March 24, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1115 No. 92-1116 RICHARD AND ANITA POLIQUIN,
Plaintiffs-Appellants,
v.
GARDEN WAY, INC.,
Defendant-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella and Boudin, Circuit Judges,
and Keeton,* District Judge.
Maurice A. Libner with whom Marcia J. Cleveland and McTeague,
Higbee, Libner, MacAdam, Case and Watson were on brief for appellants.
Cheryl Flax-Davidson and Bob Gibbins were on brief for The
Association of Trial Lawyers of America, amicus curiae. Mark L. Austrian with whom Collier, Shannon, Rill & Scott, Roy E.
Thompson, Jr., Glenn H. Robinson, and Thompson & Bowie were on brief
for appellee. James D. Poliquin, Russell B. Pierce, Jr. and Norman, Hanson &
DeTroy were on brief for The Defense Research Institute, Inc., amicus
curiae.
March 24, 1993
*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. Richard and Anita Poliquin,
appellants in this court and plaintiffs below, challenge
protective orders of the district court limiting access to
certain discovery materials in this case. The plaintiffs'
underlying product liability claim has been settled. The
discovery dispute lives on, consuming the time and energy of
the courts, largely as a contest between plaintiffs' counsel
and the defendant-appellee, Garden Way, Inc. For reasons set
forth below, we modify the orders under review in one
important respect and otherwise affirm.
I. PROCEEDINGS IN THE DISTRICT COURT
In October 1990, Richard Poliquin was seriously injured
while operating the Super Tomahawk, a chipper/shredder
manufactured by Garden Way. He and his wife brought suit
against Garden Way in the district court, charging that the
injury was due to the defective design of the product. The
Poliquins sought discovery from Garden Way including design
specifications, sales data and information about other
accidents involving the Super Tomahawk or similar equipment.
In response, Garden Way sought a protective order
limiting disclosure of answers and documents produced in
response to specified discovery requests. The Poliquins
resisted. Garden Way submitted an affidavit from its general
counsel Lucia Miller in support of its request. On August
2, 1991, after a hearing on discovery issues, a protective
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order was entered by the magistrate judge to whom discover
matters had been assigned. The protective order said that
Garden Way did have "valuable trade secrets and other
confidential information" which were sought in discovery but
should not be made public. The order afforded confidential
treatment to information obtained through some, but not all,
of the interrogatories specified by Garden Way, and to other
information that had been the subject of the hearing.
The August 2 order also created a mechanism for
resolving disputes about new discovery. It provided that if
Garden Way produced other information or documents that it
deemed confidential, it should mark them with a legend
showing that they were "confidential" pursuant to court order
in the case. If the Poliquins disagreed, they could contest
the designation by motion within a fixed period, effectively
15 days from the production of the materials. The order
provided that it "shall not terminate at the conclusion of
this action" and within 90 days after the conclusion, all
information and documents subject to the order "shall be
destroyed" and a certificate of destruction provided by
counsel.
The Poliquins appealed the August 2 order to the
district judge who affirmed it as "not clearly erroneous."
An appeal to this court was taken but dismissed as
interlocutory. The interrogatory answers and documents
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provided by Garden Way under the protective order listed the
names of other persons who had been injured by Garden Way
equipment and included a number of complaints such persons
had filed in other suits. The Poliquins later took
depositions (under Fed. R. Civ. P. 31) of 23 other
individuals who had suffered such accidents, as well as the
videotaped deposition of Jay Sluiter, a former employee of
Garden Way. The protective order provided that confidential
information within a deposition transcript was to be
designated by underlining the lines in question and stamping
the pages "confidential." It is not clear that Garden Way
did so in each instance.
A pretrial hearing occurred on October 24, 1991. The
district judge ruled that the Poliquins were free to offer
information and documents at trial even if they had been
designated as confidential during discovery. During this
colloquy, plaintiffs' counsel suggested that material offered
in evidence would be freed from further restriction, so he
could send such material to other plaintiffs who had similar
cases. Defense counsel disagreed and concluded by saying
that when trial is over "I will request that those exhibits
be returned." The court replied: "Correct. . . . When the
trial is over, whatever rights you have . . . to control the
further dissemination of the material, you can invoke."
