In an important win for an Arent Fox media client and the public's right of access to judicial documents, a federal judge on August 11 ordered federal prosecutors to unseal redacted FBI affidavits in support of two seizure warrants issued during a government investigation of Internet gambling. The client operates a Web site and publishes a newsletter, both of which cover the gambling industry.

Citing the common law right of access to judicial documents, Judge Laura Taylor Swain of the US District Court for the Southern District of New York granted the motion filed by Arent Fox to unseal the affidavits upon which warrants authorizing the seizure of several bank accounts were based.

The decision is noteworthy because, as Judge Swain wrote in her opinion, “there is a dearth of case law relating to public access to seizure warrants issued in connection with civil forfeiture proceedings.” There have been very few cases in the pre-indictment phase where the press has successfully persuaded a federal judge to release criminal enforcement information relating to an ongoing investigation in the face of prosecutors' objections.

Prosecutors opposed Arent Fox's motion, unsuccessfully arguing it would be premature to unseal documents because the government's investigation was ongoing and it had not yet formally filed any forfeiture action.

Judge Swain wrote, however, “There can be no doubt that a court's determination that a person's property may be seized involves adjudication of that person's substantive rights, or that information upon which the court relies in making the determination directly affects the adjudication. The affidavits at issue here contain the information forming the basis for the probable cause determinations that were prerequisites for the issuance of the seizure warrants. The common law presumption of access to the affidavits is therefore entitled to great weight ... The Court is required to order disclosure absent compelling reasons to deny access and even then must employ the least restrictive possible means of doing so.”

Accordingly, the court granted the movant's motion to intervene and unseal redacted versions of the warrant affidavits.

Arent Fox associate Matthew Trokenheim appeared in the Southern District on behalf of the client.

To read the full opinion, please click here.