always reserve five minutes of my time for rebuttal from me you may know my name is jason forge i'm here on behalf of the plaintiff opponents and i really appreciate the opportunity to address your honor's this morning because it is absolutely essential to make clear how limited the belief is that we are seeking here we have winnow down what we are seeking to the point where there really is no room for honest debate so long as we all understand what it is we're talking about here we have reduced our request to what is let him or what amounts less than three complete sentences we have presented these sentences  in our brief and mr ford let me suggest this to you mr this isn't well we don't want much argument for us either stuff in connection with the present reporter's privilege george isn't and all of us have been district judges all of us have seen tons of pre sentence reports all of us have handled objections so we come from experience and when a probation officer prepares a pre sentence report and the parties then under the rule are given the opportunity to object to things that are in that person's report that is not a sentencing memorandum isn't won't be never will be it's something it's an objection that you are filing and so you have to at least from my perspective you have to convince us that while you seem to agree you can't get the p s r you have to convince us why you would get something in connection with the objections to the p s r and my point is this is an objection by label only and if you look at the substance of the language we're talking about here even the probation officers cover letter it's contained in the document that was filed in response to the p s r the draft the initial draft of the p s r that's part of the p s r process no matter what label you might choose to attach to it if you've ever done any criminal work at all have over twelve years experience as a federal prosecutor i practiced criminal law before that i teach criminal law now i've got twenty years from law experience and i'm telling you i have never ever seen a situation like this i've worked on  national security cases game cases kiddie porn cases of never seen a situation like this where both sides do such a clear end run around the public's right of access by submitting their positions not publicly but submitting their positions on the seriousness of the offense to the probation officer as a proxy that's and that's what i'm talking about here what happens in the district that i come from and every single case there now be in the districts that you're from and i can't speak for judge donald or judge for hundreds but that's just this is just the way it works that every single there's no publicly made argument about the serious is the offense your honor i've never seen it before and i've i didn't say there's no publicly made argument if something comes up in open court you can use i think this judge graham right you can use the comments that are in the transcript from the sentencing proceeding that's not confidential it's what's submitted to the probation officer but my point though your honor is what is submitted to the probation officer is simply the party's position regarding the seriousness of the offense here that's that's it that's the only thing and your honor they don't it's not as if they submitted something else publicly and in anguish in a p s r you don't like it you object to it you do that in writing you try to work it out with the probation officer it's privileged the point though your honor is the parties should have and they were required to the government particularly was required to submit publicly its position on the seriousness of this offense that it wanted the court to consider when rendering a sentence here the first amendment right of access to sentencing proceedings and documents submitted for sensing proceedings will mean absolutely nothing if the government simply has to present something to the probation officer say pass this along to the judge there in every case that i've ever worked on if a defendant didn't want to come out or if the government didn't want to come out that this particular defendant had a history of molesting dozens of children and they want of the judge to go along with a much more lenient sentence that would be appropriate simply submit that information the probation officer and the public is never the wiser the public has no idea of assessing the appropriate sentence because the parties hid that information from the public that is not there the first amendment right of access to common law right of access cannot be so easily defeated because then it ceases to exists and what we have here is this is not a situation where the what was objected to quote unquote objected to and the government's letter said commons not objection because it was after the deadline for objections in the porch what you want to do is to get these these witnesses well what there is your honor is a terribly overly broad local rule and i was pilloried one year ago for saying this is this is i've never seen a local rule like this is being exploited in the situation to keep from the public information that should be available the defense pilloried us for for criticizing this local rule and then lo and behold once later after this local rule been in effect for years the sun just out changed the local rule but it still we have a district court ruling saying no this can't be disclosed and we have the old local rule and we have the responses from the defense and from government counsel saying they can't disclose th us under threat of contempt so that begs the question if you were to go to them and say i want to know what you said to the probation officer in a submission i assume you're going to get exactly the response that you've just given us i get that but you don't that isn't the way you asked the question i don't understand why you can't go to the government and have them independent of this criminal case tell you what their position is as to whether birds died well first of all you don't it's not that easy to get discovery from from the government we can't just depose an assistant u s attorney because we could be would like the information or there are many many hoops you have to be we have to pass through and i agree with that but you all you already have the  trial judge in a public transcript paraphrasing the government's belief in that regard right paraphrasing it without explaining it and without giving details yes your honor that is correct well that what you you start out by saying gee we only want a couple  about the government's belief in this case you have that right paraphrased yes now you're suing scott's critics say you can take scott's depositions that's correct now whether they want to say that  for the life of me i can't figure out what possible relevance scott's commenting on what the government's position is could possibly have in a civil case involving class or an occasion you are is an acknowledgment of what the government's