Case Nos. 09-1511 & 09-1531
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PRISON LEGAL NEWS,

Plaintiff-Appellant,

v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,

Defendant-Appellee.

On Appeal from the United States District Court
for the District of Colorado
The Honorable Marcia S. Krieger
D.C. Case No. 1:08-cv-1055-MSK-KLM
BRIEF OF AMICI CURIAE 60 MINUTES,
THE ASSOCIATED PRESS, WESTWORD, THE AMERICAN
SOCIETY OF NEWS EDITORS, THE ASSOCIATION OF CAPITOL
REPORTERS AND EDITORS, THE SOCIETY OF PROFESSIONAL
JOURNALISTS, AND THE AMERICAN CIVIL LIBERTIES
UNION OF COLORADO
IN SUPPORT OF PLAINTIFF-APPELLANT

SCOTT L. SHUCHART
Jerome N. Frank Legal Services
Organization
Yale Law School
127 Wall St.
New Haven, CT 06511
(203) 432-4800

scott.shuchart@yale.edu

/s/Mark G. Walta
MARK G. WALTA*
Walta, Gehring, Harms &
Dingle LLC
1912 Logan St.
Denver, CO 80203
(303) 953-5999

mwalta@wghd-law.com
* Counsel of Record

Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
60 Minutes is a production of CBS News, a division of CBS
Broadcasting, Inc., which is owned by the publicly-traded CBS
Corporation.
The Associated Press is a mutual news cooperative organized as a
not-for-profit corporation. It has no parents, subsidiaries, or affiliates
that have any outstanding securities in the hands of the public.
Westword is a publication of Denver Westword LLC, a whollyowned subsidiary of Village Voice Media Holdings LLC. No publicly
held corporation owns 10% or more of its stock.
The American Society of News Editors is a non-profit organization
that has no parent company and does not issue stock.
The Association of Capitol Reporters and Editors is a non-profit
organization that has no parent company and does not issue stock.
The Society of Professional Journalists is a non-profit organization
that has no parent company and does not issue stock.
The American Civil Liberties Union of Colorado is a non-profit
organization that has no parent company and does not issue stock.

i

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............................................ i
TABLE OF AUTHORITIES .................................................................... iii
INTEREST OF AMICI CURIAE............................................................... 1
SUMMARY OF THE ARGUMENT .......................................................... 3
ARGUMENT ............................................................................................. 5
I. THE VIDEOTAPE AND PHOTOGRAPHS AT ISSUE
BECAME JUDICIAL DOCUMENTS WHEN THEY WERE
PUBLISHED AS TRIAL EVIDENCE WITHOUT BEING
SEALED. ............................................................................................... 5
A. The Recording And Photographs Were, And Are, Judicial
Documents. ......................................................................................... 5
B. The Judicial Records In Question Were Played In Open
Court Without An Application To Seal. ........................................... 11
II. THE PRESS AND PUBLIC ENJOY A STRONG
PRESUMPTIVE RIGHT OF ACCESS TO UNSEALED
JUDICIAL RECORDS UNDER THE COMMON LAW AND
THE CONSTITUTION. ...................................................................... 13
A. The Common Law Provides A Presumptive Right of
Access to Judicial Documents. ......................................................... 14
1. Only Extraordinary, Compelling Circumstances Could
Preclude Access To Audiovisual Evidence Played In Open
Court. ............................................................................................ 16
2. Media Access To Audiovisual Evidence Is Critical To
Public Evaluation Of The Administration Of Justice. ................. 21
i

3. The Common-Law Right Of Access Applies To The
Exhibits At Issue Here. ................................................................ 22
B. The Evidence At Issue Falls Within The Qualified First
Amendment Right Of Access To Court Documents. ........................ 25
III. JUDICIAL DOCUMENTS TRANSFERRED TO THE
CUSTODY OF THE EXECUTIVE SHOULD BE SUBJECT TO
COURT RECORD ACCESS PRINCIPLES, NOT THE FOIA
EXEMPTION JURISPRUDENCE. .................................................... 29
CONCLUSION ........................................................................................ 35

ii

TABLE OF AUTHORITIES
CASES

Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) ............................. 23
Associated Press v. U.S. District Court,

705 F.2d 1143 (9th Cir. 1983) .............................................................. 28

Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir. 1981)............ 19
Commonwealth v. Upshur (In re WPXI, Inc.),

924 A.2d 642 (Penn. 2007) ................................................................... 10

Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999) ...................................... 30
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ........................... 11
Exum v. United States Olympic Comm.,

209 F.R.D. 20 (D. Colo. 2002) .............................................................. 16

Fla. Star v. B.J.F., 491 U.S. 524 (1989) .................................................. 15
FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404 (1st Cir. 1987) ......... 15
Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) .............. 33
Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982) ............. 26
Goldstein v. Forbes, 260 F.3d 183 (3d Cir. 2001) ..................................... 6
Hartford Courant v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) .................. 27
In re Application of Nat’l Broad. Co., 635 F.2d 945 (2d Cir. 1980) .. 18, 25
In re Application of Nat’l. Broadcasting Co.,

653 F.2d 609 (D.C. Cir. 1981) .............................................................. 15

In re Associated Press, 172 Fed. Appx. 1 (4th Cir. 2006) ................. 19, 21
In re Cont’l Ill. Sec. Litig, 732 F.2d 1302 (7th Cir. 1984) ....................... 14
iii

In re Herald Co., 734 F.2d 93 (2d Cir. 1984) .......................................... 27
In re NBC Universal, Inc., 426 F. Supp. 2d 49 (E.D.N.Y. 2006) ............ 22
In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002) ................. 25, 27
In re Search Warrant, 855 F.2d 569 (8th Cir. 1988) .............................. 27
Kamakana v. City & County of Honolulu,

447 F.3d 1172 (9th Cir. 2006) ........................................................ 15, 33

Larson v. Am. Family Mut. Ins. Co., No. 06-cv-1355,

2007 WL 1686747 (D. Colo. June 8, 2007) .......................................... 25

Larson v. Executive Office for U.S. Attys., No. 85-2575,

1988 WL 285732 (D.D.C. Nov. 22, 1988) ............................................. 11

Leucadia, Inc. v. Applied Extrusion Techs., Inc.,

998 F.2d 157 (3d Cir. 1993) ................................................................... 6

Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006) .............................. 6
Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007 .................... 16, 22, 23
Nixon v. Warner Comm., 435 U.S. 589 (1977)...................... 14, 16, 17, 24
Phoenix Newspapers, Inc. v. United States District Court,

