: Criminal Law, Constitutional Law, Rights of Public Access

Issue(s) Presented: Whether a prosecutor's letter naming an unindicted co-conspirator is more like a bill of particulars, subject to a right of public access, or a discovery disclosure in a criminal case protected from public view.

Brief Summary: The Third Circuit vacated the District Court's order requiring the government to disclose a prosecutor's letter naming an unidentified, unindicted co-conspirator in the Bridgegate case. It held that the letter was not subject to disclosure as a matter historically open to the press and was not akin to a judicial record

Extended Summary: Federal prosecutors brought charges against certain New Jersey government officials involved in a widely reported incident involving allegedly orchestrated lane closures on the George Washington Bridge as an act of political revenge. This scandal is frequently referred to as "Bridgegate."

At the center of the dispute was a prosecutor's letter naming this unidentified, unindicted co-conspirator in the infamous Bridgegate scandal. The unidentified "John Doe" intervened for an appeal after a consortium of media groups obtained a district court order requiring the government to disclose the letter. The central question was whether this letter was an integral part of the criminal discovery process that is protected from public view, or a bill of particulars ("a formal written statement by the prosecutor providing details of the charges against the defendant"), which is publicly accessible. Ultimately, the Court ruled that the letter was not subject to public disclosure.

The Media asserted a right of access to the letter under the First Amendment and common law. To determine the right of access under the First Amendment, the Court used a two-pronged evaluation. First, the "experience prong" evaluates if the place and process was historically open to the press. Second, the "logic prong" evaluates "whether public access plays a significant positive role in the functioning of the particular process in question."

The letter in question was not treated by the parties to the litigation as having the same legal effect of a bill of particulars, nor did it serve the same purpose. Because the Court agreed with John Doe and the government that the letter in question was not akin to a bill of particulars, the first prong of the test was not satisfied. The Court noted in dicta that the second prong would have also weighed in Doe's favor.

As for any common law right of access to the letter, the pertinent question was "whether [the document at issue] was considered to be a 'judicial record.'" Here, the letter was not formally filed with the court. Sending the letter directly to the trial judge also did not bring the letter within the scope of the common law right because the document lacks "adjudicatory significance." As the government describes it, "[t]he court was merely the passive repository of the letter and needed to do nothing with it." Therefore, the letter was not a judicial record subject to the common law right of access.

The full opinion can be found at

Panel: Ambro, Jordan, and Scirica, Circuit Judges

Argument Date: June 6, 2016

Date of Issued Opinion: September 8, 2016

Docket Number: No. 16-2431

Decided: Vacated

Counsel: Jenny R. Kramer, Esq., for Intervenor-Appellant, John Doe; Bruce S. Rosen, Esq., for Media Consortium Appellees; Lee M. Cortes, Jr., Esq., Mark E. Coyne, Esq., David W. Feder, Esq., Paul J. Fishman, Esq., J. Fortier Imbert, Esq., and Vikas Khanna, Esq., for Appellee United States of America; Michael A. Baldassare, Esq., Dillon H. Malar, Esq., Jennifer Mara, Esq., for Defendant William E. Baroni, Jr.; Michael D. Critchley, Esq., for Defendant Bridget Anne Kelly; David R. Kromm, Esq., for Defendant Port Authority of New York and New Jersey.

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Author: Sarah Kalman

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/09/2016 01:13 PM     3rd Circuit  

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