-4-
Trial began on October 28, 1991. During trial, the
court permitted the Poliquins' counsel to read to the jury a
portion of Garden Way's interrogatory answers--relating to
certain of the other accidents involving Garden Way
equipment--but it did not allow the written interrogatory
answers themselves to be offered as exhibits and excluded
information about many of the other accidents altogether.
None of the Rule 31 depositions of other injured persons was
admitted or read to the jury, the court excluding them as
prejudicial and of little value. A videotape of the Sluiter
deposition was shown to the jury in its entirety.
During trial, the parties agreed to settle the case, and
the jury was discharged. Thereafter, on November 13, 1991,
defense counsel wrote to the Poliquins' counsel listing 214
items claimed to be covered by the protective order, and
requesting that the listed material be returned or destroyed.
Some of the 214 items had not previously been designated as
confidential. Included in the list were portions of the
trial record. It appears that the Poliquins' counsel did not
immediately reply.
On November 18, 1991, plaintiffs executed a "release and
indemnity agreement" and received a check. The agreement
stated that "[r]eleasors and their attorney acknowledge that
they are still bound by the terms of the [August 2]
Protective Order" as to disclosure of protected materials.
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In a signed addendum, the Poliquins' counsel approved the
agreement and "acknowledge[d] continuing applicability of the
Protective Order and agree[d] to comply with the portions of
this agreement which apply to him." The counsel "further
agree[d]" that he would instruct any expert or consultant
shown confidential material not to disseminate it and to
return all documents or other written materials to defense
counsel. On November 27, 1991, the district court formally
dismissed the case.
Shortly before the dismissal, the Poliquins on
November 25, 1991, filed a motion "for determination of
confidentiality" asking the court to rule that a number of
items listed in the November 13, 1991, letter were not
subject to any confidentiality restriction. The Poliquins
argued that their counsel had independently learned the names
of seven injury victims before the interrogatories were
answered; that any information admitted into evidence at
trial, (e.g., the Sluiter deposition) should not be
protected; that it would be wasteful of resources to protect
the unadmitted Rule 31 depositions of victims; and that court
complaints filed in other cases, although furnished by Garden
Way in discovery and not admitted at trial, were public
documents.
Garden Way opposed the motion and asked the court to
seal pendente lite confidential material to the extent
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contained in the court's file. By endorsements, the district
judge on December 10, 1991, granted Garden Way's request and
denied the Poliquins' motion. Then, on January 17, 1992, the
district court on further review of Garden Way's request
directed that material subject to the August 2 protective
order be removed from the court file by counsel for Garden
Way and the court then sealed "all testimony and arguments
made during the trial dealing with the matters which are
subject to" the August 2 order, unless and until otherwise
ordered by the court.
The Poliquins appealed to this court both the December
10, 1991, order denying its motion and the January 17, 1992,
order sealing in part the trial record. An amicus brief
supporting them has been filed by the Association of Trial
Lawyers of America and another in opposition by the Defense
Research Institute, Inc. There is no hint that the Poliquins
themselves have any practical interest in the outcome of the
appeal, but as they are formally subject to protective orders
entered in their case, we see no lack of standing to seek
appellate review.
II. THRESHOLD ISSUES
At the outset, we face arguments on both sides that
important issues have been waived or relinquished. To raise
an issue on appeal, a litigant must generally show the issue
was raised in the trial court by a proper request or
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objection and that the right ground for the request or
objection was given at the time. See generally Clauson v.
Smith, 823 F.2d 660, 666 (1st Cir. 1987) (collecting waiver
cases). Even then, a mistake in the ruling will be
disregarded unless prejudice resulted from the error. E.g.,
Fed. R. Evid. 103(a). Finally, nothing prevents a party from
consenting by stipulation or contract not to pursue a
specific issue on appellate review.
The reason for the rules is not that litigation is a
game, like golf, with arbitrary rules to test the skill of
the players. Rather, litigation is a "winnowing process,"
Howell v. Federal Deposit Ins. Corp., No. 92-1542, slip op.
at 15 (1st Cir. Feb. 17, 1993), and the procedures for
preserving or waiving issues are part of the machinery by
which courts narrow what remains to be decided. If lawyers
could pursue on appeal issues not properly raised below,
there would be little incentive to get it right the first
time and no end of retrials. Thus, while there are escape
hatches--"plain error," "miscarriage of justice," and other
rubrics--an argument not properly preserved in the trial
court is normally unavailable on appeal.