156 F.3d 940 (9th Cir. 1998) ................................................................ 27

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ................ 26
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) .............. 25, 26
Public Citizen v. Liggett Group, Inc.,

858 F.2d 775 (1st Cir. 1988) .................................................................. 8

Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3rd Cir. 1984) ............. 14
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ............... 26
SEC v. Van Waeyenberghe, 990 F.2d 845 (5th Cir. 1993) ....................... 6
iv

Thomas v. Office of U.S. Attorney,

928 F. Supp. 245 (E.D.N.Y. 1996)........................................................ 11

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

489 U.S. 749 (1989) .............................................................................. 32

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) .............. 11, 31
United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) .............................. 6
United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) .......................... 15
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) .............................. 27
United States v. Beckham, 789 F.2d 401 (6th Cir. 1986)....................... 19
United States v. Biaggi (In re N.Y. Times Co.),

828 F.2d 110 (2d Cir. 1987) ................................................................. 27

United States v. Criden (In re Nat’l Broad. Co.),

648 F.2d 814 (3d Cir. 1981) ................................................................. 18

United States v. Edwards, 672 F.2d 1289 (7th Cir. 1982) ..................... 19
United States v. Fuentes, No. Cr. S-07-248,

2008 WL 2557949 (E.D. Cal. June 24, 2008) ........................................ 9

United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998). .................. 25
United States v. Graham, 257 F.3d 143 (2d Cir. 2001) ...................... 9, 29
United States v. Hickey, 767 F.2d 705 (10th Cir. 1985)............. 13, 16, 20
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980)...................... 13
United States v. Jenrette (In re Nat’l Broad. Co.),

653 F.2d 609 (D.C. Cir. 1981) .............................................................. 18

United States v. Ladd, 218 F.3d 701 (7th Cir. 2000) ............................. 19
United States v. Martin, 746 F.2d 964 (3d Cir. 1984) .............................. 6
v

United States v. McVeigh (In re Dallas Morning News),

119 F.3d 806 (10th Cir. 1997) ...................................................... passim

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) ........................ 8
United States v. Peters, 754 F.2d 753 (7th Cir. 1985) ....................... 6, 27
United States v. Sampson, 297 F. Supp. 2d 342 (D. Mass. 2003) ............ 7
United States v. Soussoudis (In re Washington Post Co.),

807 F.2d 383 (4th Cir. 1986) ................................................................ 27

United States v. Webbe, 791 F.2d 103 (8th Cir. 1986) ........................... 19
United States v. Wecht, 484 F.3d 194 (3d Cir. 2007) ............................... 6
Valley Broadcasting Co. v. U.S. District Ct.,

798 F.2d 1289 (9th Cir. 1986) ................................................................ 6

Zenith Radio Corp. v. Matsushita Elec. Indus. Co.,

529 F. Supp. 866 (C.D. Pa. 1981)........................................................... 7

STATUTE
5 U.S.C. § 551 ............................................................................................ 8
RULES
D.C.COLO.LCrR. 47 .................................................................... 12, 13, 33
D.C.COLO.LCrR. 55 ............................................................................ 7, 17
Fed. R. Civ. P. 26 ..................................................................................... 33
Fed. R. Civ. P. 34 ....................................................................................... 3
Fed. R. Civ. P. 5 ....................................................................................... 12
Fed. R. Crim. P. 49.1 ......................................................................... 12, 31

vi

OTHER AUTHORITIES
Mike McPhee, “Pair May Face Death In Prison Slaying,”
Denver Post, Jan. 27, 2001 .................................................................. 23
National Archives, “Frequently Asked Questions,” at
www.archives.gov/faqs ........................................................................... 8

United States Attorneys’ Manual § 3-13.250 ......................................... 10

vii

INTEREST OF AMICI CURIAE

Amici curiae respectfully submit this brief in support of appellant
Prison Legal News. Amici are news organizations, associations of news
professionals, and a civil rights advocacy group with longstanding
interests in the public availability of court records. Amici understand
that tools including, but not limited to, the Freedom of Information Act
are critical to public understanding of the affairs of the government.

Amici’s ability to serve their own functions in disseminating and
analyzing newsworthy information depends on the access of interested
members of the media and the public to court and other government
records. Pursuant to Fed. R. App. P. 29(a), both parties have consented
to the filing of this brief.
60 Minutes, a production of CBS News, a division of CBS
Broadcasting, Inc., is a weekly national television news magazine.
The Associated Press gathers and distributes news of local,
national and international importance to its member newspapers and
broadcast stations and to thousands of other customers in all media
formats across the United States and throughout the world.

Westword is a weekly newspaper published in Denver, Colorado,
the largest media market in the state. Westword has extensively
covered conditions and events at USP Florence.
With some 600 members, the American Society of News Editors
(formerly

the

American

Society

of

Newspaper Editors)

is

an

organization that includes directing editors of daily newspapers
throughout the Americas. ASNE is active in a number of areas of
interest to top editors with priorities on improving freedom of
information, diversity, readership and credibility of newspapers.
The Association of Capitol Reporters and Editors was founded in
1999 and currently has approximately 200 members. It is the only
national journalism organization for those who write about state
government and politics.
The Society of Professional Journalists is dedicated to improving
and protecting journalism. It is the nation’s largest and most broadbased journalism organization dedicated to encouraging the free
practice of journalism and stimulating high standards of ethical
behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free
flow of information vital to a well-informed citizenry; works to inspire
2

and educate the next generation of journalists; and protects First
Amendment guarantees of freedom of speech and press.
The American Civil Liberties Union of Colorado is a not-for-profit
public interest organization with 10,000 members. Since 1952 it has
worked to defend and protect the civil rights and liberties of all persons
in Colorado. The ACLU frequently relies on state and federal open
records laws, and it works to preserve and strengthen the right of the
press and the public to obtain information about the functioning of our
courts and our government.
SUMMARY OF THE ARGUMENT
This case concerns media access to audiovisual evidence that was
published to two juries in open court during federal capital trials. It
arises under the Freedom of Information Act (FOIA) only because
appellant Prison Legal News (PLN) sought copies of the trial exhibits in
question after they had been transferred from the clerk of court back to
the office of the United States Attorney prosecuting the matter. Had
copies of those documents1 remained in the court’s own file, the

