McKnight v. Warden, Ohio State Penitentiary

Filing 294

DECISION AND ORDER GRANTING PROVISIONALLY MOTION TO FILE UNDER SEAL 293 M. Signed by Magistrate Judge Michael R. Merz on 8/17/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

DECISION AND ORDER GRANTING PROVISIONALLY MOTION
TO FILE UNDER SEAL
This capital habeas corpus case is before the Court on Petitioner’s Motion to Leave to File
Renewed Motion for Discovery and Accompanying Exhibits Under Seal (ECF No. 293).
Petitioner’s counsel report compliance with S. D. Ohio Civ. R. 7.3, but that the Warden’s counsel
has not yet responded.
Petitioner raised similar concerns when seeking to file his Motion to Amend under Seal
(ECF No. 269). The Court granted that Motion provisionally, noting that court records may be
kept under seal only for good cause shown (Decision and Order, ECF No. 270, quoting Shane
Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016). In that decision the
Sixth Circuit noted that “a district court that chooses to seal court records must set forth specific
findings and conclusions ‘which justify nondisclosure to the public.’ Brown & Williamson [Tobacco
Corp. v. F.T.C., 710 F.2d [1160] at 1176. That is true even if neither party objects to the motion to
seal, as apparently neither did in Brown & Williamson.” 825 F.3d at 305-06. Given that limitation, the
Magistrate Judge granted the Motion only provisionally, subject to inspection of the documents in

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camera and any objection Respondent might make (ECF No. 270, PageID 17480).

The Warden initially objected that the documents had been filed under seal in such a way
that the Warden’s counsel did not have access to them, essentially allowing the filing to be ex parte
(ECF No. 272). The Magistrate Judge dealt with that objection by granting the Warden’s counsel
sealed document access in the case (ECF No. 273). The Warden opposed the Motion to Amend,
but did not include any objections to maintaining the seal of Petitioner’s Motion papers and the
Magistrate Judge has not revisited that question sua sponte.
In justification for sealing these new materials, Petitioner’s counsel write:
McKnight’s renewed motion and exhibits include information
concerning not only the deliberations of the jury at both the trial and
penalty phases of his trial but also views as to racial bias amongst
the jurors and in Vinton County, Ohio which had a significant
impact on McKnight’s conviction and sentence of death. More
specifically, the information contains racially charged statements
about McKnight and African Americans in general. While counsel
recognizes the Court’s preference that all documents should be
available to the public, the highly sensitive nature of the information
contained within the pleading and exhibits and privacy concerns for
the jurors involved compels counsel to proceed with great caution.
Such information, if made available to the public, could cause
significant embarrassment to and lead to the potential harassment of
the jurors and their family members. For these reasons, out of an
abundance of caution, counsel seeks to file documents pertaining to
McKnight’s jurors under seal.
(Motion, ECF No. 293, PageID 17637-38.) This language is a virtually verbatim quotation of the
justification previously given on the Motion to Amend (See ECF No. 269, PageID 17474-75).
The most efficient and effective way of conducting the required in camera inspection of
documents to determine whether they may be permanently filed under seal is to have them filed
that way provisionally. That method avoids “splitting the record” by having hard copies produced
for inspection and will enable appellate review of any permanent filing orders without creating
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new electronic documents. Accordingly, Petitioner is granted provisional permission to file under
seal, subject to objection by Respondent and the Court’s review under Shane Group and related
precedent. Attention of counsel is directed to Fed. R. Civ. P. 5.2(d) which codifies the Court’s
discretion to order redacted copies of documents filed.

August 17, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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