The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
ORDER OF COURT RE: JURY SELECTION, VOIR DIRE, AND OTHER PRETRIAL ISSUES (SEE DOC. NOS. 598, 599, 604, AND 607)
A. Procedure for Previously Scheduled Trial - 2006
1. "Agreed-to" Pretrial Order of March 31, 2006 (doc. no. 42) - Voir Dire Questions Paragraphs 7 of said "Agreed-to" Pretrial Order states as follows:
Voir Dire. Counsel are permitted to supplement the standard questions provided that the proposed supplemental voir dire questions are submitted to the Court in writing, along with a proposed Jury Questionnaire, on or before June 15, 2006. Voir dire questions will be asked by the Court, with as many questions as possible asked of the panel en banc unless resolved by the Questionnaire (emphasis added). Individual voir dire will be limited in the interest of conserving time.
The government shall have six (6) peremptory challenges and the defense shall have ten (10) peremptory challenges collectively. Each side shall have one challenge for six alternate jurors.
On June 15, 2006, the Government filed a document, entitled "Government's Notice of Filing Proposed Voir Dire Questions" (doc. no. 234), listing fourteen (14) proposed voir dire questions. As will be seen later, many of said proposed voir dire questions were incorporated into the lengthy Jury Questionnaire. See doc. nos. 287, 289, and 295 and Text Orders of 7/11/06 and 11/2/07.
Likewise, on the same date, defendant filed a document, entitled "Notice of Filing Defendant's Proposed Voir Dire in Accordance with the Court's March 1, 2006 Pretrial Order (doc. no. 42)" (doc. no. 231). Exhibit A thereto contained 25 proposed voir dire questions. Again, many of said proposed voir dire questions were incorporated into the lengthy Jury Questionnaire. See doc nos. 287, 289, and 295 and Text Orders of 7/11/06 and 11/2/07.
2. Proposed Jury Questionnaire
On June 15, 2006, although the parties had not reached agreement on the Jury Questionnaire pursuant to the agreed-to Pretrial Order (doc. no. 42, ¶ 7), defendant filed a document, entitled "Notice of Filing Defendant's Proposed Jury Questionnaire in Accordance with the Court's March 1, 2006 Pretrial Order (doc. no. 42)" (doc. no. 230), which stated in the second paragraph as follows:
The Government and the defense have been in coordination with Mr. Lydon, law clerk to this Honorable Court. The parties believe that they will be able to reach an agreement in substantial part of the final questionnaire. With the Court's permission, the parties will review the various submissions, formulate their responses, and meet with Mr. Lydon during the week of June 19, 2006 in an effort to craft a joint jury questionnaire.
Attached thereto as Exhibit A was "Defendant's Proposed Jury Questionnaire," consisting of 24 pages and 63 detailed questions, which repeat many of the proposed voir dire questions. See doc. no. 231. Same is true as to the Government's proposed voir dire questions. See doc. no. 234.
3. Text Order of Court, dated July 11, 2006 re: Final Jury Questionnaire
On July 11, 2006, the Court basically adopted the defendant's proposed jury questionnaire (doc. no. 230) with minor modifications. The full text of the Order is as follows:
TEXT ORDER re: Final Jury Questionnaire. After reviewing defendant's proposed jury questionnaire (questions 1-63) (document no. 230) and the government's proposed jury questionnaire (questions 1-75) (document no. 237), the Court rules that the final jury questionnaire will delete the Instructions because Instructions will accompany the Court's letter to prospective jurors, and will consist of 61 of defendant's 63 questions as follows: 1, 2 (will be moved to end of questionnaire), 3-6, 7 (name of home county only - home address at end of questions), 8-19, 20 (should indicate 5 to 6 weeks), 21-39, 40 (only as to "entities", not as to "individuals," since final witness list does not yet exist), 41 ("entity" # only), 42-57, 58 (delete - duplicative of question 43), 59 (delete -confusing), 60-63, plus government's proposed questions 25, 26, 27, 37, 38, 41, 46, and 56 (unless adequately covered by defendant's questions). The last page of the questionnaire shall be a separate page and contain the prospective juror's name, juror number, home address, and signature. Since the final jury questionnaire is basically defendant's proposed jury questionnaire, counsel for defendant shall prepare the final jury questionnaire in accordance with this Text Order and file same by 3:00 PM today. Objections thereto (if any) shall be placed on the record tomorrow, July 12, 2006, at the second pretrial conference. Counsel shall be aware that the jury questionnaire will accompany a cover letter, summons, standard questionnaire, and other normal juror information. Jury Selection shall commence on October 11, 2006. Text-only entry; no PDF document will issue.
