United States District Court, W.D. Virginia, Roanoke Division
IN RE VOLUNTARY DISCLOSURES IN FIFTY-FIVE CLOSED CASES
Michael F. Urbanski Chief United States District Judge
the court are nonparty Craig Frye's Motion to Seal
Exhibit's [sic] Attached to His Reply in Support of His
Motion to Intervene ("Motion to Seal Exhibits"),
ECF No. 44, and Motion to Seal Frye's Reply in
Support of Motion to Intervene (the "Motion to Seal
Reply," and collectively with the Motions to Seal
Exhibits, the "Motions to Seal"), ECF No. 47, and
nonparty BH Media Group, Inc.'s ("BH Media")
Petition for Leave to Intervene and Oppose Sealing Motion
("Motion to Intervene" or "BH Media Mot.
Intervene"), ECF No. 57. For the reasons stated below, the
court will DENY Frye's Motions to Seal,
GRANT BH Media's Motion to Intervene,
and direct the clerk to unseal Frye's Reply in Support of
Motion to Intervene (the "Reply"), ECF No. 43, and
the attached nineteen exhibits (the "Exhibits").
April 30, 2018, the government filed a motion to disclose
Giglio material in fifty-five related cases.
E.g., Mot. Voluntary Disclosure Grand Jury Other
Materials Pursuant to Brady and Giglio, ECF
No. 32. Frye, a detective with the Town of Vinton Police
Department, formerly a Task Force Officer with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, and referenced in
the Giglio material, moved to intervene and block
the disclosure of the Giglio material in the
fifty-five cases. E.g., Mot. Intervene, ECF No. 33.
court ultimately denied Frye's motions to intervene.
Order ("Intervention Order"), ECF No. 55. The court
held that "Frye's request [was] unprecedented"
because Frye could point to no authority suggesting that a
government witness could intervene as an interested party in
a criminal case. Id. at 2. Instead, the court held
that disclosure of potential Giglio material was
firmly in the prosecutor's purview. Id. at 2.
issue here is Frye's Reply to his motion to intervene.
Late in the evening on May 14, 2018, Frye filed his Reply
along with the Exhibits, each of which contains either
Giglio material or material that Frye claims is
"extremely sensitive, prejudicial, and grossly
inaccurate." Frye's Br. Supp. Mot. Seal Exhibits
Attached His Reply Supp. Mot. Intervene ("Frye Br. Supp.
Mot. Seal") at 2, United States v. Farrell.
7:12-cr-00058-MFU (W.D. Va. June 15, 2018), ECF No. 72; see
Reply Exs. 1-19. Moreover, Frye's twenty-eight page
Reply cited extensively from the Exhibits.
filing the Reply and Exhibits, Frye did not follow Local Rule
9, which governs the sealing of documents on the docket.
Local Rule 9(b) requires that any party seeking to obtain a
sealing order "must file an unsealed written motion
containing" a generic description of the document to be
sealed, the bases for sealing the document, and the duration
for sealing. W.D. Va. Gen. R. 9(b)(2). Additionally,
"the moving party must also tender to the court, in
camera, the document proposed to be sealed."
Frye filed the Reply and the Exhibits directly on the docket,
rather than in camera with the court. Frye
contemporaneously filed the Motion to Seal Exhibits. Because
Frye proceeded in this manner, his Reply and the Exhibits
remained unsealed on the docket, where the public could view
them. In the morning, approximately eight hours after Frye
publicly filed the Reply, the Exhibits, and the Motion to
Seal Exhibits, the court entered an order temporarily sealing
the Exhibits until the Motion to Seal Exhibits could be
addressed. Order, ECF No. 45.
same morning, Frye filed the Motion to Seal Reply, asking the
court to seal the Reply itself. Frye's Mot. Seal
Frye's Reply Supp. Mot. Intervene, ECF No. 47. At
argument on May 16, 2018, Frye to a large degree backed off
this motion. Frye represented to the court that if it wanted
to unseal the Reply, Frye thinks that would be satisfactory.
While the court indicated at argument that it would unseal
the Reply, the Reply remains sealed on the docket.
BH Media's Motion to Intervene
the court denied Frye's motion to intervene, see
Intervention Order 3, BH Media's Motion to Intervene
finds itself on far stronger legal footing. At the threshold,
Local Rule 9 allows "[a]ny person or entity, whether a
party or not, [to] object to a motion to seal a
document." W.D. Va. Gen. R. 9(b)(4). Local Rule 9 thus
allows BH Media to oppose Frye's Motions to Seal,
irrespective of BH Media's status as a party or nonparty
in these cases.
media outlets "unquestionably have standing to challenge
access to court documents." United States v.
James. 663 F.Supp.2d 1018, 1020 (W.D. Wash. 2009);
see also Doe v. Pub. Citizen. 749 F.3d 246, 262 (4th
Cir. 2014) ("This Court has previously permitted news
organizations to intervene in actions in which they were not
otherwise parties to challenge a district court's sealing
order."). This is because "[p]ublic access to
judicial proceedings is consistent with the 'First
Amendment and the common-law tradition that court proceedings
are presumptively open to public scrutiny.'"
United States v. Adams, 788 F.3d 115, 116 (4th Cir.
2015) (quoting Doe, 749 F.3d at 265).
both Local Rule 9 and the case law in mind, the court holds
that BH Media has standing to oppose Frye's Motions to
Seal. Accordingly, the court will grant BH Media's Motion
Frye's Standing to File the Motions to Seal
Federal Public Defender (the "FPD") raises a
threshold argument: Because the court has already denied
Frye's motion to intervene, the FPD argues that Frye
"does not have standing to seek to control or influence
the presumptively public docket in these 55 cases."
FPD's Opp. Frye's Mot. Seal, ECF No. 59, at 1.
Local Rule 9 provides some support for the FPD's
argument. Local Rule 9 states: "To obtain a sealing
order a party must file an unsealed written motion."
W.D. Va. Gen. R. 9(b)(2). Because Frye's motion to
intervene was denied and he is not a party, Local Rule 9