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1 IE{112612017 l0:18:13 PM,6nl|uaBy: N. LOWCOMMONWEALTH OF PENNSYLVANIAIN THE COURT OF COMMON PLEAS OF PHILADELPHIA COI,JNTYCOMMONWEALTH OF PENNSYLVANIA :RespondentPHILADELPHIA COURT OFCOMMON PLEASCRIMINAL TRIAL VEASY,PetitionerORDERAND NOW, this day of2017, upon consideration ofPetitioner's Motion to Unseal PCRA Action, it is IIEREBY ORDERED THAT TIIEMOTION IS GRANTED. The clerk shall forthwith unseal Petitioner's PCRA action and ensurethat the docket and all filed documents in the above-captioned action is open to the the Court:JCOMMONWEALTH OF PENNSYLVANIAIN THE COURT OF COMMON PLEAS OF PHILADELPHIA COLTNTYCOMMONWEALTH OF PENNSYLVANIA :RespondentPHILADELPHIA COURT OFCOMMON PLEASCRIMINAL TRIAL DIVISIONcP-51-cR-641521-1992 WILLIE VEASY,PetitionerMOTIONTO UNSAI, PCRA ACTIONP etitioner Willie Veasy, through his attomeys, James Figorski, Esq., Marissa Bluestine,Esq., and Christine Levin, Esq., move to unseal Mr. Veasy's post-conviction.}

2 On June 23,2017, Mr. Veasy's counsel filed a PCRA petition under The basis for the PCRA petition is the discovery ofwithheld favorable andmaterial evidence in the John Lewis homicide investigative file. Mr. Lewis was the victim of themurder for which Mr. Veasy was The Lewis homicide file was provided to counsel for Anthony Wright indiscovery. Mr. Wright is litigating a civil rights action in the United States District Court for theEastem District ofPennsylvania and sought the Lewis homicide file and others to prove hisMonell Mr. Wright's counsel provided the Lewis homicide file to the PennsylvaniaInnocence Project's legal director, who also represents Mr. Veasy. Ms. Bluestine discoveredevidence in the Lewis file favorable to Mr. Veasy that was not previously A plaintiff asserting a civil rights action under 42 $ 1983 against a local govemment ormunicipality must prove that "execution of a govemment's policy or inflicts theinjury.

3 " Monell v. New York City Dep't of Soc. Servs.,436 658, 694 (1978).5. Before counsel for Mr. Veasy filed the present PCRA action, the PhiladelphiaDistrict Attorney and the City ofPhiladelphia sought to retroactively designate the Lewis fi[e andother homicide files provided to the Pennsylvania Innocence Project as confidential. To protectthe Commonwealth's interests, Mr. Veasy's counsel sought permission to file the present PCRA petition under Until the controversy conceming the homicide files was settled in federal court,this court sealed Mr. Veasy's PCRA On November 20,2017, Judge Pratter of the District Court for the EastemDistrict of Pennsylvania ruled that the homicide files, including the Lewis file, are notconfidential (see Exhibit A).8. Civen that the basis for the request to seal the pleading has been removed byJudge Pratter's order, there is no longer any reason to maintain Mr. Veasy's PCRA in sealedstatus as "the courts of this country recognize a general right to inspect and copy public recordsand documents, inc luding judicial records and documents.]

4 " Commonwealth v. Unshur. 924 ,647 ( ) (citing Nixon v. Warner Communications. Inc.,435 589, 591 (1978).See also, Com. v. Contakos,499 ,345,453 578, 580 (1982) ("In Pennsylvania itis specificolly and constitutionally mandated that courts shall be open. In other words, the publicshall not be excluded from trials, the courts shall not be closed.") (emphasis in the original).9. Mr. Veasy respectfully requests that this court remove the sealed designation fromMr. Veasy's PCRA submitted,/s/ James FieorskiJames FigorskiPa. Attomey No. 200549 Dechert LLPCira Centre2929 Arch StreetPhiladelphia, PA :215-994-2222 Email: ACase 2:16-cv-05020-GEKP Document 105 Filed tLlzOlLT Page 1of L5IN THE UMTED STATES DISTRICT COURTFORTHE EASTERN DISTRICT OF PENNSYLVAAIIAANTHONY WRIGHT,Plaintffiv,NO. 16-s020 CITY OF PHILADELPHIA et al., , J. NoVEMBER 20, 2017I. BackgroundAnthony Wright sued the City of Philadelphia and several former police officers foralleged constitutional violations arising out of his l99l arrest, 1993 prosecution, and 25-yearimprisonment for a rape and murder he did not commit.)

5 In 2016, a jury acquitted Mr. Wright ofthe rape and murder after a retrial that included DNA evidence not available at his initial December 2016, during discovery for this civil case, Mr. Wright requested files fromother homicide cases in which the same defendants had been accused of misconduct (the"homicide files"). On March l, 2017, the parties docketed their Confidentiality Agreement forthis case. The next day, after assistance from the District Attomey's Office, the defendantsproduced several of the requested homicide files. None was designated May, Mr. Wright showed the homicide files to representatives of the PennsylvaniaInnocence Project. Innocence Project attomeys had previously worked on those homicide cases,and Mr. Wright's lawyers sought their help to understand whether the files contained Bradyinformation that was never turned ACTIONCase 2:16-cv-05020-GEKP Document 105 Filed 77120117 Page 2 of 15On June 13, Innocence Project lawyers concluded that some of the files containedexculpatory evidence pertinent to the cases documented in the homicide files and filed state PostConviction Relief Act (PCRA) petitions to overtum convictions for those homicide days later, the defendants in this case retroactively designated the homicide files"confidential" under the Confidentiality discovery dispute ensued.

