in opposition to the pending motion in which persons on behalf of petitioner have taken actions to discourage cooperation; that disclosure of numerous potential witnesses could result in their unwillingness to cooperate with the government; and that the scope of the investigation would be revealed so as to give petitioner premature guidance concerning potential charges.
I have also considered whether portions of the affidavit could be disclosed without the difficulties recited above. I agree with the government's position that the redaction would entail such a large portion of the affidavit that it is not a practical alternative. It is simply not a realistic solution in light of the complexity of the investigation, the interrelatedness of the material contained in the affidavit, the numerous witnesses involved and the privacy interests at stake.
By the same token, EyeCare has not persuasively articulated a need for the affidavit at this time. EyeCare's Fourth Amendment right to be free from unreasonable searches and seizures is one that it is entitled to vindicate. This inheres with the necessity to see the affidavit at some point even if charges are not ultimately filed. But, as indicated above, denial of access to the affidavit at this time does not impair EyeCare's right to due process of law.
Finally, the motion entails issues concerning the handling of sealed warrant materials for which clear rules have apparently never been set in this district. At present, there is no public record of this warrant application, the issuance of the warrant, its return, the inventory, the motion to seal or the order to seal, including its duration, because it has, according to custom, been held in chambers by the courtroom deputy clerk to the issuing magistrate judge. Clearly, under Rule 41(g), the warrant, the return, the inventory and all other papers in connection therewith should be filed with the clerk, in the Clerk's office. In my view, where a motion to seal the affidavit is made and granted, the warrant, the motion to seal, the order to seal, the return and the inventory, are presumptively available to the public, including the movant, and must be placed in the court file. Any broader scope of sealing must be addressed in a motion to seal.
For these reasons, the motion to unseal the affidavit is denied. The clerk is directed to place the following documents in the public record: The warrant, the motion to file under seal (November 15, 1994); the order granting the motion and the order to seal (November 18, 1994); the motion to file in camera, and without petitioner's review the supporting affidavit of government's motion in opposition to motion to unseal (February 10, 1995), the order granting said motion, and the order to seal (February 10, 1995). The order to seal of February 10, 1995 is hereby modified so that it shall expire at the same time as the order to seal the application for the warrant and the affidavit. This order is hereby stayed for ten days to permit the government to seek review in the district court if it so desires.
JOAN HUMPHREY LEFKOW
Dated: June 7, 1995