1

Amici use the term “document” to encompass the full scope of

“documents or electronically stored information” defined in Fed. R. Civ.
P. 34(a)(1)(A).
3

Freedom of Information Act (FOIA) simply would not apply, and PLN
would have been able to exercise its common-law and First Amendment
rights to inspect and copy trial exhibits in the possession of the court.
Those rights of public access to court records, especially trial
exhibits, continue to apply, notwithstanding a change in the
government custodian of the records. Accordingly, application of any
exemptions to FOIA disclosure must take into account not only the
public and press’s interest in the underlying information, but also the
well-established public interest in transparent court proceedings. Any
other approach effectively allows the government to obtain a de facto
seal on the records without a public process, inverting what should be
the government’s burden to articulate a need for secrecy ex ante into a
media organization’s need to litigate under FOIA ex post.
Hence the district court erred in applying only a FOIA analysis
suitable to Executive Branch records, rather than a test comprehending
the documents’ status as judicial records. Applying the common-law and
First Amendment rights to court records, it is clear that the trial
exhibits at issue in this case would be subject to disclosure as non-

4

sealed court records if the clerk of court were the physical custodian.
They should, accordingly, be produced through PLN’s FOIA request.
ARGUMENT
I.

THE VIDEOTAPE AND PHOTOGRAPHS AT ISSUE BECAME
JUDICIAL DOCUMENTS WHEN THEY WERE PUBLISHED AS
TRIAL EVIDENCE WITHOUT BEING SEALED.
The trial exhibits requested by PLN became judicial documents

when they were published to the jury and played to the gallery in open
court. At no time before, during, or after the trial did the government
move to seal the exhibits or close the courtroom. Their return to the
prosecutor’s office did not somehow remove their status as judicial
records. Any public disclosure analysis—whether under the common
law, the First Amendment, or FOIA—should, therefore, proceed from
the premise that these are unsealed judicial records in the custody of a
government office.
A.

The Recording And Photographs Were, And Are, Judicial
Documents.

At both of the Sablan murder trials, the tape and photographs
sought by PLN were offered and admitted as exhibits. Aplt. App. at 1011, 13, 23, 24. They were, that is, “filed with the court, or otherwise
somehow incorporated or integrated into a district court’s adjudicatory
5

proceedings.” Goldstein v. Forbes, 260 F.3d 183, 192 (3d Cir. 2001); see

also United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“The
item filed must be relevant to the performance of the judicial function
and useful in the judicial process in order for it to be designated a
judicial document.”) Documents that are “used to determine litigants’
substantive legal rights” are the most readily subject to treatment as
court records for these purposes. See Lugosch v. Pyramid Co., 435 F.3d
110, 121 (2d Cir. 2006). Hence trial evidence is the prototypical example
of a judicial document. United States v. Martin, 746 F.2d 964, 968 (3d
Cir. 1984) (noting that “the common law right of access is not limited to

evidence, but rather encompasses all ‘judicial records and documents’”
(emphasis added)); see also, e.g., Valley Broadcasting Co. v. U.S.

District Ct., 798 F.2d 1289, 1294 (9th Cir. 1986) (analyzing tapes in
evidence as judicial records); United States v. Peters, 754 F.2d 753, 763
(7th Cir. 1985).2 Whether the evidence was entered in a bench or a jury

The category of judicial records is much broader than trial
evidence, and encompasses mere discovery documents attached to
discovery motions, Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998
F.2d 157 (3d Cir. 1993); potential Brady material submitted for in
camera review, United States v. Wecht, 484 F.3d 194, 209 (3d Cir.
2007); settlement agreements filed with the court, SEC v. Van
Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993); and indeed “all
6
2

trial is of no consequence to its status as a judicial record. See, e.g.,

United States v. Sampson, 297 F. Supp. 2d 342, 344 (D. Mass. 2003)
(audiovisual jury exhibits are “documents relied upon in judicial
proceedings”).
During the trials, the exhibits were apparently held in the custody
of the clerk of the district court. See D.C.COLO.LCrR. 55.1 (“Pleadings,
other papers, and exhibits in court files shall not be removed from the
clerk’s office or the court’s custody except by written court order.”
(emphasis added)). Following the completion of each trial, the Sablans’
trial courts returned the copies of the exhibits in question to the U.S.
Attorney, without any showing tantamount to a motion to seal. Aplt.
App. 90.3 Had the trial court not taken this step, the tape and
photographs in question would have physically remained a part of the
court’s file, where it would be axiomatic that while the presumption of
materials that are the subject of an evidentiary ruling by the court,
whether or not found admissible,” Zenith Radio Corp. v. Matsushita
Elec. Indus. Co., 529 F. Supp. 866, 899 (C.D. Pa. 1981); but cf. United
States v. McVeigh (In re Dallas Morning News), 119 F.3d 806, 813 (10th
Cir. 1997) (denying public access to exhibits deemed inadmissible).
3 Identically-worded form orders were entered at the close of each
Sablan prosecution providing that “counsel for the parties shall retain
custody of their respective exhibits” until after the expiration of all
appeals. See Order Regarding Custody of Exhibits and Depositions, No.
00-cr-531 (D. Colo. March 12, 2007 & May 20, 2008).
7

public access, discussed infra, applies, FOIA does not. 5 U.S.C.
§ 551(1)(B) (exempting “the courts of the United States” from the FOIA
definition of “agency”).
It is routine for federal judicial records to be transferred from the
custody of a court clerk to an Executive Branch agency better suited to
preserve and maintain the records. Federal court records are regularly
deposited in the National Archives’ regional records centers, while the
Supreme Court’s own older records are kept at the National Archives
Building in Washington, where they are open for public inspection. See
National

Archives,

“Frequently

Asked

Questions,”

at

www.archives.gov/faqs. The practice of returning criminal exhibits to
the U.S. Attorney also appears relatively widespread. See, e.g., United

States v. Novaton, 271 F.3d 968, 992 (11th Cir. 2001).
The mere fact that court records are stored in a non-judicial
federal facility does not imply that they cease to be court documents.

