In Ultra-Secretive Case, One Veil May Be Lifted

By COLIN MOYNIHAN

The case of John Doe and Richard Roe may be about to take a small step toward transparency.

John Doe was connected to a New York investment firm that was sued in 2010 by a group of people accusing it of defrauding them. Richard Roe is the lawyer who filed the suit and, in doing so, revealed that John Doe had a past that was not disclosed to the investors: He was a defendant in an organized crime case in Brooklyn and was secretly cooperating with the government to help convict others.

With the revelation came chaos. Some accused Richard Roe of endangering John Doe's life. Court records were sealed. And the fictional names Doe and Roe were bestowed by the court upon the two protagonists in the odd drama.

On Wednesday, five lawyers met before a judge in Federal District Court in Brooklyn to debate whether the docket sheet in the original criminal case involving John Doe should be unsea led.

Those in favor of the unsealing included Irving B. Hirsh, representing Richard Roe; Richard Roe, using his real name, Frederick Oberlander, representing his client in the fraud case; and Steven L. D'Alessandro, representing The Miami Herald, which has revealed John Doe's true identity and printed his photograph. (The New York Times has not identified John Doe because of safety concerns raised by some parties in the matter.)

A prosecutor for the United States attorney's office, Todd Kaminsky, and John Doe's lawyer, Nader Mobargha, expressed reservations about unsealing the docket.

During the brief arguments, the judge, I. Leo Glasser, signaled strongly that he was leaning toward unsealing the docket sheet, although he was quick to add that the question of whether the documents described in the docket sheet should remain sealed was a separate matter.

The narrow issue, Judge Glasser said, centers on the question of whether the public's right to be a ware of court proceedings could be effectively countered by a “compelling, overriding interest,” like John Doe's safety.

Those who favored unsealing the docket made the point that John Doe's identity had been made known in various ways. Years ago, for instance, prosecutors issued a news release highlighting his guilty plea in the Brooklyn case. And at one point a court file had mistakenly been unsealed, allowing formerly secret items to be viewed on legal databases.

“There has been no demonstration that we are aware of that the suppression is essential,” Mr. D'Alessandro, The Miami Herald's lawyer, told the judge. “I think that would be a difficult thing for the government to establish.”

Mr. Mobargha, representing John Doe, told the judge that the timing of certain filings that would appear on the docket sheet would imperil his client by revealing his cooperation with the authorities and his real name, and would violate an order from the court o f appeals affirming secrecy in the case.

While listening to Mr. Mobargha and to the prosecutor, Mr. Kaminsky, Judge Glasser repeatedly asked why the court should maintain a seal when the information that the seal was meant to protect had already become public.

“The genie is out of the bottle,” he said, adding, “It is no longer possible to maintain the confidentiality of that information.”

Mr. Oberlander had long ago acknowledged that he was Richard Roe, but on Wednesday he gently chided the judge for making the connection.

After Mr. Oberlander referred to Mr. Hirsh as a colleague, Judge Glasser pointed out that Mr. Hirsh was Mr. Oberlander's lawyer. Mr. Oberlander responded by stating that the judge had “just put into the record that I am Richard Roe,” but quickly added that the fact was hardly a secret.

Judge Glasser agreed that the connection was not a secret, adding that Mr. Oberlander and Richard Roe were “inseparable” in his mind.