This text-only entry constitutes the Court's order or notice on the matter. Signed by Judge Arthur J. Schwab on 7/11/06. (emphasis added.)
On July 11, 2006, pursuant to the above Text Order, defendant filed doc. no. 286, entitled "Notice of Filing Revised Jury Questionnaire Pursuant to Court's July 11, 2006 Order" with attachment thereto as Exhibit A, "Revised Jury Questionnaire Pursuant to Court's July 11, 2006 Order" (doc. no. 286-2) consisting of 24 pages and 70 questions. The juror's full name, home address, and signature were placed on the last page, to provide for its removal by the Jury Administrator pursuant to Text Order of July 11, 2006. See doc. no. 295 at B. 5.
4. Second Preliminary Pretrial Conference re: Final Jury Questionnaire
The next day, July 12, 2006, the Court conducted the Second Preliminary Pretrial Conference at which the Jury Questionnaire (see doc. no. 286-2) was considered.
Importantly, no written objections were filed before the conference, nor were any objections placed on the record at the Second Preliminary Pretrial Conference (see doc. no. 290), except by counsel for the Government. The Hearing Memo thereon states as follows:
Jury Questionnaire: Defendant shall file, by mid-afternoon today [three o'clock anticipated], a second revised jury questionnaire in a form consistent with changes discussed and agreed to today; Court declined government's request for a series of questions as to which defendant objected; otherwise, the revised jury questionnaire was agreed to without objection. (Doc. no. 290, 1st ¶)
No objection was filed by either party to this statement in said Hearing Memo (doc. no. 290) (filed 7/12/06).
That afternoon, at 3:14 PM, defendant filed a document, entitled "Notice of Filing Second Revised Jury Questionnaire Pursuant to Court's July 12, 2006 Order" with attachment thereto as Exhibit A, "Second Revised Jury Questionnaire Pursuant to Court's July 12, 2006 Order" (doc. no. 287-2), consisting of 24 pages and 69 questions with numerous sub-parts. This document is attached hereto as Exhibit A. In this draft, defendant excluded Mr. Thornburgh as trial counsel for the jury trial, since he had never appeared in the courtroom and failed to attend the mandatory conference for trial counsel with the Court.
Again, no objection was filed to the procedure of the removal of the last page of the Jury Questionnaire, containing the juror's name, home address, and signature. And so, the record stood without any objections from defendant, from July 12, 2006, until when defendant for the first time objected to not having access to the juror's name and home address, sixteen (16) months later, on November 28, 2007. See doc. no. 596.
In fact, the Jury Questionnaire was sent out to approximately 300 jurors, prior to defendant's appeal to the United States Court of Appeals for the Third Circuit, without objection to the anonymity of the jury (i.e., the removal of the last page of the completed Jury Questionnaire, containing the name and address, before any copies of the Questionnaires would be given to counsel).
5. Mailing of the Jury Questionnaire on July 14, 2006
As stated above, on July 13, 2006, the Court adopted as the Final Jury Questionnaire, in the form set forth in doc. no. 287, which was basically defendant's proposed Jury Questionnaire. Compare doc. no. 230 to doc. no. 287. The July 13, 2006 Order (doc. no. 289) stated as follows:
The Final Jury Questionnaire shall be in the form set forth in doc. no. 287. The attached cover letter of this Court and Instructions for Jury Questionnaire shall accompany each Jury Questionnaire.