Amici are unaware of any case that has advanced that improbable
proposition. 4 And, indeed, at least one other Court of Appeals

Exhibits returned to private parties may be a different matter,
but that question is not presented here. See Public Citizen v. Liggett
Group, Inc., 858 F.2d 775, 781 (1st Cir. 1988) (noting that court has no
8
4

confronted with the precise factual situation at issue in this case readily
concluded that an exhibit played in court and then returned to the
federal prosecutor remained a judicial record. In United States v.

Graham, the Second Circuit rejected defendants’ argument that tapes
played at a pre-trial hearing were not judicial records because they
were not entered into evidence and “are not in the custody of the Clerk,
but rather in the hands of the prosecutor.” 257 F.3d 143, 152 n.5 (2d
Cir. 2001). The fact of custody was deemed irrelevant: “However, it is
common for the parties to retain custody of their own trial exhibits
and . . . the tapes became public by virtue of having been played in open
court.” Id. The Graham court treated any court “documents held by the
government” to be subject to the rules applicable to judicial records. Id.
Other cases, if less precisely on point, are to the same effect. Thus
the court in United States v. Fuentes, No. Cr. S-07-248, 2008 WL
2557949, at *3 (E.D. Cal. June 24, 2008), ordered prosecutors—and the
clerk of court—to produce certain “ministerial” grand jury records that
were “a matter of public record.” The Supreme Court of Pennsylvania
recently held that an audiotape played by prosecutors at a preliminary
power to prevent destruction of exhibits returned to parties once case is
closed and jurisdiction terminates).
9

hearing—but never admitted to evidence or physically placed in the
custody of the court—was nonetheless a judicial record subject to
reproduction for the public. Commonwealth v. Upshur (In re WPXI,

Inc.), 924 A.2d 642, 648-51 (Penn. 2007).
While FOIA actions against EOUSA are relatively common, amici
have been unable to locate a single case in which EOUSA has been
reported to claim a FOIA exemption against disclosure of a trial exhibit.
Indeed, EOUSA itself propounds policies to the U.S. attorneys making
clear that documentary evidence introduced at trial becomes a judicial
record:
Normally, United States Attorneys’ offices (USAOs) should not
have custody of evidence. . . . When evidence is required in court
the agencies handling the case, or other representative of the
investigating agency, should bring the evidence and retain custody
until the material is introduced as evidence, at which point it

becomes the responsibility of the United States Marshal, the
Clerk, and the Court.

United States Attorneys’ Manual § 3-13.250 (emphasis added). And, in
other cases, EOUSA has recognized that court records in its possession
are subject to broader disclosure obligations than other prosecutorial
records. See Thomas v. Office of U.S. Attorney, 928 F. Supp. 245, 247
(E.D.N.Y. 1996) (EOUSA advised a FOIA requester that “as a third
10

party requester, he would receive only public court records and news
clippings”); Larson v. Executive Office for U.S. Attys., No. 85-2575, 1988
WL 285732, at *1 n.3 (D.D.C. Nov. 22, 1988) (EOUSA willing to provide
“copies of public court records”). See also U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136 (1989) (ordering FOIA production of “publicly
available” court opinions in possession of Justice Department).
Common sense, and the case law on this question, are therefore in
accord: A judicial record does not lose that status when a court
transmits it to another arm of the government for archiving or
preservation. Any other rule would raise a serious question as to a
court’s power to restrict public access to records by so archiving them.
Consequently, the trial exhibits here retain their status as judicial
documents.
B.

The Judicial Records In Question Were Played In Open
Court Without An Application To Seal.

A motion to make a filing under seal is the only procedure by with
evidence published to a jury can be shielded from public view. See Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975) (“If there are
privacy interests to be protected in judicial proceedings, the States must
respond by means which avoid public documentation or other exposure
11

of private information.”). When a filing is made under seal, the
submitting party may be required to produce a redacted version for
public view; and in any event the sealing court “must retain [an]
unredacted copy as part of the record.” Fed. R. Civ. P. 5(d), (f); Fed. R.
Crim. P. 49.1(d), (f). In these and other ways, the practice of filing under
seal has extensive procedural safeguards to protect against over-use
and ensure that court proceedings are open to public inspection to the
greatest extent possible, most importantly, notice and the obligation
that the court make findings on the record. But no sealing procedure
was invoked here.
The local rules of the district court recognize the judge’s
“constitutional obligation to determine whether sealing a paper filed in
a case or closing all or a portion of a court proceeding is warranted.”
D.C.COLO.LCrR. 47.1(A). So weighty is the presumption in favor of
public access that
On the business day after the filing of a motion to seal or motion
to close court proceedings, a public notice will be posted in the
clerk’s office and on the court’s web site. The public notice will
advise of such motion and state that any person or entity may file
objections to the motion on or before the date set forth in such
public notice. . . .

12

D.C.COLO.LCrR. 47.E. Any submission not granted a seal “shall be
deemed part of the public record.” D.C.COLO.LCrR. 47.H.
The government did not utilize this procedure, either in the first
Sablan trial or—perhaps more surprisingly—in the second, which took
place after PLN’s FOIA request. Aplt. App. at 13, 24, 34. No privacy
interest was asserted by the government or by any party on behalf of
the Sablans’ victim or his family, and neither the public nor press was
put on notice that the exhibits shown in open court would not be
available for subsequent inspection.
II.

THE PRESS AND PUBLIC ENJOY A STRONG PRESUMPTIVE
RIGHT OF ACCESS TO UNSEALED JUDICIAL RECORDS
UNDER THE COMMON LAW AND THE CONSTITUTION.
The interest in open judicial process transcends the importance of

any particular document. The right of access to court records “is an
important aspect of the overriding concern with preserving the integrity
of the law enforcement and judicial processes.” United States v. Hickey,
767 F.2d 705, 708 (10th Cir. 1985); see also United States v. Hubbard,
650 F.2d 293 (D.C. Cir. 1980). Both the common law and the First
Amendment

protect

democratic

values

of

transparency

and

accountability in the judicial process by requiring courts to make
13

specific findings and follow particular procedures prior to limiting
access to judicial documents. Where, as here, none of those procedures
were invoked, the traditional rights of access are at their zenith. Setting
aside for the moment the complication that the judicial records are in
the custody of the prosecutor, it is clear that the press and public’s right
of access should apply to the exhibits in question.
A.