position was and what's the relevance of an acknowledgment by the scotts of what the government's position the whole point of it is materiality would it be immaterial to a consumer that the government determined that this illegally poisoned bird food had harmed not only fully poisoned many birds and was responsible for the deaths of others would that be material to a reasonable consumer isn't isn't the government's isn't scots comment or whatever you want to call it and what the government's position apparently is classic here say no your honor it's not because i didn't mission it is not your say and here's why because it's it is not a situation where what the government said has to be true we are not offering it for the truth of the matter asserted we are offering it for the point of a reasonable consumer looking important us product that would be important to them that the government with all of its resources with years of investigation reached this conclusion whether or not the reclusion is accurate is not what we offered for their immune title to a limiting instruction the point is that would be important to a reasonable consumer because they are not going to list an expert may please the court jeff jones on behalf of scott's miracle gro as i get a little older i find myself wanting to cut to the chase and it seems to me the core issue here is what are these materials and did judge graham properly characterize them as interpol to the pre sentence report process and on that issue your honor judge graham clearly got it right is there some reason why the plaintiff's counsel here can't take the deposition of somebody in your company and ask them if they know what the government's position is on whether birds died and obviously i'm oversimplifying this it's not a reason why they can't take that deposition and ask that question not only could they do that your honor by way of asking scott's what what what anything with respect to a deposition that they want to ask in and whether it gets into a particular comment or not but essex pacifically is there any objection that you can think of that you would have to posing the question to the appropriate person within scouts as to whether they know what the government's position was on the danger proles by the use of these chemicals and if so what was that position if the question related to what the e p a s position was by way of for you or otherwise i don't think there would be an objection there if the question was specifically what did the government communicate to preach to the probation officer as part of the pre sentence report yes i do think that our position is that process the information by which both the government you saying you don't know what the government's position is outside of the criminal case we know that the e p a the government has certain documents so in that regard yes and we do know what the u s attorney talked about both at the in camera said you've said in all of your material there are alternative ways that they can get this information so there's no special need that your position right so if that's the case we're trying to figure out what other way can they get to test that position that you've taken so i've tried to take it down a path of just asking your client a question in a deposition and it sound is as if i got to a dead end there well the information your honour's available in three or four other ways judge graham started at a higher level and we totally agree with him he said on the issue of whether or not this is harmful or not that is available to the plaintiffs through a myriad of ways they can get their own experts they can study the e p a regulations how is their expert going to be able to testify as to what the government's position is well your honor judge graham i think properly analyze the question which is it's not what was the government's position with respect to the probation officer it's whether or not the bird food is harmful and whether or not the government has records in its files from the e p a in connection with its own analysis as to whether it's harmful and you're saying that whether us your company or whether you whether they hire an expert that asks the same questions you wouldn't object to that as long as it wasn't your honor i think that's a yes and no we would not object to what's obviously already public judge graham already said there was a disagreement between the parties as to the risk of the birds going back on the thing that you have no objection to them getting their own otherwise you don't want that government bolstering position to be used to support his claim so your your company would have the pot of whatever they testified to but your company would not want to be in there saying that in this criminal hearing the government found or concluded whatever they concluded that's what you don't want  the fact that scots and the government disagreed over the risk of harm to birds as part of the process that's available to everyone what we would object to is we have steadfastly taken the position that the actual communications and by the way your honor the communications we're dealing with are not sentencing memos at all they're there actually do your probation officer we'd like you to edit your report as follows that's the communication were you and you and the government disagree you took different positions but ultimately a position in the criminal process prevailed right judge graham found that he was not going to make any ruling as to that issue and i mean we agree your honor with the comment originally which is whether the attorney whether the u s attorney's office believes something in a criminal matter or whether scott's said the u s attorney believes something in a criminal matter they could  documents things that are from the government and i assume when the governments threatening you with prosecution they provided you with there there have been all right there are multiple four requests with lots of communications from the government those of already been exchanged and and those of already been produced and your honor the key question in your real objection is just what you submitted to the program officer should not only that your honor but if you look at every rule in every case that's been cited to this court that question which is do it den containing objections or comments about the pre sentence report are they protected there is no authority cite the court that would suggest otherwise i want to go back to how else they can get this information when you're submitting something to the probation officer that says what your understanding is of the government's position you had to have learned that somehow right yes and was that in the form of an e p a report or how did you know what their position was the government sun a letter to the probation officer in that you're saying you had no idea what the government's position was on killing birds before they objected or responded to your objection come on that's not possible