Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit
48 Pages Posted: 23 Nov 2008
Date Written: November 20, 2008
The advent of electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. The emergence of a "cottage industry" of websites that republishes court filings and plea agreements online for the purposes of witness intimidation, retaliation, and harassment poses a grave risk of harm to cooperating witnesses and defendants. The benefits associated with the remote electronic availability and dissemination of judicial documents may thus come at a considerable cost.
This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures. This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal. Finally, courts may choose to reconsider which documents ought to be maintained in the public record. This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49.1.
The Note also includes a comprehensive survey of the electronic access policies of the federal district courts.
Keywords: nonparty, remote, electronic, access, plea agreement, case file, second circuit, whosarat.com, 49.1
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