The Common Law Provides A Presumptive Right of Access
to Judicial Documents.

“It is clear that the courts of this country recognize a general right
to inspect and copy . . . judicial records and documents.” Nixon v.

Warner Comm., 435 U.S. 589, 597 (1977). This “general” or “common
law” right of access to judicial documents parallels the insistence on
public trials and similarly manifests the common law’s dedication to
transparency and accountability. See Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1068 (3rd Cir. 1984) (citing M. Hale, History of The

Common Law of England 163 (C. Gray ed. 1971)).
This historic right “allows the citizenry to monitor the functioning
of our courts, thereby ensuring quality, honesty and respect for our
legal system.” In re Cont’l Ill. Sec. Litig, 732 F.2d 1302, 1308 (7th Cir.
1984). To ensure “a measure of accountability” and promote “confidence
14

in the administration of justice,” the common law system identifies the
trial as a public event, rendering what transpires in the courtroom as
public property. United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.
1995); In re Application of Nat’l. Broadcasting Co., 653 F.2d 609, 614
(D.C. Cir. 1981) (citing Craig v. Harney, 331 U.S. 67, 374 (1947)).
Judicial documents are thus public documents “almost by definition,”
and the public is entitled to access them by default. Kamakana v. City

& County of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006); Fla. Star v.
B.J.F., 491 U.S. 524, 543 (1989) (White, J., dissenting) (“[J]udicial
records have always been considered public information in this
country.”).
“The

appropriateness

of

making

court

files

accessible

is

accentuated in cases where the government is a party: in such
circumstances, the public’s right to know what the executive branch is
about coalesces with the concomitant right of the citizenry to appraise
the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404,
410 (1st Cir. 1987).
This Court has repeatedly and consistently recognized “the axiom
that a common law right exists to inspect and copy judicial records.”
15

Hickey, 767 F.2d at 708; see also, e.g., Mann v. Boatright, 477 F.3d
1140, 1149 (10th Cir. 2007); United States v. McVeigh (In re Dallas

Morning News), 119 F.3d 806, 811-12 (10th Cir. 1997) (per curiam); see
also Exum v. United States Olympic Comm., 209 F.R.D. 201, 205 n.3 (D.
Colo. 2002) (“[T]he filing of a document with the court gives rise to a
presumptive right of public access.”) (citing Crystal Grower’s Corp. v.

Dobbins, 616 F.2d 458, 460-61 (10th Cir. 1980)).
1.

Only Extraordinary, Compelling Circumstances Could
Preclude Access To Audiovisual Evidence Played In
Open Court.

It has been established for some time that audio and video
recordings played in court are subject to the same principles of public
access as written matter. In the landmark case Nixon v. Warner

Communications, Inc., 435 U.S. 589, 599 (1978), the Supreme Court
applied the usual presumption of public access to the historic
audiotapes President Nixon recorded in his offices, which the
government had introduced as exhibits in the trials of some of the
Watergate

coconspirators.

While

Nixon

held

that

complete

transcriptions of the tapes, rather than copies of the recordings
themselves, were sufficient for public dissemination, no justice in Nixon
16

questioned that the content of the exhibits needed to be available for
republication outside the trial courtroom. See 435 U.S. at 600 (noting
dispute

concerned

only

“aural”

recordings,

not

contents

of

conversations). Nixon was complicated by the existence of a statute
arguably providing for the National Archives to take custody of the
tapes. For the majority, this “alternative means of public access tip[ped]
the scales” towards limiting disclosure to complete transcripts. 435 U.S.
at 605. Hence Nixon left open the standard for providing media
organizations with access to reproduce and, potentially, broadcast audio
and video information shown at trials of public interest.
The answer, as elaborated by the lower courts since Nixon, is that
the common-law presumption of access to court records applies with full
force to audiovisual recordings, to be displaced only in exceedingly rare
instances, especially when transcription of the material would be
inadequate. 5 In 1980, the Second Circuit held that “when physical

The District Court’s rules appear to recognize this explicitly. See
D.C.COLO.LCrR. 55.2 (providing that “[p]hotographic negatives [and]
tape recordings” in the clerk’s custody “shall not be available for
inspection by any person except while in the presence of and under the
control of the clerk. The clerk may limit or preclude access and copying
in order to preserve such evidence.”). The government has not asserted
17
5

evidence is in a form that permits inspection and copying without any
significant risk of impairing the integrity of the evidence or interfering
with the orderly conduct of the trial, only the most compelling

circumstances should prevent contemporaneous public access to it.” In
re Application of Nat’l Broad. Co., 635 F.2d 945, 952 (2d Cir. 1980)
(emphasis added). The Second Circuit reasoned:
Once . . . evidence has become known to the members of the
public . . . through their attendance at a public session of court, it
would take the most extraordinary circumstances to justify
restrictions on the opportunity of those not physically in
attendance at the courtroom to see and hear the evidence, when it
is in a form that readily permits sight and sound reproduction.

Id. (emphasis added).
Other Courts of Appeals soon adopted substantially the same rule.

