The opinion of the court was delivered by: Judge Nora Barry Fischer
On May 3, 2011, Kelly Hardy ("Defendant") filed with this Court a Motion To Seal Document From Public View With Citation to Authority. (Dkt. ). The United States ("the Government") filed its response on May 6, 2011 and the Defendant filed its reply on May 10, 2011. (See Dkts. -). For the reasons put forth below, Defendant‟s motion is DENIED.
Prior to Defendant‟s sentencing, this Court granted Defendant‟s motions to file both a sentencing memorandum and a psychological evaluation under seal. (Dkts. -, ). Thereafter, this Court conducted a two day sentencing hearing. (Dkt.  at ¶ 2). The first day was devoted almost entirely to the testimony of the defense expert in forensic pathology. Id. The expert‟s testimony revolved around "the sensitive personal and family information that had previously been set forth in the memorandum and expert evaluation filed under seal. Id.
The official transcript of the August 12 hearing was placed on CM/ECF on December 1, 2010. (Dkt. ). On December 3, 2010, the official transcript of the April 22, 2009 proceedings in front of Judge Bissoon were placed on CM/ECF. (Dkt. ). Notice of Intent to Request Redaction of Specific Personal Data Identifiers was filed by Defendant on the same day, (Dkt. ), and the Redacted Transcript was filed two weeks later. (Dkt. ). No similar filings were made with respect to the August 12 transcripts until the instant motion was filed on May 3, 2011.
Defendant‟s motion to seal is based on the "sensitive and private" nature of the information contained within the transcript. (Dkt.  at ¶ 3). Defendant argues that the Court may seal the entire transcript under Federal Rule of Criminal Procedure 49.1(d). Alternatively, Defendant argues that the Court may enter a protective order to "limit or prohibit a nonparty‟s remote electronic access to a document filed with the court. (Dkt.  at ¶ 5 (citingFED. R. CRIM. P. 49.1(e)(2)). Because of the sensitive and private nature of the information contained within the transcript, Defendants claim that the Court has "good cause" to enter such a protective order. Id. at ¶ 8.
The Government responds that there is a "presumption of openness" in criminal proceedings. (Dkt.  at 1 (citing United States v. Antar, 38 F.3d 1348, 1358 (3d Cir. 1994)). This presumption may only be overcome when justified by an "overriding interest articulated in findings." Antar, 38 F.3d at 1358 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581(1980)). This requires "particularized findings of a compelling interest" to be placed on the record. (Dkt.  at 1-2 (citing Antar, 38 F.3d at 1362)). Stated succinctly, the Government argues that the Defendant‟s "meager demonstration" is insufficient to warrant any limitation upon access under the requirements of Antar. (Dkt.  at 2-3).
The Government also argues that there is actually a "particularly strong public interest" in ensuring that records of Defendant‟s sentencing proceeding remain public. Id. at 3. This is due to the "significance of [Defendant‟s] prosecution" and the "novel and questionable diagnosis presented on [Defendant‟s] behalf." Id. Additionally, the Government notes that members of the media were present at Defendant‟s sentencing, including the proceeding to which Defendant now seeks to restrict or prohibit access. Id. Finally, the Government argues that Rule 49.1 is not applicable in the manner with which Defendant attempts to use it. Id. at 4. Indeed, the Rule is not "intended to affect the limitations on sealing that are otherwise applicable to the court." FED. R. CRIM. P. 49.1, Advisory Committee Notes.
Defendant replies first that a protective order under Rule 49.1(e) is not a restriction upon access because members of the public may access the protected document on the public computer terminal in the clerk‟s office. (Dkt.  at ¶ 2). Defendant turns next to the question of whether "good cause" exists for issuing the protective order, and concludes that it does. Defendant bases this conclusion first upon the fact that the transcript largely incorporates information from the memorandum and expert evaluation previously filed under seal. (Dkt.  at ¶ 5). Further, a portion of the testimony discusses mental health and emotional issues associated with Defendant‟s family members. (Dkt.  at ¶ 6). Thus, the transcript jeopardizes the privacy interests of "innocent" third parties. Id.
Rule 49.1 was created in response to section 205(c)(3) of the E-Government Act of 2002, Public Law No. 107-347, which directed the Supreme Court "to prescribe rules "to protect privacy and security concerns relating to electronic filing of documents and the public availability . of documents filed electronically.‟" FED. R. CRIM. P. 49.1, Advisory Committee Notes. Therefore, Rule 49.1 provides "privacy protection for filings made with the court." FED. R. CRIM. P. 49.1. These protections are not unlimited, however. Subdivision (e), for example, is not "intended to affect the limitations on sealing that are otherwise applicable to the court." FED. R. CRIM. P. 49.1, Advisory Committee Notes.
a.Federal Rule of Criminal Procedure 49.1(d)
As to Defendant‟s argument under Rule 49.1(d), the Court notes that this subdivision applies to "filings made under seal." FED. R. CRIM. P. 49.1(d). The transcript which Defendant seeks to have placed under seal was not filed under seal, nor did Defendant attempt to have the transcript sealed in a timely manner; the transcript was publicly available on CM/ECF for over six months before Defendant filed his motion to seal under Rule 49.1(d). Because the transcript was not a "filing made under seal," and because the document has been available to the public for ...