JAMES F. McKAY III, Judge.Page 1
Based on the record before this Court and for the following reasons we affirm the judgment of the trial court.
STATEMENT OF THE CASE
The defendant Ray A. Boudreaux was charged by bill of information on February 21, 2008, with five counts of attempted second degree murder, violations of La.R.S. 14:30.1. The defendant pleaded not guilty at his March 14, 2008 arraignment. The trial court denied the defendant's motions to suppress the evidence, the statement and identification on April 23, 2008. On June 22, 2008, at the conclusion of a four-day trial by a twelve-person jury, the defendant was found guilty of aggravated battery as to Count One, guilty of attempted manslaughter as to Counts Two, Three and Four, and not guilty as to Count Five. The trial court denied the defendant's motions for new trial and post verdict judgment of acquittal on July 23, 2008. On July 25, 2008, the trial court sentenced the defendant to two years at hard labor on Count One, five years at hard labor on Count Two, three years at hard labor on Count Three, and ten years at hard labor on Count Four, with all sentences to run concurrently. The defendant filed a motion for appeal on the day of sentencing, which was granted.
STATEMENT OF FACTS
New Orleans Police Department Detective Jason Giroir testified that on September 16, 2007, he participated in an investigation of a stabbing in the 200 block of Bourbon Street, outside of the club Utopia. Several days later after interviewing an employee of the Deja vu Bar, James Kesler, who provided the detective with a video surveillance tape of the event, Detective Giroir developed the defendant, Ray Boudreaux, as a suspect in the September 16 stabbings. The defendant was positively identified in photographic lineups by two of the persons stabbed, Larry Brooks and Carlton Williams, and by a witness, Tyereaun Henry. Detective Giroir participated in the arrest of the defendant and a search of his apartment. After being advised of his Miranda rights, the defendant stated that he was sorry. The defendant repeated that sentiment to the media as he was being taken into New Orleans Central Lockup.
Officers from the Jefferson Parish Sheriff's Office during a search of the defendant's apartment found a large silver and black pocket knife and logged it into NOPD Central Evidence and Property Facility. During his testimony, Detective Kesler identified this knife.
On cross examination, Detective Giroir stated that during his investigation he learned that another person, never identified, who was a friend of the defendant, possibly had a knife. That individual was described as a black male, approximately five feet six inches tall, weighing one hundred and sixty-five pounds, wearing dark pants and no shirt. Detective Giroir's police report noted that another witness, Sharon Rome, had seen a black male, with a blue shirt, stab a female who worked at Utopia, either inside a club or near the club.
James Kesler testified that he installed video cameras for Deja Vu nationally. He was called to the Deja Vu bar on Bourbon Street to record onto a CD, and back up, video surveillance footage captured by at least one of two video cameras mounted outside the bar. Kesler identified a CD that he burned.
Jefferson Parish Sheriff's Office Detective Sergeant Darren Monie testified that on September 21, 2007, in the company of two New Orleans detectives, he obtained written consent from the defendant to search the defendant's apartment, which was located in Jefferson Parish. This was done after he read the defendant his Miranda rights. Detective Sergeant Monie lifted a blanket covering what he believed was a sofa table, to discover it was a box for a thirty-two inch television. He uncovered the box, turned it over, rummaged through the packing material inside, and discovered a knife. Detective Sergeant Monie identified photographs of the defendant's apartment. He also identified the defendant's signed written acknowledgement on the back of the consent-to-search form, stating that one large black and silver folding pocket knife with a pocket clip and half-serrated blade was removed from the apartment. Detective Sergeant Monie again advised the defendant of his Miranda rights, and asked the defendant if the knife was the one he used in the stabbing. The defendant had initially said that he had lost the knife he had used and had thrown the bloody clothing in a dumpster or somewhere at Tulane University. The defendant again denied that it was the knife he had used. Detective Sergeant Monie told him they were going to test the knife for blood, and that if it came back positive it would have a negative effect on him. At that time the defendant admitted it was the knife that he had used. Detective Sergeant Monie identified the knife in court.
Detective Sergeant Monie confirmed on cross examination that once he encountered the defendant, that the defendant was cooperative and did not ask for an attorney. He confirmed that he was in charge of the scene and directed the crime lab as to what evidence it should collect. He did not take a formal statement from the defendant because it was not his case. He stated that the defendant was upset when he confronted him about the knife.
New Orleans Police Department Crime Lab Officer Tonesha Santemore performed a HemaTrace test on swabs that had already been taken from the knife recovered in the defendant's apartment. The tests were negative for the presence of human blood. She noted that upon opening the envelope containing the swabs they appeared to be putrefied, possibly from not being stored correctly and that in such a case tests could come up negative. Officer Santemore confirmed on cross examination that one possibility was that there never was any human blood on the knife. She testified on cross examination that she had tested five-year old evidence with the HemaTrace test that had come back positive for the presence of human blood.
Larry Brooks, a victim in this matter, testified that he had been convicted of simple burglary, first offense carrying of a concealed weapon, first offense possession of marijuana, and battery on a police officer. On the morning of September 16, 2007, he got off work a little after midnight from his job shucking oysters at the Bourbon House. He and his fiancee, Tyereaun Henry, and another couple went out on Bourbon Street. While at Utopia he went to use the restroom. When he came out he saw Henry pushing off some guy, telling him she was married. Brooks came up and told the man she was married to him. Brooks said he and the guy, who was with three other guys, one of them being the defendant, shook hands, and the others walked off. Brooks subsequently noticed them standing and observing him and Henry. Brooks did not know any of the men. He told Henry he wanted to leave. As Brooks was leaving he saw his friend, Dudley Gaines, "fussing" with one of the guys who was with the defendant. A fight broke out between Gaines and the other man. Brooks said he ducked, almost getting hit. Brooks testified that he began swinging to protect himself from the defendant and a male wearing a black shirt. Brooks said at this point all he saw was a red shirt and a black shirt.
Brooks testified that the defendant and his friend turned around to leave and began to walk away when he heard the defendant saying "F" that, "F" that. Brooks also heard a female say that the defendant had a knife. Brooks turned around to face the defendant but stumbled off the side-walk and fell on his back. He said a male with a dark shirt stood over him and started swinging but that somebody shoved that guy out of the way. Brooks then noticed a male in an orange or red shirt, whom he identified as the defendant, start swinging at him however; the defendant was pulled off of Brooks by someone. Brooks said when he stood up he notice that he was bleeding from his arm.