United States v. Criden (In re Nat’l Broad. Co.), 648 F.2d 814 (3d Cir.
1981) (television network entitled to copy audio- and videotapes used in
political corruption trial, deeming the evidence to be judicial records);

United States v. Jenrette (In re Nat’l Broad. Co.), 653 F.2d 609 (D.C.
Cir. 1981) (district court abused discretion in denying reproduction of
audio- and videotapes played in “Abscam” criminal trial).

here that reproduction of the exhibits for PLN would cause any
degradation of the originals.
18

Other post-Nixon decisions acknowledged the force of the
presumption but allowed wider scope for the district court’s exercise of
discretion

than

does

the

Second

Circuit’s

most-compelling-

circumstances standard. See United States v. Webbe, 791 F.2d 103, 106
(8th Cir. 1986) (denying release of tapes where transcripts had already
been produced to media); United States v. Beckham, 789 F.2d 401, 414
(6th Cir. 1986) (common-law right encompasses taped evidence, but
approving withholding of “a duplicate of information already made
available to the public and the media”); United States v. Edwards, 672
F.2d 1289, 1294 (7th Cir. 1982) (allowing that strong presumption of
access may give way in light of “articulable facts known to the court,
not . . . unsupported hypothesis or conjecture” that release of tape could
affect the fairness of a trial); but see United States v. Ladd, 218 F.3d
701 (7th Cir. 2000) (granting press access to sealed hearsay statements
used as evidence at trial). 6 See also In re Associated Press, 172 Fed.
Appx. 1, 3-4 (4th Cir. 2006) (unpublished) (requiring same-day press
disclosure of all documents and tapes “fully published to the jury” in
Both Edwards and Belo Broadcasting Corp. v. Clark, 654 F.2d
423, 431 (5th Cir. 1981), withheld recordings based concerns that
release would impinge on the fairness of subsequent trials of related
defendants. That consideration is not present here.
19
6

Zacarias Moussaoui prosecution, including exhibits “declassified only
for the limited purpose of being discussed in court and shown to the jury
without unrestricted public access”).
While acknowledging the common-law right, the Tenth Circuit has
focused its analysis on courts’ power to seal records where the public
interest in disclosure “is outweighed by competing interests,” rather
than on the precise contours of public access to unsealed records. See

Hickey, 767 F.2d at 708. In McVeigh, 119 F.3d 806, this Court was
faced with media organization requests to unseal certain motions and
evidence in a trial of substantial public importance. The Court was able
to avoid determining the precise contours of the news media’s commonlaw right to electronic evidence played in open court in that case. But
its approach emphasized the difference between the withholding of
tapes in Nixon, “where transcripts of the tapes were [already] available
to the media and the public,” and a case, like this one, “where access to
[court] documents is an important factor in understanding the nature of
the proceedings themselves and when access to the documents is
supported both by experience and logic.” McVeigh, 119 F.3d at 812.

20

2.

Media Access To Audiovisual Evidence Is Critical To
Public Evaluation Of The Administration Of Justice.

In the decades since Nixon, audio and audiovisual evidence has
frequently played a critical role in criminal prosecutions. The fact that
this evidence can be reproduced and retransmitted has provided the
public with important insight into the administration of justice. As
courts regularly recognize, the news media play a critical role in
advancing the public’s access to court proceedings by obtaining,
reproducing, and retransmitting audiovisual evidence played in open
court. To note only two of the countless examples:
• In the trial of terrorism coconspirator Zacarias Moussauoi,
media organizations sought and obtained access to all
documents published to the jury “as soon as is practically
possible, but in no event later than 10:00 a.m. on the day
after the exhibit is published to the jury,” including
specially declassified materials. In re Associated Press, 172
Fed. Appx. at 4.
• In the prosecution of alleged Mafia figure John Gotti, Jr., the
news media sought and obtained full access to review
audiovisual evidence during the trial, and to duplicate it at
21

the close of trial. In re NBC Universal, Inc., 426 F. Supp. 2d
49, 58-59 (E.D.N.Y. 2006).

3.

The Common-Law Right Of Access Applies To The
Exhibits At Issue Here.

As this Court has approached the issue, the public’s interest in
reviewing court records is at least as strong as the public interest in
avoiding unnecessary sealing of those records in the first place. See,

e.g., McVeigh, 119 F.3d at 811. And, among all judicial records, the
lowest possible bar to disclosure must apply to exhibits already
disclosed in court, where any interest weighing against public
disclosure has already been substantially compromised, if not
eliminated entirely. But even if the ex ante sealing standard were the
appropriate one, these materials fall readily within the scope of the
common-law right of access.
In Mann v. Boatwright, 477 F.3d 1140 (10th Cir. 2007), this Court
held that one litigant’s privacy concerns related to an ongoing family
feud could not outweigh the presumption of public access to a civil
complaint and other documents. The Court was “not convinced . . . that
[litigant’s] privacy concern with respect to this information is
sufficiently critical to outweigh the strong presumption in favor of
22

public access to judicial records.” Id. at 1148 (citing James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993)). This was true, at least in part, because
the sensitivity of the material in a document does not render the
document any less relevant to a legitimate matter of public concern. See

Anderson v. Suiters, 499 F.3d 1228, 1236-37 (10th Cir. 2007). But it was
also true—in an irony that would appear to establish the point—
because “much of the information” at issue “appears to have been
disclosed previously in public probate court proceedings . . . .” Mann,
477 F.3d at 1149 (emphasis added).
As well explained in PLN’s brief, the records at issue here concern
two trials of substantial public interest. Both the underlying crime and
the ensuing trials were subject to substantial coverage in the news
media, much of which focused on how a high-security prison could have
allowed the murder in question to take place. See, e.g., Mike McPhee,
“Pair May Face Death In Prison Slaying,” Denver Post, Jan. 27, 2001,
at B-4. The case was the first in several years in which the federal
death penalty was sought in Colorado. Id. The public’s interest in both
the circumstances of the trial and the underlying conditions at a federal
facility were, therefore, at their zenith. Any cognizable privacy interest
23

is, conversely, highly attenuated—if not wholly vitiated—by the fact
that the materials have indeed already been displayed publicly, twice,
in an open courtroom.
Unlike Nixon, Webbe, or the Gotti case, it is not plausible to think
(and the district court here did not suggest) that transcription of the
tape could be an adequate substitute for its disclosure. Unlike audio
recordings of conversations among presidential aides, where only the
presence of a separate disclosure statute “tip[ped] the balance” to only
requiring transcripts (Nixon, 435 U.S. at 605), autopsy photos and a
video “taken at the scene with the perpetrators present and continuing

to act and comment” are not susceptible to a transcription that would
convey their complete contents. Aplt. Appx. at 11 (emphasis added).
To the extent that the district court questioned the relevance of
the exhibits to the examination of government activity (see Aplt. Appx.
at 113), it wholly failed to appreciate that the fact that the government

used the documents as trial evidence itself established their connection
to the government’s decision-making in charging the Sablans with
capital murder.

