After Trial, WDNY Judge Unseals Ex Parte Documents Relating to Defense Subpoenas Under "Presumption of Access" in Federal Courts

A WDNY court sealed 27 ex parte documents relating to the issuance of the defendant's pretrial subpoenas under Fed.R.Crim.P. 17, so as to not to create a "Hobson's choice" between disclosing trial strategy or foregoing the right to compulsory process.  After trial, however, the same court in United States v. Peters, 03 CR 211S (WMS), 2007 WL 4105671 (W.D.N.Y. November 14, 2007), granted the government's motion to unseal those documents, effectively creating a Hobson's choice for future defense lawyers in this situation: forego your subpoena right or risk digging up material that may hurt the defendant in the event of a sentencing. 

The court based its decision on the "presumption of access and openness in federal courts," quoting United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995).  Interestingly,and not something addressed in the court's decision in Peters, Amodeo held that the presumption of access is designed to create accountability in federal courts, by facilitating professional and public monitoring.  Accordingly, in Amodeo, the Second Circuit held that the strength of the presumption varies according to the document's relevance to the judge's excercise of his/her Article III functions.  It is unclear from the short decision in Peters how any of the 27 sealed documents related to the performance of the judge's functions, but lest you be concerned that Peters authorizes wholesale disclosures of sealed supoena-related materials, Amodeo contains some very useful nuggets against disclosure of such documents, including:

[I]t must be recognized that an abundance of statements and documents generated in federal litigation actually have little or no bearing on the exercise of Article III judicial power ... Unlimited access to every item turned up in the course of litigation would be unthinkable. Reputations would be impaired, personal relationships ruined, and businesses destroyed on the basis of misleading or downright false information ... We believe that the weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.