Brooks denied having any weapons with him that night. He said the only weapon he carried daily was his oyster shucking knife, and that stayed at home or at work. He did not have it that night. He had no weapons of any kind. Brooks said he suffered seven stab wounds, including one to his chest, one to his side, one to his arm, and three to his back. He displayed the scars from those wounds to the jury. He was in the hospital for approximately two weeks. He identified the defendant in a photographic lineup while still in the hospital.
Brooks was questioned as the CD containing the video surveillance film of the incident was played for the jury. At the conclusion of his direct testimony he identified the defendant in court as the person who stabbed him. Asked whether he was sure the defendant was the stabber, Brooks replied that he could not be any surer than he was. Brooks confirmed on cross examination that he knew the owner of Utopia, the bouncers, the bartenders, and the shot girls.
The State called Dr. John Hunt, a University Hospital trauma surgeon, who testified that he treated Keith Townsend, another victim of the brawl, for approximately ten stab wounds. Townsend was in critical condition from the stab wounds, as well as from bludgeoning and beating. He had an injury to the right upper lobe of his lung and a severe amount of hemorrhage within the chest cavity. That stab wound was probably five or six inches deep. The right upper lobe of his lung, approximately a third of his right lung, was surgically removed. Townsend had an ongoing source of bleeding finally identified as an injury to the maxillary artery that goes into the maxillary sinus caused by a stab wound that penetrated bone. Townsend had multiple cerebral contusions, which are consistent with blunt force injury to the head. Townsend sustained brain damage, a result of the blunt force injury, and most likely anoxic brain injury, meaning that when his blood pressure was low due to hemorrhagic shock his brain did not receive enough oxygen to sustain it.
When asked on cross examination whether the blunt force trauma suffered by Townsend could have been caused by falling to the ground, Dr. Hunt replied that it certainly could be, but that the fact that he had more than one contusion suggested that he was struck. Defense counsel followed up by asking if he meant struck by some type of object to the head, and Dr. Hunt replied in the affirmative.
Keith Townsend testified that he remembered he was on Bourbon Street with some friends on September 16, 2007, naming only "Rocky." He remembered being stabbed, but not who stabbed him. He did not know how long he was in the hospital. He displayed his scars from the stabbing to the jury.
Dudley Gaines, previously convicted of a felony, carnal knowledge of a juvenile, testified that on the night of September 16, 2007, he went to Chris Owens' club by himself. Gaines, also known as "G-Nike," later met Damion "Rocky" Wise, Carlton "Big Baby" Williams, Keith "Twin" Townsend, Dolesha and Larry Brooks on the street. He went to Utopia with Wise, Brooks, Williams and Townsend. He did not have anything to drink at Utopia. He was on the dance floor. He decided to leave and made his way to the door. When he got outside he started arguing with a guy who had been bothering (touching) a female named "Delissa." Delissa had complained about the guy to Gaines. He fought with the male, who was wearing a black shirt, but they stopped and each went their separate ways. Wise, Larry, Williams and Townsend were outside already, and Gaines said they were fighting, he guessed, with the black-shirted male's partners. Gaines said he remained in front of Utpoia, but did not see what happened after that. He was talking; someone told him to turn around; and when he did he saw Williams, Townsend and Delissa on the ground bleeding. Gaines said he did see not Larry Brooks get stabbed. Gaines did not have any weapons that night and did not pick up any weapons that night. He fought only with the male in the black shirt.
Gaines was asked on cross examination if Larry Brooks had any weapons on him, and Gaines replied in the negative. He said they were just fist fighting.
Damon "Rocky" Wise testified that he had previously been convicted of a felony, distribution of marijuana, and two misdemeanors, theft and resisting arrest. On the night of September 16, 2007, he was with Carlton "Big Baby" Williams. He went to Chris Owens' club first, but did not have any alcoholic beverages. He then went to Utopia, where he had one alcoholic drink. He went outside and got into a fight that was going on. He said the only person he hit was the defendant who stabbed him in the arm, although, he did not see what the defendant stabbed him with. He did not remember what the defendant was wearing that night but remembered the defendant's face. Wise replied in the negative when asked whether he had any weapons on him that night.
Carlton "Big Baby" Williams was working as a security guard at a French Quarter club, the Jazz Emporium, on the night of the incident. He was with Damion "Rocky" Wise, his uncle. He thought they probably went to the Jazz Emporium that night, had a drink and a beer, and then went to Chris Owens' club. They later met Keith Townsend outside of Utopia. They went into Utopia. Before he could get to the bar, he heard a commotion outside. He turned to see some guy fighting with Delissa, a shot girl who was employed by Utopia at the time. Delissa and the guy were across the street near Deja Vu. The guy was putting his hands on Delissa, so Williams interceded and began fighting with the guy. He did not recall what the guy was wearing. He had never seen the guy before. Williams did not notice Wise, Brooks or Townsend around while he was fighting. At one point he felt something in the back of his head, and he turned to see the defendant. Williams said he started swinging in that direction, fighting the defendant. Williams had no weapons. He was fighting the defendant when the defendant hit him under his arm. He said it felt like someone had kicked him, and he could not breathe. He started to go down, and then Wise came and hit the defendant. Williams did not see a knife in the defendant's hands. Williams did not see what was happening to Town-send, Brooks or Wise. Williams said he was stabbed ten times and was in the hospital for a week to a week and a couple of days. Williams identified the defendant in a photo lineup presented to him by a police officer while he was in the hospital. Asked if he was sure the defendant was the person who stabbed him, Williams said: "I'm pretty sure."
Tyereaun Henry testified that on September 16, 2007, when her fiance Larry Brooks left her for a while, a male approached and tried to ask for her telephone number. Henry told the guy she had a "fiance or whatever" the first time he approached. She said he pushed him-self on her, so she had to push him off. Brooks told the individual that Henry was his wife. She said the second time the guy hit on her another individual told her that it was cool, that the guy was just drunk. Brooks and the guy who hit on Henry shook hands, and the matter seemed resolved. However, the guy and his companions stood some five feet away, looked at them and made gestures. So she wanted to leave. When they got outside Utopia, the same guy who had hit on her was bothering Delissa, causing him and Dudley Gaines to argue and fight. Another guy came in and tried to hit Brooks, and Brooks started fighting with that individual.
She testified that the defendant had turned to leave but came back saving "`F' that," "`F' that," and he pulled a knife out of his pocket. She testified that she saw the knife in the defendant's hand. She then told Brooks to come on because the defendant had a knife. But, as Brooks was backing up he tripped over some trash and fell on his back, still fighting with the same individual. The defendant came and pushed the guy aside and started stabbing Brooks, as Brooks fought back. The defendant left, and Brooks got up but then fell back down.
