United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Petitioner, Charles Rhines, moves the court to seal his motion for expert access and his reply brief. Rhines’s motion for expert access seeks an order from this court allowing Dr. Robert D. Shaffer to conduct a neuropsychological examination of Rhines. Respondent opposes the motions to seal and the motion for expert access. For the following reasons, the court denies the motions to seal and denies the motion for expert access.
The procedural history of this case is more fully set forth in the court’s February 16, 2016 order granting summary judgment in favor of respondent. Docket 305. The following facts are relevant to Rhines’s pending motion:
Rhines is a capital inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota. He was convicted of premeditated first-degree murder for the death of Donnivan Schaeffer and of third-degree burglary of a Dig’Em Donuts Shop in Rapid City, South Dakota. A jury found that Rhines should be subject to death by lethal injection, and a state circuit court judge imposed the sentence. On February 16, 2016, this court granted respondent’s motion for summary judgment and denied Rhines’s federal petition for habeas corpus. On March 9, 2016, Rhines moved the court for an order allowing Dr. Schaffer to conduct a comprehensive neuropsychological evaluation of Rhines at the penitentiary.
Rhines argues that Dr. Shaffer should be permitted to conduct his examination because Dr. Shaffer’s evaluation is a component of Rhines’s federal habeas proceeding. Dr. Shaffer requires as a part of his examination that Rhines’s hands remain unshackled and that Rhines be allowed to use his hands during several tests. Rhines argues that he attempted to schedule the evaluation through the South Dakota Department of Corrections (DOC), but DOC personnel insist that Rhines first obtain a court order before Dr. Shaffer can be given access to Rhines at the prison.
Correspondence between Rhines’s attorneys and DOC personnel is attached to Rhines’s motion. In that correspondence, DOC personnel state that the reason Dr. Shaffer cannot receive the type of access that Rhines requests is because of prison safety concerns. More specifically, DOC policy requires that capital inmates such as Rhines remain restrained in the presence of visitors. DOC personnel are concerned by Rhines’s behavior while he has been incarcerated and believe that he may pose a danger to others.
DOC personnel also argue-and respondent agrees-that Dr. Shaffer cannot be given access to Rhines for any reason unless Rhines complies with SDCL 23A-27A-31.1. That statute provides:
From the time of delivery to the penitentiary until the infliction of the punishment of death upon the defendant, unless lawfully discharged from such imprisonment, the defendant shall be segregated from other inmates at the penitentiary. No other person may be allowed access to the defendant without an order of the trial court except penitentiary staff, Department of Corrections staff, the defendant's counsel, members of the clergy if requested by the defendant, and members of the defendant's family. Members of the clergy and members of the defendant's family are subject to approval by the warden before being allowed access to the defendant.
SDCL 23A-27A-31.1 (emphasis added). Respondent contends that Dr. Shaffer is not a member of the penitentiary staff, DOC staff, defendant’s counsel, a member of the clergy, or a member of Rhines’s family. Thus, respondent argues that DOC personnel do not have the authority to grant Dr. Shaffer access to Rhines. Rather, Rhines must first obtain a court order. Although Rhines disagrees with respondent’s contention,  Rhines asks this court to issue an order allowing Dr. Shaffer to conduct his examination.
I. Motions to Seal
Rhines originally filed his motion for expert access ex parte. The court denied the motion and directed Rhines to serve a copy of the motion on respondent because Rhines’s request may implicate the legitimate penological interests of the state of South Dakota. Rhines now requests that his motion and his reply brief be sealed because their contents implicate the attorney-client privilege or attorney work product doctrine.
The public has a “general right to inspect and copy public records and documents, including judicial records and documents.” In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)). The public right, however, is not absolute. Id. (quoting id. at 598). The Eighth Circuit has held that “ ‘only the most compelling reasons can justify non-disclosure of judicial records.’ ” Id. (quoting In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2006)). Whether court records should be sealed ...