Two documents were attached to said Order of Court. First, the Court's letter to prospective jurors, dated July 14, 2006, as follows:
Enclosed is a summons for jury service directing you to appear for possible jury duty in a case entitled United States of America v. Cyril H. Wecht, 06-cr-026. Please complete and return the attached Jury Information Form and Jury Questionnaire in the enclosed postage paid envelope, following the instructions provided. Once we have received your questionnaire, you will receive further instructions from the Court.
The purpose of the questionnaire is not to ask unnecessarily personal questions, but to determine whether you, as a prospective juror, can decide this case fairly and impartially. It is important that you be completely truthful and accurate in answering each question as your answers are made under penalty of perjury. Please do not discuss the questionnaire or your answers with anyone at any time, as your answers must be yours and yours alone.
Serving as a juror is one of the most important ways in which you, as a citizen, have the opportunity to participate directly in your government. But it is not only an opportunity; it is the obligation and duty of every citizen to serve when called upon.
We realize that completing this form and questionnaire may require substantial effort on your part, but we also know that obtaining a fair and impartial jury is the only way that justice can be done. We estimate that this case may last five to six weeks, based on the collective wisdom and experience of the attorneys and the Court.
Thank you for your time and attention to filling out this form and questionnaire. The Court, the parties and the attorneys appreciate your cooperation in performing this essential public service.
Secondly, and importantly, the Court's Instructions to Prospective Jurors, dated July 14, 2006, states as follows:
A. Please type or print your answers to each of the following questions by making the appropriate entry on the questionnaire. Your answers will assist the Judge, the parties and the attorneys to select a qualified and impartial jury. There are no right or wrong answers. Answer all questions honestly and to the best of your ability. If you do not understand a question, leave the space for the answer blank.
B. Do not discuss your answers with anyone else. Your answers to the questionnaire will be treated as confidential and will be seen only by the Court, the parties and the attorneys. They will not be available to the public. (Emphasis added.)
C. When you finish the questionnaire, please sign on the space provided at the end of the questionnaire, and return the completed questionnaire and your completed Jury Information Form attached to your Summons, and return to the Clerk of Court in the enclosed, stamped envelope within twenty (20) days of receipt.
D. For your information, barring unexpected circumstances, it is this Court's practice and intention to conduct the jury portion of the trial on Mondays through Thursdays, commencing on October 16, 2006; and jury selection will commence on October 11, 2006.
In order to promote "completely truthful and accurate" answers to the Jury Questionnaire (see doc. no. 289-2, page 1), which might contain potentially very personal answers and information, the Court assured prospective jurors in paragraph B, second and third sentences, as follows:
Your answers to the questionnaire will be treated as confidential and will be seen only by the Court, the parties and the attorneys. They will not be available to the public. (emphasis added.)
This "confidentiality" of the questionnaire is of assistance to the parties and their counsel to increase the quality and quantity of the answers as part of the process of obtaining a fair and impartial jury.
6. Nature of Defendant's Limited Objections to Doc. No. 289
The Order of Court (doc. no. 289) re: Final Jury Questionnaire (doc. no. 287), with its two (2) attachments bearing the Court's signature, was filed at 10:15 AM. The same day, at 3:20 PM, defendant filed a document, entitled "Motion to Modify Prospective Juror Letter" (doc. no. 291) seeking the substitution of the name of the Jury Administrator for the Court on the letter and instructions to the prospective jurors, and making only one other objection. The first sentence of paragraph 3 of said Motion states as follows:
The Defendant's objections are: (i) that the letter should emanate from the jury administrator and not from the Court; and (ii) as a substantive point, the defense objects to the notation that the answers are made under the penalty of perjury.