Garden Way argues that in the release the Poliquins
agreed to be "bound" by the August 2 protective order, and so
have relinquished their right to challenge the protective
order on appeal. The argument may have more force as to some
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of the information in dispute (e.g., the answers to
specifically protected interrogatories) and less as to other
items (anything arguably "added" by Garden Way's post-trial
letter to previously protected information). But we need not
resolve the matter because Garden Way made no such
relinquishment argument to the district court when it opposed
the Poliquins' motion to determine confidentiality.
Although appellate courts have discretion to resolve
issues waived or abandoned at trial, Clauson, 823 F.2d at
666, this is and should be uncommon, especially where facts
pertinent to the issue are not in the record. Here, the
import of the release is less clear than Garden Way suggests.
The release states that the Poliquins are "still bound by the
terms" of the August 2 protective order, but it is open to
argument whether "the terms" apply to all of the disputed
material. The parties' intentions might be illuminated by
facts incident to the negotiations, but those facts are
absent. In all events, we conclude that Garden Way has
itself waived the right to argue that the release bars this
appeal.
Garden Way next argues that the Poliquins cannot attack
the protective order because they failed to file an affidavit
of their own in opposition to the original request for that
order. We think it plain that the Poliquins, having made and
pursued a timely objection to the August 2 order, are free
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to argue that the order was itself unlawful ab initio. The
burden of showing cause for the order was upon Garden Way and
the Poliquins can argue that the burden was not met (or that
the order was overbroad) without offering affidavits of their
own.
Finally, turning the tables, the Poliquins themselves
contend that Garden Way lost the protection of the August 2
order as to various depositions because they were not marked
"confidential" and underlined as required by the order.
Garden Way says in reply that some depositions were not
received until the midst of trial, delaying the designation
process. The facts are obscure but need not be determined.
The Poliquins' waiver argument was not made in their motion
for a determination of confidentiality or the supporting
memorandum. Accordingly, this fact-bound argument is itself
unavailable on appeal.
III. THE MERITS
The August 2 Order. Protective orders of various kinds
are employed in civil cases, ranging from true blanket orders
(everything is tentatively protected until otherwise ordered)
to very narrow ones limiting access only to specific
information after a specific finding of need. See generally
Francis H. Hare, Jr., James L. Gilbert & William H. ReMine,
Confidentiality Orders, 4.10 (1988). The magistrate
judge's order in this case fell between these poles: it was
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based on an affidavit cast in broad terms; it protected
specific interrogatory answers; and it set up a mechanism
allowing Garden Way to designate further confidential
material subject to objection by the Poliquins.
District judges need wide latitude in designing
protective orders, and the Federal Rules of Civil Procedure
reflect that approach. Rule 26(c) generously permits "for
good cause shown" the making of "any order which justice
requires" to protect against annoyance, embarrassment or
undue burden occasioned by discovery. The district court has
"broad discretion" to decide "when a protective order is
appropriate and what degree of protection is required,"
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), and
great deference is shown to the district judge in framing and
administering such orders. Public Citizen v. Liggett Group,
Inc., 858 F.2d 775, 790 (1st Cir. 1988), cert. denied, 488
U.S. 1030 (1989); 8 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure 2036 (1970).
Here, we have no doubt that the magistrate judge was
entitled to enter the August 2 order. Some trial judges take
a stricter view of the showing needed to protect discovery.
But, in coping with the torrent of material often discovered
but never used at trial, other judges require some general
showing by affidavit and then protect materials designated by
one side, subject to challenge by the other. Apart from a
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few aspersions on the Garden Way affidavit, the Poliquins do
not seriously renew their prior attack on the original August
2 order. To the extent they do so, we reject that claim,
finding the Miller affidavit adequate to support the original
protective order.
