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United States v. Avenatti

United States District Court, S.D. New York

January 6, 2020



          PAUL G. GARDEPHE, U.S.D.J.

         Defendant Michael Avenatti has moved for issuance of a Rule 17(c) subpoena duces tecum on non-party Gary Franklin (the “Motion”).[1] The proposed Rule 17(c) subpoena seeks production of

1. [a]ll audio recordings (and transcripts thereof) that Gary Franklin, Sr., or Jeffrey Auerbach made of conversations or meetings with Nike executives, including Jamal James, Carlton DeBose, Nico Harrison, Bryan Freedman; Mel McDonald; and/or with Michael Avenatti, discussing or referencing Franklin's potential claims against Nike, Nike's conduct directed at Franklin, and/or the payment to amateur basketball players and/or their families or agents between January 1, 2016, and March 25, 2019[;]
2. [u]nredacted versions of all text messages and e-mails between Gary Franklin, Sr., and Jeffrey Auerbach, produced by Franklin to the FBI or USAO-SDNY;
3. [t]he “recording” referenced in the text message with the Bates-stamp “Franklin 1017.”

(See Sept. 6, 2019 Srebnick Decl., Ex. 1; Sept. 6, 2019 Def. Br. at 1)

         Defendant, Franklin, and the Government have all requested that the Motion, Franklin's objection, the Government's opposition, and related filings be maintained under seal.


         Defendant has asked this Court to issue a Rule 17(c) subpoena for, inter alia, recordings that Franklin made of telephone conversations and meetings he had with Nike executives in or about 2017-18. The recordings were apparently made without the knowledge of the Nike executives. The Defendant, Franklin, and the Government all contend that the filings concerning the proposed Rule 17(c) subpoena should be sealed to protect the privacy of Franklin, the Nike executives, and others. (Sept. 6, 2019 Def. Req. to Seal; Sept. 23, 2019 Franklin Ltr.; Sept. 23, 2019 Proctor Decl. at 1; Sept. 27, 2019 Franklin Ltr. at 1; September 23, 2019 Govt. Ltr. at 1 n.1) Relying on United States v. Kravetz, 706 F.3d 47, 53-56 (1st Cir. 2013) and other precedent, the Defendant, Franklin, and the Government further contend that materials requested in a defendant's Rule 17(c) subpoena - and briefing regarding requests for Rule 17(c) subpoenas - are not subject to the presumption of access that applies to judicial documents. (Sept. 6, 2019 Def. Req. to Seal; Sept. 23, 2019 Franklin Ltr.; Sept. 23, 2019 Govt. Ltr. at 1 n.1)



         As a rule, “the press and general public have a constitutional right of access to criminal trials.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); United States v. Smith, 985 F.Supp.2d 506, 516 (S.D.N.Y. 2013). The Supreme Court has also extended the First Amendment right of access to other criminal proceedings. Smith, 985 F.Supp.2d at 516 (citing Press-Enter. Co. v. Superior Court of Cal., 478 U.S. 1 (1986) (noting that courts should consider (i) whether the proceeding or filing at issue has historically been open to the press and general public (the “experience” prong) and (ii) whether public access plays a significant role in the functioning of the particular process in question (the “logic” prong))).

         The Second Circuit has held that the First Amendment right of access applies generally to suppression hearings, see In re Herald Co., 734 F.2d 93, 98-100 (2d Cir. 1984); voir dire, see ABC, Inc. v. Stewart, 360 F.3d 90, 105-06 (2d Cir. 2004); plea hearings, see United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988); and sentencings, see United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir. 2005).

