FEDERAL COURTHOUSE, Aug 25 –
Sometimes an unsealing fight ends not with a ruling, but
with the other side simply declining to make the argument
at all. That's what happened this week in United States v.
Fabiani, before Chief Judge David G. Estudillo in the
Western District of Washington.
The defendant's original motion to seal
Exhibit 3 to his own sentencing memorandum, filed in
April, offered exactly four words of justification: the
exhibit should "remain under seal because it contains
sensitive information."
Inner City Press moved to unseal, arguing
that four words is not the particularized, on-the-record
showing Ninth Circuit law requires before overriding the
presumption of public access — while explicitly asking
only for that legal standard to be enforced, not for
disclosure of anything the case's own sensitive underlying
subject matter might genuinely warrant protecting.
The matter remains pending, with a further brief due this
week and outreach by First Amendment bigs also pending.
Judge Estudillo never had to rule on the
merits. At Fabiani's August 20 sentencing hearing, the
defendant withdrew the sealing motion entirely. This
week's minute order makes the result plain: "Defendant
withdrew his pending motion to seal... Lee's motion to
unseal is therefore DENIED as moot." Denied as moot is not
the same as denied — it means the underlying question was
never defended once it was actually tested.
That is worth setting beside a different
sealing fight still very much alive this week, on the
opposite coast.
In the Eastern District of New York, Judge
William F. Kuntz II heard oral argument Monday on Inner
City Press's motion to unseal an entire eight-year-old
criminal docket, "Sealed v. Sealed" — a case where the
government has not withdrawn anything, and where, at
argument, the government's justification amounted to four
generic categories: personal information, medical
information, third-party information, law enforcement
sensitive information. Judge Kuntz ordered supplemental
briefing by August 28.
Two districts, two sealing disputes, tested
the same way: not by assuming the government or the
defense is right to want secrecy, but by asking them to
say why, specifically, and seeing whether that showing
holds up. In Tacoma, it didn't survive being asked. [For
the record, Fabiani was sentenced to 150 months
imprisonment with placement at FCI Seagoville, Texas
recommended; supervised release for LIFETIME].
Unsealed polygraph report here.
In Brooklyn, the question remains
open. Watch this site