Henry testified that she was shown a photo lineup by a police officer when she was in the hospital with Brooks. She identified the defendant in the lineup and identified him in court. Henry answered questions as the CD surveillance video was played. She identified the defendant as wearing the red shirt. She was wearing a black shirt and blue skirt in the video.
Ferd Edgar testified that he worked as a security guard at Utopia on September 16, 2007, until probably five or six o'clock in the morning. He was assigned to the front door and could not leave that position. Edgar stated that not everyone coming into the club got searched, only certain people, giving an example of someone wearing a big coat when it is hot outside. Edgar saw a fight break out that night. He said it started between Delissa Ford, a shot girl, and a guy. He said the guy was with the defendant, and the guy was kind of drunk. He bumped Delissa by the front door, and they had a couple of words. Edgar said he told the guy to calm down a little bit, and the defendant also was trying to calm the guy down. The guy pushed the defendant out of the way and walked outside. Dudley "G-Nike" Gaines was already outside, talking to Delissa. Edgar knew Gaines and "Big Baby" Williams from working in French Quarter clubs. Edgar knew "Rocky" Wise because Wise used to work at Utopia. When the guy came outside, he and Gaines fought. Edgar said after that other people joined in the fight, including the defendant. He said the defendant jumped in and then the defendant pulled out a knife. Edgar saw the defendant stab Williams in the head. Edgar recalled that Wise jumped in, and the defendant turned toward Wise. Delissa hit the defendant with a bottle, and he turned and stabbed her. Keith "Twin" Townsend came into the fight. The defendant stabbed Townsend while Townsend was on the ground, on his back. Edgar saw Larry Brooks get stabbed. Edgar said that after the defendant stabbed Townsend he backed off, walking backwards.
Edgar testified that the guy who started the fight was fighting with Brooks. Brooks tripped on the curb, and the defendant came back and stabbed Brooks while he was on the ground. The fight ended after Brooks got stabbed, and the defendant and the two guys he was with ran off towards Canal Street. Edgar identified the defendant in court. Asked how sure he was that the defendant was the person who stabbed all the victims, Edgar replied that he was "real sure."
Timothy Rockette, the defendant's older brother, was with his little brother, Jelani Smith, and the defendant on the night of September 16, 2007. They went to a foot-ball game and met the defendant's roommate and teammate, Ade, at Utopia after the game. They also ran into their cousin, Robert, at Utopia. Rockette said Robert was a little tipsy and was not acting like himself. They were trying to talk to girls, and when Robert touched one girl on her arm, she kind of shrugged her arm away. Her boyfriend, whom he later learned was Larry Brooks, came up and started "fussing" with Robert. Rockette said that after that he, the defendant, Smith and Robert thought something bad was going to happen, because Brooks started talking to four or five of his friends in the club. Rockette said that as Brooks talked to his friends he was staring at them, cursing at them, and giving them mean looks. They decided it was time to leave.
Rockette went to the bathroom. When he came out, there were fifteen or twenty people outside, although he did not know if they were together. Rockette said that when they got outside the people were cursing at them, giving them mean looks, calling them "MF's, B's, you know, we are going to kill you,. . . ." Rockette said he was scared. He, his cousin Robert, and the defendant were at the front door. Carlton "Big Baby" Williams walked up to Robert and said "watch your back, B." After Williams said that, he hit Robert twice, knocking him out. He said Robert was on the ground in front of Utopia getting stomped on by Williams and at least three other people. Rockette said he was saying that they did not have to fight, that they just wanted to go home, and he said the defendant was saying the same thing. He was trying to grab Williams and get him off of Robert, when Larry Brooks jumped on his back. He said two or three other guys jumped on him at that time. Rockette looked for the defendant and saw him in the middle of the street fighting with four or five guys. His brother, Jelani, who had tried to grab Brooks off Rockette, was against a wall fighting off people. He saw a girl crack a bottle against the defendant's head.
Rockette said he, Jelani and the defendant were backing down Bourbon Street toward Canal Street, trying to get to their vehicle parked across Canal Street. Rockette said he did not have a shirt on at that time; it had been pulled off him during fighting. He had been wearing a gray Polo shirt. He said Larry Brooks was still coming towards them. Brooks was saying that they did not know who he was and that he would kill them. Rockette said Brooks' eyes were "bugged out" real wide. He said Brooks hit him five times, and that each time Rockette would stick out his hands and say: "[W]e don't want to do this." They realized their cousin Robert was not with them and started walking back to Utopia to get him, Rockette said the CD video surveillance footage showed him and the defendant walking back to get Robert. He said Brooks was there, still cursing and making threats. Brooks kicked the defendant in the chest. Rockette said at that point he rushed Brooks and started fighting him. Brooks ended up on a pile of trash. Rockettte confirmed that the video showed him on top of Brooks. He said they were fighting eaclosed by our decision in In re Newsday, Inc., 895 F.2d 74
In light of this settled authority in this Circuit, Appellants' arguments relying on out-of-circuit case law and Office of Legal Counsel opinions that allegedly found that Title III prohibits what it does not permit are inapposite. See, e.g., United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982) ("Title III implies that what is not permitted is forbidden.").
In Neivsday, a newspaper sought access to a search warrant application containing wiretap communications that had been sealed by the district court at the request of the government. Id. at 75. Following a guilty plea by the subject of the wiretap, the government withdrew its earlier objection to unsealing the application, and the district court released a redacted copy of the warrant materials. Id. The subject of the wiretap appealed, making essentially the same argument that Appellants make in the instant case: that Title III forbade such public disclosure of wiretap information, because the disclosure provisions of Title III are the "exclusive means by which intercepted communications may be released to the public." Id. at 77.
We held that Title III did not specifically address the issue of a right of "public access to intercepted communications when those communications become part of a public document [such as the warrant affidavit at issue] after having been used by the government in the course of its law enforcement activities." Id. at 76. Rejecting the appellant's reliance on the Seventh Circuit's decision in United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982) ("Title III implies that what is not permitted is forbidden"), we agreed that Title III "generates no right of [public] access," but found it "a non-sequitur to conclude the obverse: that Congress intended in § 2517, which relates solely to use in law-enforcement activities and judicial proceedings, to forbid public access by any other means on any other occasion." Newsday, 895 F.2d at 77. We noted that "nowhere does Title III state rules regarding disclosure of intercepted communications to the public incident to, or after, their use under § 2517. . . . No doubt the framers of Title III expected that the main channel of public disclosure of intercepted communications would be testimonial, but they did not so confine it." Id. at 78.