well your honor if you actually the f d a had previously classified this recall is what's called a class three which is not a risk so the f d a had looked at it and they had come to a conclusion but with respect to your honor there's certainly been phone calls between the criminal attorneys in the u s attorney's office where they had had discussions about the issue but but those things are memorialized in notes are they discover we have produced the communications question is if they exist are they discoverable yes we've produced them we've produced all communications to the government in connection with the criminal proceedings that we were able to find the only communication that you don't want to produce is what the government sent to the probation officer as part of the objection process and that was made in the discussing the report the addendum which contains the comments and objections about the pre sentence report is part of the report and is accorded the same confidentiality protections so if  take into account what you just say if we did the objection letters should be treated like something memoranda which i think you say they should be can you show that refusing disclosure is essential to preserve somehow your interest and if it narrowly tailored well yes i think we have three sources for that the u s probation office has has submitted a conclusion in the record that it is important to the confidentiality process and that it would have a chilling effect the u s attorney's office submitted a filing below that said the confidentiality is important and it would have a chilling effect as well that they filed a motion in support of rule thirty two in front of judge graham so both of those offices specifically concluded it would have a chilling effect or a fact on future cases in which it would chill the free flow of information we certainly believe that to be true as well and this court's case in siler and a number of other cases that we cited all underscore the importance of that issue and your honor i would ask you to just think about the ramifications the probation officer interviews the defendant the interview notes about what the defendant said to the probation officer somehow discoverable the probation officer has a conference call with the parties to discuss objections to the report is the conference call with the probation officer discoverable the probation officer is supposed to conduct its own investigation of what the parties believe and what they have comments or objections or revisions to their report with all of that and i want to stop you because taking into account the truth of everything you say is judge mckeague said earlier with all of that generality in the written documents the court hears the objection in the public setting in the courtroom and so even though those documents may be confidential isn't it the case that the discussion in the argument about those documents unless is an a and within a thiel setting that those arguments that discussion that back and forth takes place that end up in just a public setting unless the court applies of but you know your honor in this case the discussion about the objections to the pre sentence report including the communications that issue took place in an in camera hearing and they're no longer appealing that hearing and they were the probation officer then actually amended her report in light of the communications issue so she actually changed the report to accommodate these objections but so you have the in camera fitting here but le a hypothetical if you had these objections and you had them in the normal hearing fitting with your argument be the same because there you would have a record going and people arguing that sections and you didn't have it in the camera hearing so how would it change your classification of these documents if this is argument to the judge about increasing a sentence or decreasing a sentence yes they have a lot of cases a say that falls into a different bucket absolutely there's two tracks right track one is judge you should increase the sentence you should decrease the sentence you should you should increase the guidelines or whatever it's cracked to track jury proceedings in the sense that that process the process by which the probation officer creates a report gets objections resolved the objections had the conference call interviews the defendant that is the confidential process that that  be but you know sometimes when the probation department is judgment weeks earlier when pani request they some objection to change and there's resistance to that that's played out in the courtroom then and the court your honor there's no question that in the connection with sentencing memos there may be discussions about where the sentence goes up or down and there may be allusions to the pre sentence report but that is usually done with the court's approval the government and the defendant as well in  situations like this the rule clearly provides that the probation report the a den dome and the related documents are all treated as confidential documents actually missing something here if there's an objection the court has two choices the court can rule on the objections and decide who's right or wrong that happens generally in open court least as far as i know or the cork and sat on need to resolve that objection because it isn't going to be make any difference to the particular sentencing and that seems to be what happened here because the court said it doesn't matter scott's pled guilty don't need to get into that my right about that wrecked so we don't have all of what the plaintiffs want here that would otherwise presumably have gotten into the record had this had the judge found it necessary to actually rule on the objection is that right that's true i only know that we're trying to figure out to close the loop here whether there is some other way that they can get this information the government's letter because june fourteenth comes from a senior trial attorney from d o j and it says the government believes and then it goes on to say what it is you're  fighting about are you saying that that the government's belief whatever it may be does not exist any place else other than in this letter it does your honor because it's in it's in judge graham's sentencing hearing and there is some discussion back and forth about how the parties did so the government has never memorialized what this belief is aside from this one and a half page document is that right other than the discussion at the sentencing hearing in terms of memorialized in terms of a letter or or a filing no i don't i didn't ask you about the letters and filings i asked you have they memorialized it anywhere anytime for any purpose surely there must have been studies about this stuff before before your committee got indicted i'm trying to think back your honor through the for your requests there were a lot of documents that were provided by the government on this topic and believe i don't i want