The legal standard governing a request for disclosure of objections to a presentence report (PSR) to a third party for use in related civil litigation; In re Hearst Newspapers, LLC (5th Cir.); United States v. Kravetz (1st Cir.); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of CA (9th Cir.); Principle that objections are prepared as part of the confidential process of creating the PSR; United States v. Pena (2d Cir.); Fed.R.Crim.P. 32; Whether the First Amendment was violated by keeping the objections confidential; Press-Enter. Co. v. Superior Court (Press-Enter. II); Whether confidentially violated a “common law right of access”; Nixon v. Warner Commc’ns, Inc.; Times Mirror Co. v. United States (9th Cir.); Whether the plaintiffs established a “special need” to overcome confidentiality; United States v. Huckaby (5th Cir.); United States v. Corbitt (7th Cir.); U.S. Dep’t of Justice v. Julian; United States v. Schlette; Beller ex rel. Beller v. United States (D NM)

Where the plaintiffs did not establish that the information they sought was not available from other sources, and legitimate policy concerns weighed against disclosure, the district court did not abuse its discretion by refusing to make available to a third party letters containing presentence objections prepared in a criminal case for use in this related civil litigation. In this class action, the plaintiffs purchased wild bird food from defendant-Scotts Miracle-Gro that was treated with “unapproved pesticides.” They sought two sets of objections that were attached to Scotts’ PSR from an Ohio criminal case. The district court declined, ruling that they were confidential. Plaintiffs argued that the district court erred by applying the same legal standard to the objections as it did to the PSR. They claimed that “the objections were akin to sentencing memoranda and therefore should be presumptively accessible under both the First Amendment and the common law.” Scotts maintained that the objections were “closely related to the PSR and should be accorded the same confidential treatment as the PSR itself.” The court concluded that objections merit a similar level of protection as the PSR. A third party “seeking release of a PSR must make a showing of ‘special need’ to obtain the document.” It held that this same standard applied to the objections because they were “fundamentally interconnected with the PSR in three ways: procedure, purpose, and policy considerations.” It noted that “the objections arose precisely in accordance with the process outlined by” Rule 32, which governs presentence investigations and reports. “Just as courts have read Rule 32 to endorse the practice of keeping PSRs confidential, . . . Rule 32 similarly affords the objection process and its attendant documents ‘statute-based confidentiality protection[.]’” Keeping them confidential does not violate the First Amendment right to access because they have not been traditionally open to the public and public access does not “play a significant positive role” in the PSR objection process. Keeping them confidential also did not violate the common law right of access. Because the objections were entitled to same presumption of confidentiality as the PSR, plaintiffs could not access them unless they could show a “special need,” which they failed to do where the information they sought was also available from multiple other sources. Affirmed.