In Newsday, we ruled that there was a common law right of access to the judicial documents at issue, but that the right of access needed to be balanced against the privacy rights at issue, i.e., "the privacy rights of the person whose intimate relations may . . . be disclosed." Id. at 79. We then concluded that the district court had not abused its discretion in ordering the release of a redacted affidavit. Id. at 80; see also id. at 75 ("[W]e hold that the district court properly balanced the common law right of access to judicial records with the defendant's privacy rights, and affirm its release of a redacted copy of the warrant application.").
In short, in Newsday, we held that Title III does not prohibit all disclosures of legally intercepted wire communications that it does not expressly permit, and that in determining whether a right of access should lead to disclosure of Title III materials, the right of access should be weighed against the relevant privacy interests at stake. The district court should have applied that analysis in the instant case.
Appellants argue that Neivsday is distinguishable, because it involved a disclosure of wiretap materials that had already been filed as part of a "public document." Although the specific context of Newsday was the right of public access to judicial documents, the case necessarily reflects a broader principle, of which its narrow holding is simply one example. Here, just as in Newsday, the SEC's discovery request asked for disclosure of Title III materials "incident to, or after," their use under § 2517. Cf. id. at 78 ("[N]owhere does Title III state rules regarding disclosure of intercepted communications to the public incident to, or after, their use under § 2517." (emphasis added)). In Neivsday, the government had already properly disclosed the material pursuant to § 2517(2) in seeking a search warrant; here, the USAO disclosed the wiretap materials as part of the criminal discovery process, also pursuant to the "proper performance of [its] official duties" under 18 U.S.C. § 2517(2). Newsday sought wiretap materials that had already been disclosed pursuant to § 2517 by invoking its independent right of access to judicial documents; the SEC here similarly seeks such material, also already legitimately disclosed to Appellants pursuant to § 2517, by invoking its independent right to discovery in civil litigation. Just as in Newsday, Title III does not expressly address the right claimed here. The issue, therefore, is whether there is an independent right of access to the materials that might permit further disclosure, and, if so, whether the district court properly balanced any such right against the privacy interests at stake.
In fact, while the search warrants and affidavits at issue in Newsday were public documents "required by Rule 41 of the Federal Rules of Criminal Procedure to be filed with the clerk of the issuing court," Newsday, 895 F.2d at 77, they had been sealed prior to the court order that was appealed and were therefore not yet public. When they could properly be disclosed, if at all, was still at issue in the case.
Appellants' argument that the issue here is whether "a civil litigant can obtain wholesale access to thousands upon thousands of wiretap intercepts completely outside of section 2517 and prior to (not `incident to, or after,') any authorized disclosure under section 2517," is therefore incorrect. Indeed, Appellants concede that disclosure to them was proper, noting that "Title III permitted the U.S. to provide the wiretap recordings to [Appellants] solely for their use in defending against the criminal case. 18 U.S.C. § 2517(2)."
Newsday is, of course, distinguishable in various ways. The disclosure at issue in Newsday was a disclosure in a newspaper to the full public, while the disclosure at issue in the instant case only involves disclosing the contents to SEC attorneys as well as any other parties. Therefore, in this regard, the intrusion on privacy interests contemplated here is less dramatic than the one at issue in Newsday. On the other hand, unlike the instant case, which involves the privacy interests of hundreds of individuals, the disclosure at issue in Newsday only involved the privacy interest of one party and, in fact, the court redacted any disclosure of third-party information. The privacy interests at stake in Newsday were thus both greater and lesser in various ways than the clashing interests here. These distinctions, however, affect the balancing of interests that the court must perform, not the analytic framework that requires such balancing.
We have repeatedly employed such balancing when dealing with Title III issues. We have similarly employed a balancing in other relevant discovery contexts. Weare therefore confident that district courts can engage in such balancing in the present context without undue difficulty.
See, e.g., Gerena, 869 F.2d at 85 ("Our recognition of a qualified First Amendment right of access does not mean that Title III materials used by the government in connection with a criminal proceeding must automatically be disclosed. The district court must balance the public's right of access against the privacy and fair trial interests of defendants, witnesses and third parties."); Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) ("Certainly, the privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure of the Title III material should weigh heavily in a court's balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted."); Matter of New York Times Co., 834 F.2d 1152, 1154 (2d Cir. 1987) ("Redaction is permissible . . . if the district judge finds that important Title III privacy interests cannot otherwise be protected and such privacy interests outweigh the public's interest in access."); see also id. ("Title III incorporates a very important right of privacy and . . . in applying the balancing test . . . the right of privacy incorporated in Title III `should weigh heavily in a court's balancing equation.'" (citation omitted)).
See, e.g., City of New York, 607 F.3d at 948 (in determining whether law enforcement privilege should foreclose disclosure the "public interest in nondisclosure [must be balanced] against the need of a particular litigant for access to the privileged information" (internal quotation marks omitted)); SEC v. TheStreet.com, 273 F.3d 222, 231-32 (2d Cir. 2001) (discussing requirement that district courts weigh public right of access for "judicial documents" in civil cases against danger of impairing law enforcement or judicial efficiency and privacy interests of those resisting disclosure); United States v. Fields, 113 F.3d 313, 324 (2d Cir. 1997) ("[T]he district court must be satisfied, after balancing the competing interests of the government and the defense, that the defendant's need for disclosure outweighs the government's interest in shielding the informant's identity.").
C. NBC and New York Times
Appellants argue that other circuit precedent counsels against such an analysis. First, Appellants cite our decision in National Broadcasting Co. v. U.S. Department of Justice, 735 F.2d 51 (2d Cir. 1984) ( "NBC") — our only precedent that deals directly with a civil discovery dispute, as opposed to a common-law or First Amendment right of access, involving wiretap materials. In NBC, we noted that "Congress did not utilize a provision in the Organized Crime Control Act [amending § 2517] to make the fruits of wiretapping broadly available to all civil litigants who show a need for them." Id. at 54. While that statement is clearly correct so far as it goes, NBC does not stand for the proposition that the disclosure of Title III materials in civil discovery is necessarily foreclosed.
