The Civil Beat Law Center for the Public Interest, a nonprofit law firm, has again successfully intervened in a high-profile criminal case to limit the use of secrecy and the withholding of documents filed in the case from the public.

On January 20, federal prosecutors joined with attorneys representing former Honolulu corporation counsel Donna Leong, former managing director Roy Amemiya, along with former police commission chair Max Sword, seeking court approval for a protective order sealing all materials provided to the defendants as part of the process of discovery.

According to the American Bar Association:

To begin preparing for trial, both sides engage in discovery. This is the formal process of exchanging information between the parties about the witnesses and evidence they ll present at trial.

Discovery enables the parties to know before the trial begins what evidence may be presented. It s designed to prevent “trial by ambush,” where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence.

Prosecutors normally turn over the evidence they intend to use in a criminal case to the defendants, including evidence that tends to show guilt, as well as “exculpatory” evidence that weighs against conviction.

These discovery materials are sealed, and cannot be disclosed to anyone outside of the legal teams and the defendants, and defense attorneys are required to take reasonable steps to maintain confidentiality and safeguard the materials from disclosure.

The law center objected to a broad provision of the proposed protective order which have provided “blanket authority for sealing court records without the parties or the Court first satisfying the procedural and substantive safeguards required by the Ninth Circuit.”

After citing the legal precedents for the public’s presumed right of access to criminal proceedings and documents filed in those proceedings, the law center’s motion spelled out the procedural and substantive prerequisites to sealing of court records.

The motion quoted from a number of prior court decisions, including a 2011 case that provided: “For the common law analysis, the ‘party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by . . . articulating compelling reasons . . . that outweigh the general history of access and the public policies favoring disclosure.…’”

Federal Judge Leslie Kobayashi agreed with the law center’s objection. In a court order dated January 21, she directed prosecutors and the defendants “to revise their proposed protective order to reflect that, even where covered by a protective order, materials may only be filed under seal if the filing party first obtains court approval. Further, any motion to file material under seal must establish that the material to be filed under seal meets the applicable legal standard.”

The revised version of the proposed protective order is due on Friday, January 28, and the law center has another week to file any objections. Kobayashi’s order said she will then take the motion under advisement.

This is just the latest in a string of cases in which the law center has intervened to increase transparency and prevent unnecessary sealing of court documents, including raising objections several times in the prosecution of Michael Miske, Jr. and his co-defendants.

Attorney R. Brian Black serves as the law center’s executive director and senior staff attorney.

Minute Order regarding proposed protective order by Ian Lind on Scribd