In re Dow Jones & Co.

Background

Dow Jones & Company asked a federal appeals body to disclose and give access to the report written by former Independent Counsel Robert B. Fiske. On November 3, 1994, the Court of Appeals issued an order denying that request and filed that denial under seal. Dow Jones then asked the Court of Appeals to unseal the November 3 order and filed a reconsideration motion. On November 22, Dow Jones asked this Court for emergency permission just to publish and report the sealed November 3 order and its contents.

Reasoning

The core question was whether this emergency request to publish the sealed November 3 order still needed the Court’s intervention. The next day the Court of Appeals issued a second order denying reconsideration and openly discussed the November 3 order and the reasons for keeping the Fiske report private. That second order was not filed under seal, and there was no indication Dow Jones was barred from reporting on it. Because the public order already discussed the sealed order’s content, the Circuit Justice concluded the emergency application to publish the sealed November 3 order was moot — meaning the immediate relief sought was no longer necessary.

Real world impact

As a result, Dow Jones may report on the unsealed November 23 order that discusses the earlier sealed decision. The ruling does not resolve the underlying unsealing request; the motion to unseal the November 3 order in the lower court remains undecided. This action resolves only the emergency request and does not decide whether the Fiske report itself must be released.