NBC involved a libel suit brought by Wayne Newton, the entertainer, against NBC, the broadcasting corporation, based on broadcasts concerning organized crime investigations involving Newton. Id. at 51-52. The government had conducted wiretaps in an investigation of organized crime members' attempts to extort money from Newton and others. Id. at 52. To defend against the libel action, NBC sought discovery from the government of the wiretap applications, orders, and recordings. Id. The government opposed disclosure of these documents. Id. The district court found that, while the interceptions were legal, "it lacked the power to order the government to disclose the[] contents [of the wiretaps] in a civil proceeding to which the government was not a party." Id. at 53.
It also denied NBC's request for access to applications and orders because NBC had not shown "good cause." NBC, 735 F.2d at 53.
We affirmed the district court, noting that, while § 2517(3) had been amended in 1970 to permit disclosure of materials in civil as well as criminal proceedings, "turning Title III into a general civil discovery mechanism would simply ignore the privacy rights of those whose conversations are overheard." Id. at 54. We emphasized that the suit at issue, between NBC and Newton, was not a civil enforcement proceeding, which Congress had in mind in passing the amendment, and found that Congress surely had not intended the amendment to Title III "to make the fruits of wiretapping broadly available to all civil litigants who show a need for them." Id.
Regarding the district court's denial of access to the applications and orders, we found that NBC was not an "aggrieved person" and thus could not show "good cause" for their release, and, in any event, that NBC failed to show why it needed these sealed materials for its case, when it should have sufficient evidence simply from the sources it used for its broadcast. NBC, 735 F.2d at 55.
While NBC stands for the proposition that a civil litigant cannot force the government to disclose Title III materials in an ordinary civil case for the simple expedient of aiding its defense, it does not govern the instant case. NBC is distinguishable in two fundamental ways. First, it dealt with whether a court could order the government to disclose previously undisclosed wiretap recordings against its wishes in a civil proceeding unrelated to the government's criminal case. In the instant case, on the other hand, the government has disclosed these materials to a party pursuant to § 2517(2), and the question is whether or not the court can order that party to disclose the materials in the interest of the civil discovery principle of equal knowledge. Second, there was no relevant informational imbalance in NBC, as Newton did not have access to these materials either. Here, in contrast, Appellants have free access to the materials to prepare their defense in the SEC action.
Insofar as Appellants have disclaimed any present intention to introduce any of these materials into evidence, they give no indication that this is anything but a tactical decision. It is difficult to believe that Appellants would decline to introduce at trial, or could be prevented from so utilizing, any evidence provided to them by the government that clearly exonerated them from the charges brought by the SEC.
Therefore, while NBC establishes that Title III is not meant to make wiretap materials a repository of information available from the government by subpoena to civil litigants for use in private disputes, it does not address the legitimacy of ordering the discovery from a private litigant of Title III materials that have already been disclosed to that litigant by the government, in order to create a level playing field between a civil enforcement agency and that litigant.
Finally, while NBC makes clear that Title III does not make wiretap materials in the government's possession freely available to civil litigants, it does not support the proposition that discovery of such materials from anyone, made under any circumstances, is forbidden. Indeed, the result in NBC is entirely compatible with the balancing approach set forth in Newsday. Under the circumstances present in NBC, the interests weighing against disclosure were overpowering. In addition to the privacy interests of those who had been overheard, the government's strong interest in the confidentiality of a criminal investigation strongly counseled against disclosure. See NBC, 735 F.2d at 52 (noting that the government opposed disclosure, in part, because "the wiretap applications contained descriptive data regarding confidential informants"). Moreover, absent any new criminal prosecution, there was no reason to believe that the wiretap materials that had not been disclosed at the related criminal trial would ever be disclosed to anyone outside the government. On the other side of the balance, NBC sought materials that might or might not ultimately be relevant or admissible at trial, and that no other party to the civil litigation possessed. Under such circumstances, disclosure of the wiretap materials was clearly unwarranted. It does not follow that the balance will come out the same way in all other cases.
Appellants' reliance on New York Times, 577 F.3d at 406, for the proposition that there is a "strong presumption against disclosure of the fruits of wiretap applications," is also misplaced. Id. (emphasis omitted). In New York Times, we concluded that because The New York Times was not an "aggrieved person" it could not show the requisite "good cause" to release applications under Title III regarding wiretaps of the prostitution ring once patronized by former Governor Eliot Spitzer. Id. at 408. New York Times, however, dealt with the disclosure of wiretap applications, not contents. In fact, in New York Times, we expressly distinguished Newsday by noting (among other reasons) that at issue in Newsday were the fruits of the wiretaps, which are governed by 18 U.S.C. § 2517, not the wiretap applications, which are governed by § 2518(8)(b). Id. at 407 n. 3; see also id. at 408. In any event, even if there is a presumption against disclosure of wiretap contents that would be relevant to this case, an issue we need not decide, the analysis set forth above is still appropriate, as that presumption could be overcome with a sufficient showing of need based on a Newsday-type balancing.
While the opinion in New York Times did refer to the "fruits" of wiretap applications, the actual issue in the case was whether the applications themselves should be disclosed.
In short, Appellants have failed to point us to any case law establishing that Title III prohibits the disclosure of wiretap materials in a situation such as this one: where the government has previously dis closed the contents of wiretaps to a party, and a civil enforcement agency seeks access to those contents from that party, not from the government.
IV. Did the District Court Exceed its Discretion in Entering the Instant Order?
"We review discovery rulings for abuse of discretion." In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008). Pursuant to Newsday, the district court was required to determine whether or not the SEC had a right of access to the materials, and, if so, whether any such right outweighed the privacy interests at stake. We conclude that the district court correctly found that the SEC had a legitimate right of access to the materials, but that it clearly exceeded its discretion in finding — on the record before it — that this right of access outweighed the privacy interests implicated by the order. Further inquiry was necessary, specifically, into the legality of the wiretaps and the relevancy of the recordings to be disclosed, before any such conclusion could be reached.
A. The SEC's Right of Access
Under the circumstances of this case, where the civil defendant has properly received the Title III materials at issue from the government, the SEC has a presumptive right to discovery of these materials from its adversary based on the civil discovery principle of equal information.
The Supreme Court has acknowledged the "fundamental maxim of discovery that `[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.'" Socié té Nationale Industrielle Aé rospatiale v. U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 540 n. 25, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987), quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (alteration in original); see also Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975). "To that end, either party may compel the other to disgorge whatever facts he [or she] has in his [or her] possession." Hickman, 329 U.S. at 507, 67 S.Ct. 385; see also Ratliff v. Davis Polk Wardwell, 354 F.3d 165, 170 (2d Cir. 2003) ("`[C]ivil trials in the federal courts no longer need be carried on in the dark.'" (quoting Schlagenhauf v. Holder, 379 U.S. 104, 115, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964))).
Federal Rule of Civil Procedure 26(b)(1) embodies this principle by permitting parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1); see also id. ("Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."). However, while the SEC has a right of access to the materials possessed by Appellants, that right of access does not outweigh any and all privacy interests at issue. A balancing is required for a district court reasonably to exercise its discretion.
The right of access to discovery materials is frequently qualified in the interest of protecting legitimate interests. See, e.g., In re Agent Orange, 517 F.3d at 103 ("A district court has wide latitude to determine the scope of discovery . . . [and] abuses its discretion only when the discovery is so limited as to affect a party's substantial rights." (internal quotation marks and citations omitted)); see generally In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003) ("[T]he federal rules give district courts broad discretion to manage the manner in which discovery proceeds."). For example, a district court may permit the withholding of otherwise discoverable evidence to avoid disclosing privileged information, Fed.R.Civ.P. 26(b)(5)(A) (accounting for a party "withholding] information otherwise discoverable by claiming that the information is privileged"); see, e.g., City of New York, 607 F.3d at 948 ("Once the party asserting the privilege successfully shows that the privilege applies, the district court must balance the public interest in nondisclosure against the need of a particular litigant for access to the privileged information." (internal quotation marks omitted)), or trial preparation materials, Fed.R.Civ.P. 26(b)(3) (setting limitations on when and what kind of attorney work-product "documents and tangible things" may be disclosed, but noting that court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation"); see, e.g., In re Grand Jury Subpoenas Dated Mar. and Aug. 2002, 318 F.3d 379, 383-84 (2d Cir. 2003). A district court must also limit "the frequency or extent of discovery" if it determines that it is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive . . . [or where] the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2)(C); see, e.g., In re Subpoena Issued to Dennis Friedman, 350 F.3d at 69. And a district court may issue protective orders "for good cause . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1); see, e.g., City of New York, 607 F.3d at 949; In re Subpoena Issued to Dennis Friedman, 350 F.3d at 69. In short, as is true generally in the discovery context, the SEC has a discovery right to the information in question, but that right is not absolute.
We first examine the weight of the SEC's interest. Appellants' unilateral access to this information in preparing for trial would surely be prejudicial to the SEC, because, even if Appellants do not use any of the recordings at the civil trial, they could still use the materials in preparation for trial — for example, by preparing to cross-examine witnesses at deposition or at trial, by attacking the credibility of witnesses, or by deciding how to structure their defense. Placing the parties on a level playing field with respect to such functions is the very purpose for which civil discovery exists. For this reason, we find that the SEC's right of access is significant.
Appellants make several arguments that there is no relevant informational imbalance. They argue that Congress intentionally created any imbalance that might exist when it withheld wiretap authority from the SEC, and that the SEC could simply depose Appellants if it wished to learn about their telephone conversations. Moreover, they argue that they do not intend to use these materials in their civil defense. Appellants also argue that informational equality is not always guaranteed, pointing to differential rules of access for civil and criminal litigants with regards to sensitive information involved in grand jury proceedings and materials protected by executive privilege. Finally, Appellants argue that there is no informational harm because the wiretapped conversations at issue here are not relevant. While these arguments demonstrate that the SEC's rights to discovery cannot be absolute, and some of them bear on the balance to be struck, they do not convince us that the SEC does not have a significant interest in access to these materials that, if it outweighs the privacy interests at stake, could permit a district court to order disclosure.
First, for reasons already discussed, we are not persuaded that Congress has acted to deny the materials at issue to the SEC. The fact that Title III does not permit the SEC to engage in wiretapping does not mean that it forbids the SEC from possessing the fruits of wiretaps legitimately intercepted during a criminal investigation and disclosed to parties against whom the SEC is litigating. The issue is not whether the SEC has a right to obtain verbatim accounts of its adversaries' conversations by wiretapping — the power that Congress denied to the SEC. Rather the question is whether Appellants are entitled to withhold such verbatim accounts of their conversations, which are in their possession, from their adversary in litigation.
Second, as Appellants admit, any depositions of Appellants would be unlikely to be fruitful given the likelihood that Appellants would invoke their Fifth Amendment rights due to the pending criminal proceeding. Appellants submit that this concern would be mitigated if the SEC had waited to file its case until after the criminal proceeding concluded; or, for that matter, if the district court had agreed to adjourn the enforcement proceeding until after the criminal proceeding. Even if we were to agree, such mitigation would not resolve this appeal. Appellants's deposition is not a perfect substitute for access to the wiretapped conversations even apart from any invocation of Fifth Amendment rights, given the likelihood that Appellants would not remember the contents of many potentially relevant conversations to which their attorneys, in possession of recordings of those conversations, would still have access. In any event, parties to litigation are not limited in discovery to their adversaries' recollection as to matters reduced to writing, recorded, or otherwise memorialized. The point is clear if we imagine that Appellants themselves, rather than the government, had taped their own conversations: the argument that the SEC (or any other litigation adversary) had no interest in discovering such recordings because its lawyers could simply depose Appellants and get their recollections of the conversations would be rejected out of hand.
Third, while Appellants state that they do not intend to use the materials in preparation for their civil trial, that intention does not eliminate the unfair advantage they might have against the SEC, given that the team of lawyers defending the criminal case substantially overlaps with that defending the civil case. It would be nearly impossible to stop the attorneys from, at the very least subconsciously, using information from these materials in preparation for the civil trial. At any rate, Appellants do not maintain that they are legally precluded from using the wiretap materials at their civil trial should it become tactically advisable to do so. It therefore cannot be said that this imbalance would be insignificant.
This inevitable "tainting" of the team of attorneys is the reason that so-called "ethical walls" are erected to insulate attorneys from conflicts of interest, immunized testimony, or materials that may have been illegally obtained. See, e.g., Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 138 (2d Cir. 2005); United States v. Schwimmer, 882 F.2d 22, 26 (2d Cir. 1989); cf. Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d Cir. 1985); United States v. Supere, 531 F.2d 63, 66 (2d Cir. 1976). Indeed, the SEC has offered to establish a "taint" team of attorneys that would review the wiretap materials until the suppression motion had been decided. See, e.g., United States v. Lentz, 524 F.3d 501, 516 n. 3 (4th Cir. 2008). Appellants, on the other hand, have not suggested they would establish such a "taint" team, which is quite understandable given the necessary expense that would be involved.
