In Re: Civil Beat Law Center for the Public Interest
Filing
8
ORDER REMANDING DECISION OF MAGISTRATE JUDGE FOR FURTHER CLARIFICATION re 5 , 6 - Signed by JUDGE DERRICK K. WATSON on 3/2/2022. Defendant's appeal, Dkt. No. 470, is, therefore, HELD IN ABEYANCE pending further clarification from the Magistrate Judge and direction from the parties. (CR 19-00099 DKW-KJM-01, MC 22-00008 DKW-KJM) (eta)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
v.
Plaintiff,
MICHAEL J. MISKE,
Case No. 19-cr-00099-DKW-KJM-1
ORDER REMANDING
DECISION OF MAGISTRATE
JUDGE FOR FURTHER
CLARIFICATION
Defendant.
Case No. 22-mc-00008-DKW-KJM
IN RE CIVIL BEAT LAW CENTER FOR
THE PUBLIC INTEREST,
Objector.
Pending before the Court is an appeal by Defendant Michael J. Miske of the
decision of the assigned Magistrate Judge to deny without prejudice his motion to
file certain exhibits under seal. Dkt. No. 470.1 Therein, Miske contends that the
Magistrate Judge’s decision is “contrary to law” for various reasons, principally
because the Magistrate Judge purportedly considered whether the exhibits (for
which sealing has been sought) were “more than tangentially related” to the merits
of this case, rather than the motion to which the exhibits were attached. Dkt. No.
1
Unless otherwise noted, citations to the record are to docket entries filed in Case No. 19-cr-99DKW-KJM-1.
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470-2 at 15-16. The government, in response to Defendant’s appeal, makes a
similar assertion. Dkt. No. 472 at 6-11.
The Magistrate Judge’s decision, however, is unclear on that point. In one
place, as Miske and the government state, the Magistrate Judge found “that the
Subject Exhibits” attached to the underlying motion to compel “appear to be more
than tangentially related to these criminal proceedings….” Dkt. No. 466 at 15
(emphasis added). The Magistrate Judge then expounded, using one of the
Exhibits in question as an example. Id. If the Magistrate Judge had stopped at
that point, there may have been cause to agree with appellant. The Magistrate
Judge, however, continued by also determining that the underlying motion
implicated Defendant’s constitutional rights, concluding that, “[d]ue to the strong
presumption in favor of public access and the nature of the underlying Motion to
Compel,” Defendant was required to show a compelling reason for sealing the
relevant exhibits. Id. at 16 (emphasis added).
In this light, it is unclear whether the Magistrate Judge relied on the
underlying motion, the exhibits, or a combination of both when determining the
appropriate standard to employ to Defendant’s sealing request. To be clear, at
least under this Court’s reading of the pertinent case law, the correct approach is
for the underlying motion to be considered when determining whether a matter is
2
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“more than tangentially related” to the merits of a case. Ctr. for Auto Safety v.
Chrysler Group, LLC, 809 F.3d 1092, 1099 (9th Cir. 2016) (“The focus in all of
our cases is on whether the motion at issue is more than tangentially related to the
underlying cause of action.”) (emphasis added). While the exhibits attached to a
motion may well inform whether a motion is “more than tangentially related” to a
case, it is still the motion (and the relief sought therein) that drives the inquiry.
See id. at 1102 (pointing to the relief sought in a motion for preliminary injunction
as reason for concluding the motion was “more than tangentially related to the
merits.”). 2
As a result, it is necessary to remand this matter to the Magistrate Judge for
clarification. Upon issuance of that clarification, the parties may avail themselves,
if they wish, of Local Criminal Rule 57.3(b), explaining to what extent, if any, the
matters on appeal have been altered by that clarification. If no appellate issue
remains, the parties shall so state within the time afforded by the same rule.
2
Civil Beat Law Center for the Public Interest’s (Civil Beat) argument that the Magistrate Judge
did “not look only” to the exhibits, see Case No. 22-mc-8-DKW-KJM, Dkt. No. 7 at 15, even if
true, therefore, misses the point.
3
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Defendant’s appeal, Dkt. No. 470, is, therefore, HELD IN ABEYANCE
pending further clarification from the Magistrate Judge and direction from the
parties.
IT IS SO ORDERED.
Dated: March 2, 2022 at Honolulu, Hawai‘i.
United States of America v. Michael J. Miske; CR 19-00099 DKW-KJM-1
In Re Civil Beat Law Center for the Public Interest, Objector; MC 22-00008
DKW-KJM; ORDER REMANDING DECISION OF MAGISTRATE JUDGE
FOR FURTHER CLARIFICATION
4
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