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APPLICATION OF CBS

United States District Court, Northern District of Illinois, E. D


June 17, 1982

IN RE THE APPLICATION OF CBS, INC. UNITED STATES, PLAINTIFF,
v.
PIERCE L. SHANNON, DEFENDANT.

The opinion of the court was delivered by: Bua, District Judge.

ORDER

The matter before the Court arises out of the investigation, and subsequent indictment, of various individuals who have been accused of violations of Title 18 U.S.C. § 1341, 1962(c), and 1963 in connection with various activities conducted before the Cook County Board of Appeals. On February 11, 1982, a sentencing hearing was conducted in the case of The United States of America v. Pierce L. Shannon, 81 CR 478. In that hearing, certain portions of various tape recorded conversations were played in open court. The conversations which are the subject of this motion transpired between Defendant Shannon and Donald Erskine, a former employee of the Cook County Board of Appeals.*fn1 Before the Court is the application of petitioner, CBS, Inc., for production and copying of the original tape recordings of conversations involving Defendant Shannon which were played, or the contents of which were read, in open court, and any other portions of the tapes included in transcripts which were disseminated to the media. The United States Attorney, and Defendant Shannon, have objected to the production of these recordings. For the reasons which follow, the application of petitioner CBS, Inc. is granted.

The United States Attorney, in its objection to petitioner's application for production, argues that the recorded conversations may prejudice the rights of certain individuals who are presently under investigation but not yet subject to criminal proceedings. The government argues that while this factor is admittedly "speculative," the right of third parties to a fair trial is the predominant issue.*fn2 Defendant Shannon argues that the tapes in question are not judicial records, that the rights of third parties would be prejudiced, and that the tape recordings were obtained in violation of Ill. Rev.Stat. CH 38 § 14-1 et seq. Petitioner argues in response that there exists a strong presumption in favor of public access and that respondents have failed to demonstrate circumstances which would warrant nonproduction.

The Court agrees with petitioner that there exists a strong presumption in favor of public access to judicial records.*fn3 In Re Applications of Video-Indiana Inc., and Mid-America Radio, Inc., U.S. v. Edwards, et al., 672 F.2d 1289 (7th Cir. 1982). This presumption may be rebutted when there are conflicting interests between the public right of access and a defendant's constitutional right to a fair trial. The balancing of these interests is committed to the sound discretion of the Court. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). While the Court may deny access, the burden is upon the party seeking to interfere with this common law right to demonstrate that justice requires the denial of access. The Court may not, however, deny access on the basis of unsupported hypothesis or conjecture. In Re the Application of Video-Indiana, Inc., and Mid-America Radio, Inc., U.S. v. Edwards, et al., 672 F.2d 1289 (7th Cir. 1982).

In the present application, the government admits that the possible prejudice to the right to a fair trial of those yet to be indicted is highly speculative. Defendant Shannon has already pleaded guilty and his sentence has been imposed. His interest in the matter is therefore minimal. Under these circumstances, the Court finds that the respondents have failed to demonstrate that any prejudice to the right to a fair trial of possible third parties will result if petitioner's request is granted. In addition, there are no allegations that petitioner's motivation for production is to utilize the information sought "to gratify private spite or promote public scandal . . . or as sources of business information that might harm a litigant's competitive standing . . .": Nixon v. Warner Communications, 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). Furthermore, considerable public access to the contents of these tapes has already been provided by way of printed transcripts.*fn4 The public interest in access, however, is particularly strong where, as in the present case, the materials sought are related to the corruption of a public agency. For these reasons, the Court finds that respondents have failed to meet their burden of demonstrating that denial of public access is necessary and therefore the Court grants petitioner's request for production and copying.*fn5

IT IS SO ORDERED.


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