Fourth, while Appellants may be correct that civil and criminal litigants may have different discovery rights regarding grand jury proceedings and claims of executive privilege, the cases cited by Appellants do not bear on the instant case. While it is true that government civil attorneys may only receive grand jury materials from prosecutors for the purposes of pursuing a civil suit upon making a showing of "particularized need," United States v. Sells Eng'g, Inc., 463 U.S. 418, 420, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983); see also Illinois v. Abbott Assocs., 460 U.S. 557, 566-67, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983); Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222-24, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), this does not affect the analysis of when a civil enforcement agency can receive wiretap materials from a civil litigant who has lawfully received the materials from the government. The cases cited by Appellants do not appear to have involved disclosure requests directed to private parties who have previously received the requested materials legitimately from the government. In any event, these cases do not establish that disclosure of even the presumptively secret grand jury materials there at issue is flatly prohibited; they establish instead that disclosure is warranted only when on balance "the need for [disclosure] outweighs the public interest in secrecy. . . . In sum, [] the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court." Sells, 463 U.S. at 443, 103 S.Ct. 3133, quoting Douglas Oil, 441 U.S. at 223, 99 S.Ct. 1667. While the interests may be different in the instant case, this type of, balancing is precisely what we call for today.
Indeed, in Douglas Oil, the parties seeking the grand jury materials chose not to seek it from their adversary pursuant to typical discovery, but sought it from the district court as "guardian of the grand jury transcripts." Douglas Oil, 441 U.S. at 216, 99 S.Ct. 1667.
Similarly, Appellants are correct that civil discovery interests may be less weighty than criminal discovery interests in dealing with executive privilege. See Cheney, 542 U.S. at 384, 124 S.Ct. 2576 ("The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in [ United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)]."). But that argument simply goes to the balance that must be undertaken and does not undermine the SEC's presumptive right to discovery. Indeed, not even executive privilege is absolute, see Nixon, 418 U.S. at 707, 94 S.Ct. 3090, and, just as in this case, interests must be weighed in deciding whether information subject to the privilege should be disclosed. In short, while a civil discovery interest in material may weigh less heavily than a criminal discovery interest, it does not follow that the SEC's right to informational equality is outweighed by Appellants' privacy interests in the instant case.
Finally, since the district court did not evaluate the materials to determine their relevance, we are not in a position to evaluate Appellants' claim that the wiretap conversations are not relevant. If they are relevant, see Fed.R.Civ.P. 26(b)(1) ("Unless otherwise limited by court order . . . [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . ."), then Appellants' possession of the conversations would put the SEC at a disadvantage, and the SEC has a presumptive right to discover them. And, as we conclude below, any disclosure of wiretap conversations should be limited to relevant conversations in any event.
In sum, despite Appellants' arguments to the contrary, the SEC clearly has an interest in access to these wiretap conversations insofar as they create an informational imbalance prejudicing its preparation for the civil trial.
B. The Privacy Interests at Stake
While the SEC has a right of access to the wiretap materials, that right must be balanced against the strong privacy interests at stake in connection with the fruits of electronic surveillance. The privacy interests in the instant case merit particular attention given that the disclosure order implicated thousands of conversations of hundreds of innocent parties, and that the district court ordered disclosure prior to any ruling on the legality of the interceptions and without limiting the disclosure to relevant conversations.
The Supreme Court has made clear that "although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern." Gelbard, 408 U.S. at 48, 92 S.Ct. 2357; see also Bartnicki, 532 U.S. at 523, 121 S.Ct. 1753 ("One of the stated purposes of [Title III] was `to protect effectively the privacy of wire and oral communications.'"); id. at 532, 121 S.Ct. 1753 ("Privacy of communication is an important interest, and Title Ill's restrictions are intended to protect that interest. . . ." (citation and footnote omitted)). Indeed, we have reiterated the importance of the privacy interests embodied in Title III time and again. The fact that Title III does not impose an absolute ban on civil discovery orders of the kind at issue here does not mean that the concerns for privacy that underlie Title III are irrelevant or can be disregarded. To the contrary, we conclude that those concerns, and the evident desire of Congress to limit disclosures of the fruits even of lawful wiretapping, must be carefully weighed before discovery is ordered.
See Gerena, 869 F.2d at 86 ("[W]e do not want lo understate the significant privacy interests of those who have been targeted for surveillance. The protection of privacy was a very important congressional concern in the passage of Title III. `Certainly, the privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure of the Title III material should weigh heavily in a court's balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted.'" (quoting New York Times Co., 828 F.2d at 116) (citations omitted)); New York Times Co., 828 F.2d at 115 ("It is obvious that although Title III authorizes invasions of individual privacy upon compliance with certain stringent conditions, the protection of privacy was an overriding congressional concern. . . . We thus agree . . . that the right of privacy protected by Title III is extremely important."); New York Times Co., 834 F.2d at 1154 ("Title III incorporates a very important right of privacy and . . . in applying the balancing test . . . the right of privacy incorporated in Title III should weigh heavily in a court's balancing equation." (internal quotation marks omitted)).
C. The District Court Could Not Properly Balance the Interests at Stake on the Record Before It
At the present stage of this litigation, a definitive balancing of the interests at stake in this case is impossible, because the record is not adequately developed to support the broad order appealed from. Nevertheless, it is clear that the order appealed from, for those very reasons, cannot be sustained. The district court exceeded its discretion in failing to balance properly the relevant privacy interests against the SEC's right of access in two major ways: (1) by ordering the disclosure of the conversations prior to a ruling on the legality of the interceptions, and (2) by failing to limit the disclosure order to relevant conversations.
1. The Suppression Motions Have Not Been Decided
The sheer number of conversations and parties at interest in this case evince a strong privacy interest that would require an equally strong right of access to support disclosure. Even absent such numbers, a district court could not effectively balance these competing interests while the legality of the wiretaps is at issue. If the legality of the wiretaps is upheld, any privacy rights against interception would have been infringed lawfully and with good purpose. On the other hand, if the wire-taps are found to have been unlawful, the privacy rights at issue would already have been grievously infringed, and further dissemination of conversations that had been illegally intercepted would only compound the injury. Title III limits the proper dissemination and use of lawfully-authorized electronic surveillance. It absolutely prohibits, however, the intentional disclosure of the fruits of unlawful wiretapping. See 18 U.S.C. §§ 2518(10)(a) 2511(1)(c); see also id. § 2515; Gelbard, 408 U.S. at 46, 92 S.Ct. 2357 ("Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes, and the victim of such interception, disclosure, or use is entitled to recover civil damages." (citation omitted)).
