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16-2935

Doe v. Lerner 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 20th day of April, two thousand seventeen. 

PRESENT: JOSÉ A. CABRANES,

 ROSEMARY S. POOLER, 

 DENNY CHIN, 

Circuit Judges. 

 

JOHN DOE, 

Movant-Appellee, 

V. 16-2935 

RICHARD E. LERNER, 

Respondent-Appellant, 

FREDERICK MARTIN OBERLANDER, 

 Appellant, 

ASSOCIATED PRESS, 

 Intervenor, 

RICHARD ROE, WILSON, ELSER, MOSKOWITZ,

EDELMAN & DICKER LLP, JODY KRISS, 

 Respondents. 

 
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FOR APPELLANTS: Richard E. Lerner, Esq., pro se, New York, 

NY. 

 Frederick M. Oberlander, Esq., pro se, 

Montauk, NY. 

FOR APPELLEE: Robert S. Wolf, Moses & Singer, LLP, 

New York, NY. 

Appeal from an order of the United States District Court for the Eastern District of New 

York (Brian M. Cogan, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the June 21, 2016 Order, submitted for decision on April 10, 2017, is 

AFFIRMED. 

Appellants Richard E. Lerner and Frederick M. Oberlander, attorneys proceeding pro se, 

appeal from a June 21, 2016 order partially denying their motion to unseal documents in a civil 

contempt proceeding based on their alleged dissemination of sealed documents in violation of court 

orders (the “Order”). They also appeal from the subsequent denial of reconsideration, but have 

waived review of that order by failing to challenge it on appeal. See Norton v. Sam’s Club, 145 F.3d 

114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and 

normally will not be addressed on appeal.”). We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal. 

As a threshold matter, we conclude that we have jurisdiction to review the Order. Generally, 

we have appellate jurisdiction over “final decisions of the district courts.” 28 U.S.C. § 1291; see In re 

Roman Catholic Diocese of Albany, New York, Inc., 745 F.3d 30, 35 (2d Cir. 2014). A final decision “ends 

the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers 

& Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (internal quotation marks and citation omitted). There 

are, however, exceptions to the final-judgment rule. To qualify as an exception to finality under the 

collateral-order doctrine, “the interlocutory order must (1) conclusively determine the disputed 

question, (2) resolve an important issue completely separate from the merits of the action, and (3) be 

effectively unreviewable on appeal from a final judgment.” Schwartz v. City of New York, 57 F.3d 236, 

237 (2d Cir. 1995). We conclude that the partial denial of the Appellants’ motion to unseal qualifies: 

(1) it conclusively determined the dispute over the sealed documents, (2) the sealing issue was 

distinct from the merits of the action, which concerned whether the Appellants violated court orders 

by disclosing certain information to the press, and (3) it is effectively unreviewable on appeal from a 

final judgment. See id.; United States v. Erie Cnty., New York, 763 F.3d 235, 238 n.5 (2d Cir. 2014) 

(exercising jurisdiction over denial of motion to unseal under the collateral order doctrine); see also 

United States v. Cojab, 996 F.2d 1404, 1406 (2d Cir. 1993) (same). 
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We review for abuse of discretion a district court’s decision to seal proceedings or place 

documents under seal. Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013). The public 

has a First Amendment right as well as a common law right to have access to judicial documents. Id. 

at 163-65. The First Amendment right applies to judicial documents implicated in civil contempt 

proceedings only when those documents “are derived from or are a necessary corollary of the 

capacity to attend the proceedings.” Id. at 164 (internal citation, quotation marks, and alterations 

omitted). Only documents necessary to understand the merits of a civil contempt proceeding are 

covered by the First Amendment. Id. Even when the First Amendment right applies, it creates only a 

presumptive right of access, which can be overcome by “specific, on-the-record findings that sealing 

is necessary to preserve higher values . . . [and] is narrowly tailored to achieve that aim.” Id. at 165 

(internal quotation marks omitted). The common-law right likewise applies only to judicial 

documents; however, unlike the First Amendment right, it attaches automatically but is balanced 

against “countervailing interests favoring secrecy.” Id. 

We conclude that neither the First Amendment nor the common law right of access is 

implicated here. None of the sealed documents were necessary to understand the merits of the civil 

contempt proceeding and there is a strong interest in secrecy because both John Doe’s safety as a 

cooperator and the Government’s interest in protecting the identity of cooperators are implicated. 

See id. at 164-65.The District Court created an unsealed docket for documents necessary to 

understand the merits of the civil contempt proceedings, and properly determined that sealing was 

appropriate for John Doe’s Pre-Sentence Report (“PSR”), documents containing information 

sourced from the PSR, documents sealed in related proceedings, and documents submitted by the 

United States Attorney’s Office addressing the John Doe’s cooperation. See id. 

The Appellants raise no successful challenges to the propriety of the District Court’s Order. 

First, they challenge specifically the sealing of document 24, which is a letter from the Government 

about the continued threat to John Doe’s safety. Even assuming that the letter is a judicial 

document, for the reasons discussed above, we conclude that its sealing does not violate the right to 

access. See id. Second, the Appellants’ general challenges to the District Court’s Order fail: the record 

shows that the District Court unsealed a large portion of the docket, correctly addressed the burden 

of proof as belonging to the proponent of sealing, and accurately determined that any arguments 

concerning the Appellants’ right to disseminate information were irrelevant to the question of 

sealing. 

CONCLUSION 

We have considered all of the arguments raised by appellants and find them to be without 

merit. For the foregoing reasons, the June 21, 2016 Order is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk