July 13, 2017 - The article, "2nd Circ. Reins In Judicial Oversight Of DPAs," by John Wood was published in Law360.
There is great interest in whether the media and the public will be able to get access to independent corporate monitors’ reports. As I discussed in an article in Law360 in April, the mere possibility of public access to such reports threatens to create a chilling effect on the work of monitors, who rely on the ability to address sensitive and confidential information in their reports. A few recent cases created uncertainty regarding the confidentiality of these reports. On Wednesday, the Second Circuit gave some comfort to those concerned about the possibility of public access to the reports, by holding that monitors’ reports created pursuant to a deferred prosecution agreement are not judicial records and therefore are not subject to a common law or First Amendment right of public access. But the court did even more than that and curtailed judicial oversight of DPAs generally, holding that a district court’s main function is to verify that the DPA was entered into in good faith rather than to circumvent the Speedy Trial Act. While the Second Circuit decision is highly compelling in rejecting the claimed common law and First Amendment rights of access to the reports, the court expressly noted that its opinion did not address claims of access under the Freedom of Information Act. Thus, some uncertainty regarding public access to monitor reports remains, even in the Second Circuit.