6 The defendants and District Attomey's Office (as anintervenor) filed a Motion to Enforce the confidentiality desigration, which this Court denied onAugust 23. Wright v. City of Philadelphra, No. 16-5020, 2017 WL 3620059 ( Pa. Aug. 23,2017). Meanwhile, Mr. Wright and the Innocence Project (as an intervenor) have filed Motionsto Strike the confidentiality designation. The Court held oral argument those motions onOctober 2. The Court now grants Mr. Wright's motion and moots the Innocence Project' Standard of Review and Allocation ofBurdenAccording to the parties' Confidentiality Agreement, the defendants bear the burden ofshowing why the homicide files are confidential. Cf. Pansy v. Borough of Stoudsburg,23 , 786-87 (3d Cir. 1994) (burden of justifying confidentiality is on parry seekingconfidentiality order).III. DiscussionMr. Wright and the Innocence Project have briefed three main arguments for why thehomicide files should or should not be confidential:A.

7 The defendants and the District Attomey's Office waived their claims The homicide files must be "personal" to be The homicide files do not satisfy the Pansy balancing test for 2:16-cv-05020-GEKP Document 105 Filed 77120117 Page 3 of 15In addition, the defendants and the District Attorney's OIfice now argue that the motions of bothMr. Wright and the Innocence Project are moot, given that the Court has denied the Defendants'Motion to Enforce. The Court will take each issue in , The defendants qnd lhe District Attorney's Of/ice did nol waive lheir claims pertinent part, the Confidentiality Agreement provides:If a party . inadvertently produces or discloses confidentialinformation, without marking it "Confidential" theproducing party or the DAO may subsequently designate thedocument or information as "Confidential" ..Mr. Wright argues that the defendants waived their right to designate the homicide filesas confidential. He points out that in February, the defendants said they would tum over thefiles; in March, they did so; and only in June, after the Innocence Project filed its PCRA petitions, did they claim confidentiality.

8 By waiting three months to assert confidentiality, argues, the defendants waived their rights to designate the homicide files as defendants and the District Attorney's Office (as an intervenor) counter with the textof the parties' Confidentiality Agreement. In the paragraph reproduced above, the agreementprovides that a party that "inadvertently produces or discloses confidential information .without marking it 'Confidential"' can still "subsequently designate the document or informationas 'Confidential."' The District Attorney's Office argues that it would make little sense for the' The parties also briefed the question whether the defendants' failure to assertconfidentiality in March was "inadvertent" enough to qualify for retroactive designation. In lightof the Court's opinion in August, however, counsel for Mr. Wright conceded at oral argumentthat this argument was no longer relevant. See Wright, 2017 WL 3620059, at *3 (" disputes that he and his counsel were even under this obligation [to use reasonable effortsto retrieve the documents] because Defendants produced the Homicide Files purposefully, notinadvertently.)

9 The plain language of the Confidentiality Agreement contemplates theinadvertent failure to designate as confidential documents produced purposefully.").JCase 2:16-cv-O5O2O-GEKP Document 105 Filed ltlz1lI7 Page 4 of 15agreement to provide for retroactive designations of confidentiality, "so long as they are notthree months after the fact." DAO Resp. to Pltf s Mot' Strike, at Court agrees with the District Attorney's Office. If it were possible to waiveconfidentiality by not asserting it at the outset, why would the Confidentiality Agreement includea way to retroactively designate confidentiality? Mr. Wright's definition of waiver would renderthe retroactive-designation paragraph superfl uous,B, The homicide files do not need to be "personal" lo be pertinent part, the Confidentiality Agreement provides:[T]he undersigned counsel . , , hereby consent and agree to thefollowing Agreement .. to protect from unauthorized disclosure,publication, and use information of a kind whose confidentiality isproperly protected under Rule 26(c) of the Federal Rules of.

10 In particular, (l) the personnel files and personal informationof the individual defendants in this action and (2) the medical,personal, and financial information of Plaintiff shall be deemedconfidential. Additionally, any social security numbers containedin any documents shall be deemed per se confidential..Mr. Wright argues that section 2 of the Confidentiality Agreement, reproduced above,demonstrates that only personal information may be designated confidential. Because thehomicide files are not personal information, he reasons, they cannot be District Attorney's Office counters that Mr. Wright's reading of the agreement is tooselective, Personnel files and personal, medical, and financial information are merely examplesof confidential information. The agreement uses the words "in particular" to show that personal,medical, and financial records are just the clearest cases of confidential information. Theagreement protects much more; the recitals at the beginning of the document explain that the4 Case 2:16-cv-05020-GEKP Document 105 Filed 77l2 OlL7 Page 5 of 15agreement protects "information of a kind whose confidentiality is property protected under Rule26(c) of the Federal Rules of Civil Procedure.