         By contrast, materials exchanged in criminal or civil discovery are generally viewed as outside the judicial function and therefore not presumptively accessible. The court in United States v. Smith, 985 F.Supp.2d 506 (S.D.N.Y. 2013) summarized the case law - and the logic courts have employed - as follows:

Because discovery is a private process between the parties to an action (even if governed by specific rules and managed by trial judges), courts generally view the documents or materials shared between them as outside the judicial function and therefore not presumptively accessible. See [United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)] (noting that because documents “passed between the parties in discovery” “play no role in the performance of Article III functions, ” they “lie entirely beyond” the common law presumption of access); accord Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 . . . (1984) (noting that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information”); United States v. Kravetz, 706 F.3d 47, 54 (1st Cir. 2013) (“[T]here is no tradition of access to criminal discovery.”); Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (noting that “[s]ecrecy is fine at the discovery stage, before the material enters the judicial record[]”); Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir. 1986) (stating that “discovery . . . which is ordinarily conducted in private, stands on a different footing than does a motion filed by a party seeking action by the court”); Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 11-CV-1209, 2013 WL 4012772, at *11 (D.[ ]Conn. Aug. 5, 2013) (“Put simply, the public has no constitutional, statutory or common-law right of access to unfiled discovery.”); United States v. Gangi, No. 97-CR-1215, 1998 WL 226196, at *3 (S.D.N.Y. May 4, 1998) (noting that there is no common law tradition of public access to discovery in criminal cases). Indeed, even discovery materials filed with the court in connection with discovery-related disputes are not covered by the qualified right of access. See SEC v. TheStreet.Com, 273 F.3d 222, 233 (2d Cir. 2001) (rejecting claim that deposition testimony became a “judicial document” “because the Court reviewed it in order to decide whether or not to enter [a] protective order”); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir. 1995) (“We are not aware . . . of any common-law principle that documents submitted to a court in camera for the sole purpose of confirming that the refusal to disclose them to another party was proper, are to be deemed judicial records open to the public.”); accord United States v. Wecht, 484 F.3d 194, 209 (3d Cir. 2007) (noting that “documents filed with the court are generally subject to the common law right of access, unless attached to a discovery motion”); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993) (holding that “there is a presumptive [common law] right to public access to all material filed in connection with nondiscovery pretrial motions, . . . but no such right as to discovery motions and their supporting documents”). See generally Newsday, 730 F.3d at 167 n. 15 (noting that “the category of ‘judicial documents' should not be readily expanded, ” and “the fact that a document is relevant to the subject matter of a judicial proceeding, or that the proceeding was in some way stimulated by the document, does not make it public”).
With respect to logic, the courts have recognized the pitfalls in allowing unfettered public access to discovery materials. For one, the purpose of the discovery rules - to encourage the disclosure of information and materials to avoid unnecessary surprise and to level the playing field - might be undermined. See Kravetz, 706 F.3d at 54 (noting that decisions restricting public access to criminal discovery materials “are grounded largely on the concerns surrounding the deleterious effect that public access would have on the parties' search for and exchange of information in the discovery process”); Anderson, 799 F.2d [1438, ] 1441 [(11th Cir. 1986)] (“If . . . discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe.”). For another, there is the risk that disclosure of some of the discovery materials could taint a trial. See United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) (upholding district court's sealing of discovery materials deemed inadmissible at trial, holding that “disclosure of such [materials] would play a negative role in the functioning of the criminal process, by exposing the public generally, as well as potential jurors, to incriminating evidence that the law has determined may not be used to support a conviction”); United States v. White, No. 04-CR-370, 2004 WL 2399731, at *5 (E.D. Pa. Sept. 22, 2004) (noting that “[i]f the prosecutors and/or defense counsel had a practice of disclosing discovery materials to the media, this could be disruptive to a fair trial for all parties. . . .”). And, because the discovery rules are reciprocal, there is the risk that unfettered public access could jeopardize a defendant's trial strategy. See Kravetz, 706 F.3d at 54 (noting, in context of journalist's request for materials obtained by Rule 17(c) subpoena, that “there is scant value and considerable danger in a rule that could result in requiring counsel for a criminal defendant to prematurely expose trial strategy to public scrutiny”).

Smith, 985 F.Supp.2d at 519-20.

         The Second Circuit has articulated a three-step process for determining whether documents should be placed under seal. First, a court must determine whether the presumption of access attaches. A presumption of access attaches to any document that is a “judicial document” - i.e., an “item . . . relevant to the performance of the judicial function and useful in the judicial process.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 115 (2d Cir. 2006) (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”) (internal quotation marks omitted)). “[T]he ...

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