However, importantly for our current purposes, defendant did not in said Motion of July 13, 2006, nor thereafter, ever take the position that the Jury Questionnaires were "public records" until defendant filed a document, entitled "Defendant's Notice of Issues for Pretrial Conference", (doc. no. 596), on November 27, 2007, sixteen months later, by saying at page 2, item 1.b., "[t]he [jury] questionnaires are part of the public record . . . ," without any citation to case law or statute.
The Court denied said Motion to Modify Prospective Juror Letter (doc. no. 296) by Order of Court (doc. no. 294), and followed by Memorandum Relating to Order of Court (doc. no. 294) Denying Defendant's Motion to Modify Prospective Juror Letter (doc. no. 291). Doc. no. 296, filed July 14, 2006.
7. Jury Questionnaire and Procedures (doc. no. 295)
The Court thereafter issued an Order of Court Regarding Jury Questionnaire and Procedures (doc. no. 295) (dated July 14, 2006) which summarized some of the history of the development of the Jury Questionnaire, and the procedure by which the Jury Questionnaire would be handled by the Jury Administrator. In paragraph B.5. thereof (doc. no. 295 at 4) (later adopted by this Court for the current jury selection procedure - - see doc. no. 595, first paragraph), the Jury Questionnaire Procedure states:
. . . Therefore, Jury Administrator Morder is instructed to remove and retain the last page of the Jury Questionnaire setting forth the prospective jurors' names and current addresses.
Counsel never objected to this provision on or about July 14, 2006, nor to the recent Order of Court re: Additional Jury Selection Procedures (doc. no. 595) ("On November 27, 2007, the Jury Administration shall issue 400 summons to potential jurors, following the standard procedure set forth in paragraph B.1 through B.5 of Order of Court Regarding Jury Questionnaire and Procedure."), as stated above, until very recently.
The Jury Questionnaire and related cover letter and other documents were mailed to 300 prospective jurors, on July 14, 2006.
8. Appeal to Court of Appeals and Continued Obligation of Trial Counsel to Prepare for Trial
While defendant filed an appeal in this case, on or about June 27, 2006 (see doc. no. 256), the stay issued by the United States Court of Appeals on September 15, 2006, only applied to the trial, as follows: "The trial in the above-captioned matter is stayed pending the opinion of the [C]court" - - and not to the pretrial procedures.
After July 27, 2006, the pretrial process continued a pace, including a lengthy opinion on the Motion to Dismiss (doc. no. 180) by Memorandum Opinion and Order Denying Motion to Dismiss (doc. no. 264); the entire Jury Questionnaire process described above in detail; filing and ruling on numerous Motions in Limine throughout August and September, 2006; the issuance of the lengthy Memorandum Opinion and Order of Court Denying Defendant's Motion for Recusal of the Trial Judge (doc. no. 302); and other extensive docket activity.
In fact, from the time of defendant's appeal on June 27, 2006 (see doc. no. 256) to the issuance of the mandate by the Court of Appeals on July 10, 2007 (doc. no. 501), there were almost 250 docket entries in this matter, but not one objection by defendant (nor the media)*fn1 to the Jury Questionnaire, nor to the process of removing the name and home address of the prospective jurors from the Jury Questionnaire before copies were to be given to counsel, nor to the language of the Order of Court Regarding Jury Questionnaire and Procedure (doc. no. 295, ¶ B.5.), nor to the language of ¶ B.6. (". . . on the completed Jury Questionnaire (excluding names and addresses) . . . .")
B. Juror Selection Procedure for Currently Scheduled Trial - 2008
1. Current Dates for Jury Selection and Commencement of Trial
On November 27, 2007, the Jury Administrator issued 400 summons to potential jurors; the jurors were ordered to report in groups starting on January 10, 2008; with final selection on January 23, 2008; and the commencement of trial on January 28, 2008. See Order of Court Re: Additional Jury Selection Procedures (doc. no. 595).
