The “John Doe” Back Story: A Reporter’s Dilemma

As my readers, I thought you might be interested in this backstory to my reporting of the saga of cooperator John Doe’s 14-year journey from anonymity in court files to the disclosure of his real name, Felix H. Sater, a real estate executive who has been accused of using his ability to conceal his criminal past to commit a $500 million real estate fraud.

It is a complex story which is detailed in two prior posts (Click here for Post 1, Post 2). Suffice it to say that judges at both the district and circuit levels didn’t take kindly to Long Island lawyer Frederick Oberlander disclosure of information from Sater’s sealed file when he sued Sater for $500 million. A total of six federal judges in New York City issued a slew of sealing and gag orders and delivered several tongue lashings to Oberlander. At the direction of the Second Circuit, an enforcement judge was appointed who promptly ordered the U.S. Attorney’s Office to investigate both Oberlander and his attorney for criminal contempt of court.

The courts’ aggressive response to Oberlander’s disclosure of sealed information would have been unexceptional except for the fact that Sater’s name had long since been in the public domain. The Eastern District U.S. Attorney’s Office in 2000 had issued a press release using Sater’s name and disclosing his prior plea under circumstances that strongly suggested he was cooperating. In 2007, the New York Times wrote an article using Sater’s name. The article reported that his file had been sealed and quoted sources, on-the-record, as saying he was cooperating with the government.

This year the Times has written three stories about the battle over Sater’s file. In all of them it chose to describe him as “John Doe” rather than using his real name as the paper had in 2007.

The coup de grace occurred when Doe’s docket sheet “inadvertently” appeared on PACER from Aug. 10 through 16. On Aug. 27, Eastern District Judge I. Leo Glasser, who presided over Doe’s 1998 plea, ordered Sater’s docket sheet unsealed finding that an error by the clerk’s office had irretrievably made it available to the public through WestLaw and Nexis. PACER is the system the federal courts use to make court documents available to the public on the Internet.

This is where my bit role came in. While out of town on vacation, I accessed Sater’s docket sheet during the week it was available on PACER and was preparing to do a blog post on it. On the morning of Aug. 16, as I was in the final stages of my reporting, I called up the U.S. Attorney’s office and Doe’s lawyer for comment.

By mid-afternoon, I had not heard back from them and did one more check on PACER before posting the story. My pulse quickened when I saw the docket sheet was no longer there, just a notation “Sealed v. Sealed.” In the morning I had seen the docket sheet with 167 entries on it.

Would I be exposed to a claim that I had violated a sealing order even though I had seen the docket sheet while it was available on PACER? There was no denying that I knew that the entire docket, including the docket sheet, had been resealed. Could I get caught up in the criminal contempt investigation that was underway? Even if I was on sound legal ground, what was my exposure to legal costs?

Publishing, though, was very tempting. As far as I could tell, I was the only reporter who had actually seen the name “Sater” on the court’s official docket sheet. Scoops, after all, are the coin of the realm in the world of journalism.

After a day of agonizing, I decided to hold off publishing until I returned to New York three days later. There at least I could get professional advice as to my exposure. Soon after my return to the city, I heard about a hearing scheduled on the Miami Herald’s motion to unseal the resealed record.

At the hearing on Aug. 22, Judge Glasser made it clear that he was going to release the docket sheet. The judge himself created a bright-line path to Doe’s real name by twice saying that Doe had been “identified” in a photo and an article in the Miami Herald Click here for article. Judge Glasser also mentioned that Doe had been identified in a New York Times article Click here for article.

The New York Times did not run any article about either “Doe” or “Sater” after Judge Glasser released the docket sheet on PACER, USA v. Doe, 98-cr-1101 (EDNY).

My thanks to John Caher and the New York Law Journal for the credit they gave my reporting in John’s article published on Sept. 4

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