On Friday, Judge Netburn rejected the New Yorker magazine’s letter request to release a sealed deposition of former NYPD commissioner Ray Kelly, in a case brought by Muslim officer who sued Mr. Kelly and New York City for discrimination but lost on summary judgment.  She found that she lacked jurisdiction to grant the request because the proper procedural vehicle is a motion to intervene under Rule 24 — which the District Court cannot address while an appeal is pending:

[E]ven if the Court were to construe the New Yorker’s informal requests as a Rule 24(b) motion to intervene or invite the New Yorker to make such a motion, it would be without jurisdiction to hear such requests at this time because plaintiff filed a Notice of Appeal in this action on April 21, 2017 . . . . The Court of Appeals for the Second Circuit has held that district courts do not retain jurisdiction to rule on motions to intervene following the filing of a notice of appeal.

The Court’s research has not identified a case in which the factual scenario was exactly identical to this case; that is, where the post-notice of appeal motion of intervention was made by a media organization for the limited purpose of modifying a protective order. Nevertheless, the New Yorker’s requests do not fit into any exceptions recognized by the Court of Appeals, which primarily come into play when the notice of appeal itself is untimely, frivolous, or procedurally improper. As such, the Court is constrained to deny the New Yorker’s requests for lack of jurisdiction, until such time that the Court of Appeals has concluded its adjudication of the matter.