2. Jury Questionnaire - Text Order of 11/2/07
Previously, by Text Order of November 2, 2007, the Court directed that the prior "Final Jury Questionnaire" (doc. no. 287) would be used in jury selection, but it would be completed at the Courthouse, instead of using the mail. The Court consulted with other district judges and the Jury Administrator on the procedure. The Court did not consult with counsel (nor the media) since the Final Jury Questionnaire had already been approved, and the Jury Selection Procedure in doc. no. 295, had existed, without objection, for more than sixteen (16) months, and over four (4) months since the remand. Said Text Order stated as follows:
ORDER as to CYRIL H. WECHT - Notice Regarding Jury Questionnaire - - The Court has reconsidered the matter of the use of a jury questionnaire. (See doc no. 502, section E, paragraph one, fourth sentence). Upon reconsideration, the Court will not mail written jury questionnaires in advance of trial to prospective jurors, as occurred before the originally scheduled trial (see Text Orders of 7/11/06 and 7/14/06 and doc. nos. 289 and 295). Instead, the Court will use written jury questionnaires in connection with the jury selection for the upcoming January 28, 2008 trial, which questionnaire shall be completed by prospective jurors, and thereafter reviewed by the Court and counsel, at the United States Courthouse. The Court has reviewed the prior questionnaire (doc. no. 287-2) and several other jury questionnaires used in this District and other United States District Courts in other high profile cases. After significant consideration, the Court continues to find doc. no. 287-2 to be fair, adequate, and complete. Therefore, the Court will use doc. no. 287-2 as the jury questionnaire in the upcoming trial, and will follow the jury questionnaire procedure as set forth in Order of Court Regarding Jury Questionnaire and Procedures (doc. no. 295 at B.1-B.5). Additional jury selection procedures will be set forth in future Order(s) of Court. Text-only entry; no PDF document will issue. This text-only entry constitutes the Courts order or notice on the matter. Signed by Judge Arthur J. Schwab on 11/2/07.
No objection was promptly filed by defendant or the media.
3. Order of Court Re: Additional Jury Selection Procedures (Doc. No. 595)
On November 26, 2007, the Court entered the Order of Court Re: Additional Jury Selection Procedures (doc. no. 595), which in essence adopted the unobjected to Order of Court Regarding Jury Questionnaire and Procedure (doc. no. 295), dated 7/14/06, and established an orderly juror selection process over numerous dates. The Order of Court (doc. no. 595) in its entirely states as follows:
On November 27, 2007, the Jury Administration shall issue 400 summons to potential jurors, following the standard procedure set forth in paragraph B.1 through B.5 of Order of Court Regarding Jury Questionnaire and Procedure. Doc. No. 295. See also Text Order of 11/2/07 as modified. The jury will be anonymous. This standard pre-screening by the Jury Administrator, including hardship issues, probably will be completed by early January.
The remaining pool of qualified prospective jurors will be instructed to appear in groups of 60 on January 10, 2008, January 14, 2008, and January 16, 2008 (and additional days if necessary). On each such day, a group of 60 will report to the Jury Assembly Area at 8:30 AM for the standard jury orientation and completion of the jury questionnaire. Hopefully, the questionnaire will be completed by noon.
Four copies of all completed jury questionnaires for each day will be provided to the Court by the Jury Administrator in the early afternoon of each day. (The original questionnaire along with the signature page of each questionnaire will be retained by the Jury Administrator.) Counsel will review the questionnaires in the Courtroom in the afternoon, as instructed by the Court, to determine challenges for cause and gather information for future peremptory challenges. (No questionnaire may leave the Courtroom, and all copies thereof must be returned to the Court by counsel.) The Court will rule on any challenges for cause in the late afternoon and the morning of the next day (i.e., January 11, 2008, January 15, 2008, and January 17, 2008, etc., as necessary). Jurors will be available on January 11, 2008, etc., for follow-up questions (if any) by the Court that afternoon, and the next day (if necessary). The Court's rulings on challenges for cause will be provided to the Jury Administrator. This process will continue until a sufficient pool of qualified jurors is achieved. It is tentatively expected that the final selection process will occur on January 23, 2008 (40 qualified jurors before peremptory challenges with a post-peremptory challenge jury of 12 persons with 6 alternates), and trial shall commence on January 28, 2008.