A determination suppressing the fruits of the surveillance here at issue would drastically alter the balance of interests in the civil case. Moreover, while there would still be some asymmetry in the fact that Appellants' attorneys would have had access to the materials while preparing their defense, a suppression order would at least prevent their use in evidence. It is for these reasons that a defendant subject to a wiretap is given the opportunity to have a judge determine the legality of wiretaps before their testimonial disclosure at a criminal trial. See 18 U.S.C. § 2518(10). Conversely, a determination that the wiretaps were legal would reduce the privacy concerns, and would make it all but inevitable that some or all of the most relevant conversations would be publicly played at the criminal trial.
In addition, as Appellants point out, if the wiretaps are found to have been illegal, ascertaining the effect of the wiretaps on witnesses and attorneys who might have been "tainted" by any unlawfully intercepted Title III materials would be extremely difficult. For this reason, and because it would not stop the initial disclosure to the SEC and other parties, the district court's protective order limiting disclosure to the SEC and other parties to the litigation was not sufficient to protect the privacy interests at stake.
The additional violations of rights that would result if the disclosed conversations were found to be illegally intercepted could easily be avoided by requiring that the disclosure order await a ruling on the legality of the intercepts. In contrast, there appears to have been no significant benefit to either party in ordering the disclosure prior to the adjudication of the pending suppression motions in the criminal case. No emergency compelled the court to order all discovery completed prior to any decision on the legality of the electronic surveillance. Indeed, awaiting a ruling on the legality of the interceptions would advance all the interests at stake, because if the wiretaps were found to be legal, the privacy interests would be less weighty, and if the wiretaps were found to be illegal, the privacy interests would be protected because disclosure would not be permitted, thereby limiting both any "taint" on relevant actors and any further infringement on the right against disclosure.
The more prudent course in the instant case may have been to adjourn the civil trial until after the criminal trial. Apparently, all the parties agreed to such a request, yet the district court declined to grant it. Were the civil trial adjourned, the most relevant wiretapped conversations, assuming they were found to be legally intercepted, might well be publicly disclosed at the criminal trial, and the SEC would then be able to use these materials in a civil proceeding without implicating any weighty privacy rights. Such an adjournment would have the added benefit of making the district court's job of balancing any relevant interests significantly easier.
At a minimum, however, ordering discovery of the wiretap materials before any determination of the legality of the surveillance involved exceeded the district court's discretion. A primary reason for the pretrial disclosure of the material to Appellants in the criminal case in the first place was to enable them to make motions addressing their legality before the judges presiding over the related criminal cases. Appellants and the defendants in the related cases have indeed made, or indicated they will make, such motions before Judges Holwell and Sullivan, and proceedings to resolve them are under way. See United States v. Rajaratnam, No. 09 Cr. 1184(RJH), 2010 WL 3219340 (S.D.N.Y. Aug. 12, 2010) (Doc. No. 130) (ordering evidentiary hearing with respect to motion to suppress); United States v. Goffer, No. 10 Cr. 56(RJS) (S.D.N.Y. Sep. 10, 2010) (Doc. No. 98) (setting briefing schedule on motions). A district court has a legitimate interest in maintaining control over its docket and enjoys considerable discretion in setting schedules for discovery, motions, and trial, but that interest is insufficient to support an order directing the further dissemination of wiretap materials pending a decision on the legality of their acquisition.
Of course, we express no opinion as to the merits of the pending motions; we merely note that, pending adjudication of the motions, the possibility that they will be granted cannot be ruled out. Similarly, we express no view as to whether there may be circumstances in which a judge in a civil case may himself appropriately address the legality of electronic surveillance in connection with discovery litigation. We note only that in this case, with such motions already pending in the criminal cases, there is no need or warrant for such proceedings in the civil case.
Given that there were so many reasons to wait until a court had ruled on the legality of the interceptions, and no persuasive reasons to proceed without waiting, the district court's decision to order disclosure of the wiretap communications prior to any ruling on their legality clearly "cannot be located within the range of permissible decisions." Sims, 534 F.3d at 132 (citation and internal quotation marks omitted). The privacy interests at stake prior to a ruling on the legality of interceptions clearly outweigh the SEC's interest in discovery.
2. The Court's Failure to Limit the Disclosure to Relevant Conversations
The district court also clearly exceeded its discretion by failing to limit the disclosure of the wiretapped conversations to relevant conversations. The SEC does not have a right of access to irrelevant conversations, even if lawfully intercepted, because Appellants' possession of these conversations would not benefit them in preparing for the civil trial. Indeed, both the SEC and USAO agree that the order should be limited to relevant disclosures. See, e.g., SEC Br. 8 ("Although not emphasized in the district court, the Commission has no objection to either this Court or the district court making it explicit that only relevant materials need be produced. This would exclude allnonrelevant communications, including obviously all communications with third parties involving matters unrelated to the charged civil and criminal conduct."); see also id. at 55 ("The Commission does not seek materials that are not relevant to its claims, and if necessary the district court's order can be modified to make this point explicitly."). The point assumes particular significance here where ordering the disclosure of all the conversations without limiting discovery to relevant material could infringe the privacy rights of hundreds of individuals, whose irrelevant, and potentially highly personal, conversations with the Appellants would needlessly be disclosed to the SEC and other parties, without furthering any legitimate countervailing interest. The district court clearly exceeded its discretion by this failure to limit the disclosure.
While the district court was correct that the SEC had a legitimate right of access to the wiretap materials, it could not properly balance that interest against the privacy interests at stake while the legality of the wiretaps was still unresolved. In any event, the district court exceeded its discretion in ordering disclosure of wiretap materials without regard to relevancy, particularly in a case involving a large number of recordings intercepting conversations of innocent parties. In sum, because the challenged order was thus "clearly outside the range of permissible decisions," we conclude that Appellants have shown a "clear and indisputable right" to the writ of mandamus to vacate that order.
We express no view as to the ultimate propriety of a more limited discovery order, entered after further developments in the criminal case and after a more careful balancing of the interests at stake upon a fuller record, including an analysis of the degree of relevance of the conversations at issue. Nor do we express any view on whether immediate review of such an order, by mandamus or otherwise, would be available. Such questions may be addressed if and when they ever arise.
CONCLUSION
For the foregoing reasons, we GRANT the writ of mandamus, VACATE the district court's discovery order, and REMAND the cause to the district court for further proceedings not inconsistent with this opinion.