Last year, I wrote about a case in which media outlets were forbidden from identifying a recently released drug cartel ex-boss as plaintiff in a privacy lawsuit. There is now an appeal in the case, but the Ninth Circuit (acting through its Appellate Commissioner) has provisionally sealed the appellant's opening brief until the merits panel can decide a motion to seal, which will likely be many months from now.
I'm therefore planning to file this motion to intervene and reconsider, on my own behalf (it's due tomorrow, though I'd like to file it late tonight or early tomorrow morning); would love to hear people's comments on it before I do file it. Here's the substantive part:
Motion to Intervene and Reconsider Order of Sept. 1, 2022
Eugene Volokh seeks to intervene in this case, solely in order to ask this Court to reconsider the Order of Sept. 1, 2022, which provides that Appellant's Opening Brief should be "maintain[ed] under provisional seal" until the sealing questions are resolved by "the panel assigned to decide the merits of this appeal." Volokh would like to exercise his right to promptly access a redacted version of the Opening Brief, even if Doe's name and identifying information need to be deleted from the brief for now….
II. Appellate briefs may not be fully sealed, even temporarily, without a showing that redaction would not be possible
"[T]he public's First Amendment and common law rights of access" extend to "appellate filings" as well as trial court filings, because "the public should be given an opportunity to engage in and follow the dialogue" within those filings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1097 (9th Cir. 2014). Circuit Rule 27-13(a), which recognizes that "This Court has a strong presumption in favor of public access to documents," reflects this principle. And "the public interest in obtaining news is an interest in obtaining contemporaneous news," Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (emphasis added), not long-delayed news. Indeed, even a delay of from a few days to "up to two weeks" in making filed documents accessible may violate the right of access. Id. at 597-98.