4. Objections to Jury Selection Procedure (Doc. Nos. 604 and 607)
Following the above Order, on November 27, 2007, defendant filed a "notice of issues for pretrial conference" and stated therein that he wished to obtain "clarification" on, inter alia, the jury selection issues including jury anonymity. Doc. no. 597.
On November 28, 2007, this Court ordered that "any appropriate matter, not out-of-time, should be raised in a motion(s) with supporting brief on or before December 4, 2007 at Noon, with response by the Government on December 11, 2007 at Noon." Doc. no. 597.
On December 4, 2007, defendant filed his Motion for Clarification and/or Modification of Trial Procedures and Scope of Exhibit and In Limine Rulings. Doc. nos. 604 and 608. Also, on December 4, 2007, the media intervenors also filed the "Petition by WPXI, Inc., Tribune Review Publishing Company and PG Publishing Company D/B/A Pittsburgh Post Gazette that the Potential Jurors and Empanelled Jurors Not Be Anonymous and for In-Person, Public Voir Dire in Open Court" (Doc. no. 607).
On December 11, 2007, the government filed its response thereto. Doc. No. 613. Additional briefs were filed by the government, defendant, and media, on December 13, 17 and 18, 2007. See doc. nos. 618, 619, 626.
C. Pending Motions re: Jury Selection Process (Doc. Nos. 604 and 607)
In defendant's Motion for Clarification and/or Modification of Trial Procedures (doc. no. 604), he seeks the following relief:
! That the jury administrator shall not remove the signature page from the Jury Questionnaires.*fn2
! That defense counsel shall be permitted to retain the Jury Questionnaires throughout the trial and until this matter is finally concluded, including any appeals (and again, counsel will not provide the questionnaire or any information contained therein to any third party, including the media).
! That each prospective juror shall be subjected to voir dire in open court (apparently repeating, in open court, the extensive questions and answers in the Jury Questionnaires, in addition to the in-court standard voir dire questions) (as supplemented) and at sidebar before the parties exercise "for cause" challenges.
! That Judge David Wecht (defendant's son) shall be permitted to assist defendant during the voir dire process (and Judge Wecht will not provide any information regarding this process to any third party, including the media).*fn3
Additionally, in the "Petition by WPXI, Inc., Tribune Review Publishing Company and PG Publishing Company D/B/A Pittsburgh Post Gazette that the Potential Jurors and Empanelled Jurors Not Be Anonymous and for In-Person, Public Voir Dire in Open Court" (doc. no. 607), the media intervenors seek the following relief:
! That the jury not be anonymous and that the media be granted access to the names (and addresses) of all potential and empaneled jurors.
! That the Court conduct all aspects of the voir dire in open court. (The requested process, in effect, would barr the use of the Jury Questionnaire, or repeating in open court, the extensive questions and answers in the Jury Questionnaires - -similar to defendant's request - - plus barring the use of side bar for the personal and embarrassing answers.)
II. BACKGROUND AND ANALYSIS OF THE ORDER OF THE BOARD OF JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, MISC. 06-211 RE: JUROR'S NAMES AND HOME ADDRESSES; AND ITS RANDOM JURY SELECTION PLAN
A. Sixth Amendment and 28 U.S.C. § 1861 and § 1863(b)(7)
Section 1861 of Title 28 of the United States Code, which was enacted on June 25, 1948, provides that it is the policy of the United States that all litigants in federal courts entitled to a jury trial shall have the right to juries (grand and petit) selected at random from "a fair cross section of the community in the district or division wherein the court convenes."