24

The district court therefore erred in failing to take cognizance of
the common-law right of access to these documents as court records, to
be overcome only by “extraordinary,” “most compelling” circumstances.

Application of Nat’l Broad. Co., 635 F.2d at 952.
B.

The Evidence At Issue Falls Within The Qualified First
Amendment Right Of Access To Court Documents.

Several courts have recognized a First Amendment right to view
certain court documents that is “even more stringent” than the
common-law right. In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir.
2002). This Court has remained agnostic on that question but has twice
assumed, without deciding, that there may be “a constitutional right of
access to court documents,” and that such a right would be governed by
the First Amendment standard for public access to criminal trials and
proceedings set forth in Press-Enterprise Co. v. Superior Court, 478
U.S. 1 (1986) (Press-Enterprise II). See McVeigh, 119 F.3d at 812;

United States v. Gonzales, 150 F.3d 1246, 1255-56 (10th Cir. 1998).7
The Court need not reach the constitutional issue here because both the
FOIA and common-law rights of access plainly apply. But were those

See also Larson v. Am. Family Mut. Ins. Co., No. 06-cv-1355,
2007 WL 1686747 (D. Colo. June 8, 2007) (applying Gonzales, 150 F.3d
7

at 1260, to video depositions).

25

grounds to prove inadequate, the standalone First Amendment right
would demand disclosure.
The Supreme Court has long recognized the First Amendment
dimension of public attendance at trials and other judicial proceedings.

See Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 604 (1982);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality
opinion). The familiar, two-pronged test for ascertaining the scope of the
right originated in Press-Enterprise Co. v. Superior Court, 464 U.S. 501
(1984) (Press-Enterprise I), and Press-Enterprise II. The “experience”
test examines whether the “place and process have historically been
open to the press and general public.” Press-Enterprise II, 478 U.S. at 9.
The “complementary” test for “logic” asks “whether public access plays a
significant positive role in the functioning of the particular process in
question” by, for example, “enhancing . . . the basic fairness of the
criminal trial and the appearance of fairness so essential to public
confidence in the system.” Press-Enterprise I, 464 U.S. at 508.
Following the Press-Enterprise cases, at least six circuits have
held that these First Amendment principles extend from attendance at
court hearings to related tangible records. See In re Providence Journal
26

Co., 293 F.3d 1 (1st Cir. 2002) (finding constitutional right of access to
“materials on which a court is meant to rely in determining the parties’
substantive rights” in a criminal case); Hartford Courant v. Pellegrino,
380 F.3d 83, 91-96 (2d Cir. 2004) (court dockets); United States v.

Biaggi (In re N.Y. Times Co.), 828 F.2d 110, 114 (2d Cir. 1987) (“written
documents submitted in connection with judicial proceedings that
themselves implicate the right of access” and exhibits at a suppression
hearing); In re Herald Co., 734 F.2d 93, 101 (2d Cir. 1984) (exhibits
used at a suppression hearing); United States v. Antar, 38 F.3d 1348,
1359-60 (3d Cir. 1994) (transcripts of voir dire); United States v.

Soussoudis (In re Washington Post Co.), 807 F.2d 383, 390 (4th Cir.
1986) (documents filed as part of plea and sentencing hearings); In re

Search Warrant, 855 F.2d 569, 573 (8th Cir. 1988) (affidavit filed in
support of search warrant); Phoenix Newspapers, Inc. v. United States

District Court, 156 F.3d 940, 948 (9th Cir. 1998) (transcripts of closed
criminal proceedings once need for closure ceases); see also Peters, 754
F.2d at 763 (common-law right of access to trial exhibits is “of
constitutional magnitude through the first amendment”); Associated

Press v. U.S. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (pre27

Press-Enterprise constitutional right of access to documents related to
pretrial proceedings).
The Press-Enterprise test carries over readily to trial exhibits that
were in fact played to a jury and public gallery. Like the documents in

In re Herald Co., the materials at issue here were offered as substantive
evidence. Like the documents in Phoenix Newspapers, any potential for
prejudice to ongoing or future judicial proceedings has dissipated. The
public criminal trial is the sine qua non of a judicial event that satisfies
both the “history” and “logic” prongs of Press-Enterprise I and II.
Moreover, the careful weighing of interests and traditions
required by the Press-Enterprise framework would be irrelevant in
many cases if the government were to proceed routinely as it did here,
failing to file a properly noticed motion to seal when the documents
were first submitted to the Court and then asserting FOIA protection
once the documents returned to its custody. Vindication of the public’s
First Amendment interest requires the prior assertion of a government
interest in secrecy or privacy, rather than post hoc assertions once the
documents have been “clawed back” to government control. The
“appearance of fairness” so important to the Press-Enterprise approach
28

demands fair ex ante, not ex post, procedures, of the sort the district
court would have imposed under Fed. R. Crim. P. 49.1 and its local
rules had a motion to seal actually been filed.
III.

JUDICIAL DOCUMENTS TRANSFERRED TO THE CUSTODY
OF THE EXECUTIVE SHOULD BE SUBJECT TO COURT
RECORD ACCESS PRINCIPLES, NOT THE FOIA EXEMPTION
JURISPRUDENCE.
The common-law and constitutional rights of access to court

records would be substantially eroded, if not eviscerated, if transfer of
physical custody of the court records to another arm of government
wholly defeated the right. Any former court document now held by some
branch of the government—whether it be the Administrative Office of
the U.S. Courts, the National Archives and Records Administration, or
the Department of Justice—must therefore remains subject to the
principles of public access to judicial records. See Graham, 257 F.3d at
152 n.5. FOIA, rather than petition to the court or its clerk, may be the
preferred statutory right of action for obtaining records from FOIAgoverned agencies, but the underlying interest remains an interest in
judicial records. When the item requested under FOIA is a judicial
record held by an executive custodian, any application of FOIA’s

29

statutory exemptions to disclosure must be restricted to the more
limited grounds for refusing disclosure of court records.
This point substantially overlaps with PLN’s forceful argument
that by virtue of their publication to the jury in open court, the exhibits
at issue here fall within the well-established “public domain” doctrine
compelling production through FOIA. See Plf.-Aplt.’s Br. at 16-26. That
these documents are in the public domain for FOIA purposes is clear; as
the D.C. Circuit has explained,
until destroyed or placed under seal, tapes played in open court
and admitted into evidence—no less than the court reporter's
transcript, the parties’ briefs, and the judge's orders and
opinions—remain a part of the public domain.

Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999).
To the extent, however, that the public-domain determination is
not coextensive with the determination of what constitutes a judicial
record, this Court should recognize that it is the status of these
materials as judicial records that compels their disclosure. The fact that
FOIA provides one procedure for accessing and compelling production of
the documents cannot create in the Executive Branch a new substantive
right to withhold judicial materials that a court could not itself withhold
if it retained possession. Any other rule would allow the government to
30

effectuate a de facto judicial seal without the process and judicial
involvement that a proper motion to seal necessarily involves. And, as
argued supra, the non-FOIA balancing test for disclosure of the exhibits
as unsealed trial exhibits wholly supports their disclosure now.
Had the exhibits been sealed, the Federal Rules would appear to
have required the court to maintain a copy of them. See Fed. R. Crim. P.
49.1(f). It would invert the logic of sealing and FOIA to make unsealed
records in the hands of the prosecutor harder to obtain than sealed
records that remained with the court.

Tax Analysts is entirely compatible with this principle, though it
differs from the instant case in a key factual detail. That case concerned
an organization’s efforts to obtain through FOIA an Executive Branch
agency’s compendium of publicly-available court opinions. 492 U.S. at
140-41; see also id. at 156 (Blackmun, J., dissenting) (“There is no
question that the material is available elsewhere.”). The government
had argued that FOIA was not applicable because, inter alia, the
documents were not “agency records” under FOIA. Id. at 146. The Court
disagreed, holding that the court opinions fell squarely within FOIA’s
mandate. Id. at 155. Here, there has been no suggestion that the copies
31

of the exhibits in question are not FOIA “agency records,” nor that they
could be obtained from any other source. Tax Analysts only supports the
conclusion that unique copies of judicial records held by the executive
must be produced under FOIA under the open-access principles that
always apply to judicial records.
To the extent—if any—that FOIA exemptions 6 or 7(C) are even
cognizable with regard to court records in the hands of a FOIA agency,
the public interest in court records qua court records must weigh
heavily on the scale in favor of disclosure. See U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). That
is, while the exemptions require a balancing of public interests in
disclosure and a private interest in privacy, the public interest in
disclosure

encompasses

not

only

FOIA’s

own

policy

favoring

transparent agency action, but the even more longstanding common-law
and constitutional interest in open judicial administration. The public
interest in both agency records and judicial documents plainly
outweighs general assertions of third-party privacy that were never
articulated before the documents were published in open court.

32

Any other approach would allow the government to obtain a de

facto seal without meeting the sealing burden. If it had sought to seal
these records before introduction at trial, the government would have
been required to establish “compelling reasons” by reference to specific
facts, Kamakana, 447 F.3d at 1178, 8 and news organizations would
have received actual public notice and an opportunity to intervene and
raise competing concerns of openness, D.C.COLO.LCrR. 47.E.
The court below required PLN to establish a prevailing public
interest, rather than requiring the government to carry the burden it
would have in a motion to seal. See Aplt. Appx. at 111. That cannot be
right. The public’s presumptive, per se interest in open public records
must be taken into account in the first instance, and the onus of
defeating the public interest must remain on the government, as it
would in any proceeding seeking a judicial seal. The government has
made, and can make, no such showing here with respect to documents
that have already been shown in open court.
Even the standard for sealing in a civil matter is “good cause,”
Fed. R. Civ. P. 26(c), requiring a specific demonstration by the movant
“that disclosure will cause a clearly defined and serious injury. Broad
allegations of harm, unsubstantiated by specific examples . . . will not
suffice.” Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.
1995).
33
8

34

CONCLUSION
The judgment of the district court should be reversed insofar as it
upheld EOUSA’s withholding certain portions of the requested
materials. The requested materials should be ordered disclosed to PLN
in their entirety. 9

DATED: March 8, 2010

Respectfully submitted,
/s/Mark G. Walta
Mark G. Walta*
Walta, Gehring, Harms & Dingle LLC
1912 Logan St.
Denver, CO 80203
(303) 953-5999

mwalta@wghd-law.com
*Counsel of Record

Scott L. Shuchart
Jerome N. Frank Legal Services
Organization
Yale Law School
127 Wall St.
New Haven, CT 06511
(203) 432-4800

scott.shuchart@yale.edu

Counsel for Amici Curiae

PLN has acceded to obscuring certain portions of the videotape.
See Pl.-Appt.’s Br. at 15 n.1. Amici take no position on that issue.
35
9

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because this brief contains 6,910 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2008 in 14-point Century Schoolbook.
Dated: March 8, 2010

/s/ Mark G. Walta
Mark G. Walta
Walta, Gehring, Harms & Dingle LLC

CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
1)

all required privacy redactions have been made;

2)
if required to file additional hard copies, that the ECF
submission is an exact copy of those documents;
3)
The digital submissions have been scanned for viruses
with the most recent version of a commercial virus scanning
program, Trend Micro PC-Cillin 2007, and according to the
program are free of viruses.
I certify that the information on this form is true and correct to the
best of my knowledge and belief formed after a reasonable inquiry.
/s/ Mark G. Walta
Mark G. Walta
Walta, Gehring, Harms & Dingle LLC

CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of March, 2010, a true and
correct copy of the foregoing Amici Curiae Brief on Behalf of Appellant
Prison Legal News was served via the ECF system to counsel for
Plaintiff-Appellant and Defendant-Appellee, as indicated below.
Gail K. Johnson
Johnson & Brennan, PLLC
1401 Walnut St., Suite 2001
Boulder, CO 80302

gjohnson@johnson-brennan.com
Michael C. Johnson
Assistant U.S. Attorney
Office of the U.S. Attorney
1225 17th St. #700
Denver, CO 80202

michael.johnson2@usdoj.gov
William G. Pharo
Assistant U.S. Attorney
Office of the U.S. Attorney
1225 17th St. #700
Denver, CO 80202

william.pharo@usdoj.gov

/s/ Mark G. Walta
Mark G. Walta
Walta, Gehring, Harms & Dingle LLC