"All Non-Parties" "Are Ordered to Destroy All … Copies" of "Defendant's Sentencing Memorandum"

A curious order yesterday, from U.S. v. Teixeira (a case involving Jack Teixeira, a national guard member "who pleaded guilty to leaking highly classified military documents about the war in Ukraine"):

147 Oct 29, 2024 Judge Indira Talwani: ELECTRONIC ORDER entered. All non-parties who accessed or obtained copies of Defendant's sentencing memorandum or attachments thereto are ORDERED to destroy all electronic and print copies of these documents. The filings are sealed documents in accordance with this court's prior order 141. (Talwani, Indira) (Entered: 10/29/2024)

That can't be right, I think. (Disclosure: After seeing this order, I tried to figure out what was going on, and in the process obtained what appears to be a copy, from the CourtListener site, so the order would have technically bound me, alongside anyone else who likewise accessed the order.) Apparently, not long before, the court granted a motion to file defendant's full sentencing memorandum under seal; that motion read,

Counsel for defendant, Jack Teixeira, respectfully moves that this Court, pursuant to Federal Rule of Criminal Procedure 49.1 and Local Rule 7.2, allow the defendant to file its full Sentencing Memorandum, as well as Exhibits A and C thereto, under seal until further order of the Court.

As grounds, counsel states that Exhibit A to the Sentencing Memorandum is a neuropsychological assessment containing protected health information about Mr. Teixeira that should not be publicly available; Exhibit C is a copy of a report of the Inspector General of the Department of the Air Force, which was disclosed under seal as "Sensitive" discovery material pursuant to this Court's Stipulated Protective Order, dated, October 3, 2023 (Dkt. No. 111); and Defendant's Sentencing Memorandum contains quotations from these two exhibits. Counsel has conferred with the Government who assents to this request.

Consistent with the parties' discussion, Mr. Teixeira will thereafter file a redacted version of his Sentencing Memorandum, which will redact any information subject to the protective order except that which is publicly available from other sources. The parties intend to discuss and quote the findings of the neuropsychological assessment and its basis in their submissions but agree that the report itself should remain under seal until further order of the Court.

Somehow, though, the memorandum wasn't filed under seal or with redactions (though Exhibits A and C were apparently filed under seal).

But we won't get to hear more, I expect, about whether the order was permissible, because today the following order was issued:

148 Oct 30, 2024 Judge Indira Talwani: ELECTRONIC ORDER vacating Electronic Order 147 . The clerk shall update the docket text at 142, inserting the bracketed notations 142 [Redacted] SENTENCING MEMORANDUM, [142-1] [Cover Page] Exhibit A (Expert Report) Filed Under Seal, [142-3] Exhibit C [Cover Page] Exhibit C (Unredacted IG Report) Filed Under Seal. Docket entries 142, [142-1], [142-2], and [142-3] may then be unsealed. The remaining attachments to 142 shall remain under seal. (Cook, Savannah) (Entered: 10/30/2024)

I would have loved to know the backstory ….

Comments

[Flight-ER-Doc]

Slackness and lack of attention to detail by the judge?

[Mr. Bumble]

Incompetence?

[Noscitur a sociis]

Parties in federal court file their own documents electronically, through as system invented in the late 90s, with the interface that implies. If you’re not careful, it’s easy to accidentally not file something under seal or ex parte, especially if you practice in multiple districts. (Each district court has its own system, so they all look a little different.) It’s not too hard to get it removed and sealed once you notice, but if anyone outside the case has grabbed it beforehand (and in a case like this I’d expect some media are downloading everything), you’re kind of out of luck.

[loki13]

I want to think about this, but generally you can't enjoin the world.

There's a lot of non-parties out there.....

[Ridgeway]

Leaving aside the egregious overbreadth, I am kinda surprised that PHI and "sensitive neuropsychological information" could be redacted/sealed in the first place. I'd have thought that such information is contained in zillions of sentencing memoranda -- not just with insanity defenses, but every time a defendant uses the "I was abused as a child, please go easy on me" claim for a sentence reduction.

When I first saw the article, I assumed that someone had accidentally included some of the classified info in the memorandum, and that was what the judge was trying to protect.

[Bwaaah]

“There’s a lot of non-parties out there…..”

Indeed. My mitigation strategy was always to try to avoid being a party to a lawsuit. Looks like they’re moving to close that loophole.

For all who think they diligently engage in compliance: your confidence is baseless. You don’t even know where to look.

All your non-parties are belong to us.

lol

[Causter]

The unredacted memorandum appears to be available on RECAP. I wonder if people who download it now have an actual case or controversy against the judge, given the order was vacated.

[not guilty]

How does the District Court purport to exercise jurisdiction of non-parties? And how would the putative order be enforced against them?

While "an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings," United States v. United Mine Workers, 330 U.S. 258, 293 (1947), "[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U.S. 32, 40 (1940).

[KenveeB]

Sounds like somebody messed up and didn't file things under seal, the judge panicked and tried to fix it, then realized they were outside their authority and tried to pretend it never happened.