The "fair cross section" requirement of this chapter is the functional equivalent of "reasonably representative" standard of the Sixth Amendment, and the test for showing under-representation under the Constitution and Section 1861 are the same. United States v. Musto, 540 F.Supp. 346 (D.C. N.J. 1982), affirmed 715 F.2d 822, cert. denied, 468 U.S. 1217.
Section 1863(b)(7) of Title 28 of the United States Code provides that the plan for random jury selection shall "fix the time when the names drawn from the qualified jury wheel shall be disclosed to the parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require." (Emphasis added.)
B. Random Jury Selection Plan
On March 29, 2001, the Plan for Random Jury Selection of the United States District Court for the Western District of Pennsylvania, as amended, was approved by a Reviewing Panel, consisting of Members of the Judicial Counsel of the Third Circuit and the Board of Judges of the Western District of Pennsylvania. The Plan was approved and signed by D. Brooks Smith, who was the Chief Judge of the United States District Court for the Western District of Pennsylvania at the time, and Edward Becker, who was the Chief Judge of the United States Court of Appeals for the Third Circuit at the time. In its Order, the Reviewing Panel ascertained that the Jury Selection Plan complies in all particulars with 28 U.S.C. § 1863, and the current Plan for Random Jury Selection went into effect on April 1, 2001.
The Plan for Random Jury Selection divides the Western District of Pennsylvania into divisions. The Pittsburgh Division consists of the counties of Allegheny, Armstrong, Beaver, Butler, Clarion, Fayette, Green, Indiana, Jefferson, Lawrence, Mercer, Washington, and Westmoreland. The Plan for Random Jury Selection uses voter registration lists (which are registration lists for a statewide primary or general elections as maintained by the applicable counties) to represent a fair cross section of the community in the Western District of Pennsylvania.
C. Board of Judges' Order - - Misc. 06-211 and History of Rules Regarding Confidentiality of Juror Names and Addresses
In March 2004, the Judicial Conference Committee on Court Administration and Case Management issued a document entitled "Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files." That document set forth limitations on remote electronic access to certain sensitive materials in criminal cases. In pertinent part, the "documents containing identifying information about jurors or potential jurors" were no longer included in the public case file and were no longer made available to the public either at the Courthouse or via remote electronic access. Fed. R. Crim. P. Rule 49.1, Advisory Committee Notes.
Starting on July 1, 2005, when this Court "went live" with the CM/ECF system, up until the present time, this Court has abided the above March 2004 policy setting forth, inter alia, the limitations on identifying juror names in public.
As the Advisory Committee Notes to Federal Rule of Criminal Procedure 49.1 explain, the Rules addressing privacy concerns resulting from public access to electronic case files were codified and adopted by Fed. R. Crim. P. 49.1 with an effective date of December 1, 2007.
Rule 49.1. states, in pertinent part, as follows:
Rule 49.1. Privacy Protection for Filings Made with the Court
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial- account number, or the home address of an individual, a party or nonparty making the filing may include only:
(1) the last four digits of the social security number and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials;
(4) the last four digits of the financial account number; and
(d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.
(e) Protective Orders. For good cause, the court may by order in a case:
(2) limit or prohibit a nonparty's remote electronic access to a document filed with the court.
Fed. R. Crim. P. 49.1 (emphasis added).
Additionally, as the Advisory Committees Notes indicate, "[t]o the extent that the Rule does not exempt [documents containing identifying information about jurors or potential jurors] from disclosure, the privacy and law enforcement concerns implicated by [these] documents can
(5) the city and state of the home address.
(1) require redaction of additional information; or
be accommodated under the rule through the sealing provision of subdivision (d) or a protective order provision of subdivision (e)."
On June 28, 2006, the Board of Judges of the Western District of Pennsylvania approved the entry of a Miscellaneous Order filed at Misc. 06-211. Misc. 06-211, which was signed by Chief United States District Judge Donetta ...