to be careful i believe those documents do discuss that the government believes or an agency of the government believes that there is harm i'd have to go back and check the documents because there's various productions over time but the foyer requests that ask for documents from the government i believe there are documents that would be responsive to the court's question in any event you say whatever they are you've given them that we've done for your request and they've done for your press and we've given mckeague i can answer your question without equivocation the answer is no the government did the government moralize this position its belief anywhere other than in this letter the answer is no the defense have not provided that to us and you experienced court the senior trial attorney he didn't come up with this he got this from somebody within the government he didn't study this stuff so somebody told him that right presumably a compilation of people talking to you can't find out who told them that or what the basis of that was is that your basic beefier that's that's correct your honor i we've done multiple for your requests we have received documents from the defendants i have done everything possible to get this information if you taking the deposition  no we haven't you know we haven't your honor the reason the bottom line is because the defendants and now tacitly embraced by the district judge have invoked this whole notion that it's contempt of court even convey this information they accuse us of committing an act of contempt by submitting this to a district judge under seal asking for permission to use it big they accused us of a contempt of court by doing that because of that your hon say that you need to see that accurate you could ask or did you get the information and your honor what i've been told is that no one is going to discuss this belief with us because of th stigma that has been attached to it because of the improper local rule that was in effect it is since been amended and because of the accusation of an act of contempt of court this is this is a situation where we are clearly talking about as judge mckee point out this is the government's belief this is has this does not implicate anything about the reasons why p s hours are kept confidential and we know those reasons there for privacy concerns for a defendant or a defend family they're for free flow of information for sources of information for confidential sources or defendants contrition and therefore the government's interest in preserving ongoing investigations and grand jury secrecy those are the three bases of a single case where somebody has successfully obtained an objection to a p s r no your honor but i also don't have a single case where the party's only written submission of their positions was done using the probation office as a proxy ever i've never seen it before they submitted i've seen cases where the parties they just thinking back probably happened eighty ninety percent of the time there was exchanges between the government and the defendant in connection with the p s r i got it looked at it but that's not up in the sentencing in the end the government said whatever they wanted to at sentencing sometimes not anything especially junk which he does not what i said i said i've never seen a case where the parties have written submissions on their positions were going the seriousness of offense but the only place it exists is in a letter to the probation officer as a proxy rather than filing in open court or know what it means here is we have an eleven c one c plea agreement and we have a mandatory victim rosa to should act and we have an end run so the public doesn't find out just how serious this crime was and we have clearly established precedent showing how important it is to shine a light on sentencing proceedings to shine a light on the party's advocacy submissions used in sentencing proceedings that court should go over any time the press wants something it will use the press and study you the court is going to have to conduct a hearing and determine whether something fits in this category or that category that's contained within objecting to a p s r no your honor it was my only and if it's really important to a plaintiff's lawyer someplace and they can't get it someplace else then we should turn it over well your honor i'm not going to take the bait on an apocalyptic consequence from this thing the reality is the government set forth its position the quote unquote objection is simply that the p s r did not accurately convey the government's position not the p s r not that the probation officer reached an erroneous conclusion the government's position regarding the seriousness of the offense and yes i believe that every district court has an obligation to make sure that when the parties submit something advocating their position concerning the seriousness of the offense to influence the district court's decision as to whether or not to accept an eleven c one c plea agreement that should be public that must be public because if it's not we have no first amendment right of access to sort of the procedure is if the basis of the argument that in this case that there is an overarching compelling public interest in exactly because there is a compelling need here you sought judge mckeague when you tried to get a straight answer on the question of getting this information we cannot and there is nothing counterbalancing that there is unquestionably a compelling need here there's nowhere else that in this exist this information exists and there's there's nothing that weighs in favor of it of keeping it secret because none of those concerns to support the confidence your company g l d of p s ours apply here to this information the government's belief regarding the seriousness of this offense this is yes judge down this is a compelling need and there's nothing counterbalancing that so even if even if i can't convince you to look beyond the label and look at the substance of it and say this is an advocacy submission there's still a bundle in case law saying that p s even even a p s r can be revealed and here we have a corporate defendant we have no private information being disclosed we have no implications were guarding ongoing investigations no grand jury information and we unquestionably have a need those two things don't balance out they weigh heavily in favor of disclosure here and so i would urge your honour's even if you don't accept my argument about this being the one of a sentencing memorand advocacy submission even under the case law is examining disclosure of p s r materials this is a very limited request it implicates nothing that should be maintained for confidentiality purposes and it was an extremely compelling me because it concerns health issues and in the brown and williamson case this court explained how important is for the public to have a right of access and those types of settings thank you donors all right thank you case will be submitted