This conclusion, however, does not even begin to dispose
of the case. The Poliquins' main attack is directed not to
the August 2 order of the magistrate judge but to the
protection afforded or reaffirmed under the district judge's
own ancillary orders of December 10, 1990, and January 17,
1991. These orders rejected the Poliquins' request to
release (1) the Sluiter deposition and certain excerpts from
interrogatory answers (read into evidence at trial) relating
to other accidents, (2) court complaints filed by certain
victims (which were not admitted at trial), and (3) and the
Rule 31 depositions of victims (which likewise were not
admitted at trial).1
Admitted Evidence. Among the items protected by the
district court's orders are materials that were actually
1These latter orders were issued after the dismissal of the case, and under Public Citizen, 858 F.2d at 781-82, the
district court could not after dismissal expand the protective order to create new obligations. Examining this "juris-dictional" issue sua sponte, we find that the orders
in question represent in part a declaration of the scope of the existing August 2 order as applied to disputed materials and in part a refusal to remove prior protection. Thus, the orders were within the district court's continuing authority over previously issued orders.
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admitted into evidence at trial: the videotape of the Sluiter
deposition and excerpts read into the record from
interrogatory answers describing other accidents. There is
no issue of waiver here, for (as earlier noted) Garden Way
made clear its desire to enforce the protective order even
for material admitted at trial, and the district court
reserved decision on the matter. We conclude, however, that
only the most compelling showing can justify post-trial
restriction on disclosure of testimony or documents actually
introduced at trial. That showing has not been made in this
case.
We have no doubt that, in rare circumstances, material
introduced at trial can be safeguarded against disclosure
afterwards. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12
(1st Cir. 1986). Material of many different kinds may enter
the trial record in various ways and be considered by the
judge or jury for various purposes. The subject could be
national security, the formula for Coca Cola, or embarrassing
details of private life. The evidence might be offered only
at the bench and the transcript immediately sealed, or it
might be provided in a closed hearing, or it might be offered
in public but be hard to replicate without a transcript. It
is neither wise nor needful for this court to fashion a rule-
book to govern the range of possibilities.
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One generalization, however, is safe: the ordinary
showing of good cause which is adequate to protect discovery
material from disclosure cannot alone justify protecting such
material after it has been introduced at trial. This
dividing line may in some measure be an arbitrary one, but it
accords with long-settled practice in this country separating
the presumptively private phase of litigation from the
presumptively public. See Cowley v. Pulsifer, 137 Mass. 392
(1884) (Holmes, J.). Open trials protect not only the rights
of individuals, but also the confidence of the public that
justice is being done by its courts in all matters, civil as
well as criminal. See Seattle Times Co., 467 U.S. at 33
(distinguishing discovery material, traditionally not
available to the public, from trial evidence which normally
is available).
There is thus an abiding presumption of access to trial
records and ample reason to "distinguish materials submitted
into evidence from the raw fruits of discovery." Littlejohn
v. BIC Corp., 851 F.2d 673, 678, 684 & n.28 (3d Cir. 1988).
As we have said elsewhere, "`[o]nly the most compelling
reasons can justify the non-disclosure of judicial records.'"
FTC v. Standard Financial Management Corp., 830 F.2d 404, 410
(1st Cir. 1987) (quoting In re Knoxville News-Sentinal Co.,
723 F.2d 470, 476 (6th Cir. 1983)). Accord, Joy v. North,
692 F.2d 880, 893-94 (2d Cir. 1982). In this case, there are
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no separate findings by the district court explaining the
need for post-trial protection of trial evidence. While in
some cases "compelling reasons" might be apparent from the
record, that is not so here.
Considering first the description of other accidents in
the interrogatory responses, we believe no basis exists for a
finding of "compelling reasons." Garden Way's reason for
protection of such incidents is set forth in the Miller
affidavit. It amounts to a garden-variety claim that the
company's image among customers will be damaged through the
misuse or distortion of those accident claims. In our view,
this threat may be adequate as a ground for protecting
discovery material;2 but it is outweighed, after the
material is introduced in evidence, by the public's interest
in access to trial records. See Littlejohn, 851 F.2d at 685.
Trials after all commonly generate bad publicity for
defendants. Specific pieces of evidence are only details of
a larger picture, often a very disparaging one, created by
reports of the case in the press. This publicity may be
unfair or distorted, but the injury is the price paid for
open trials. At least in the absence of extraordinary
2Some courts have questioned whether corporate reputation warrants protection at all under Rule 26, e.g.,
Smith v. BIC Corp., 869 F.2d 194 (3d Cir. 1989). In our
view, so long as the protective order permits the opposing litigant to reach the material--and use it as needed at trial--it is hard to see why the district court should not be allowed to safeguard reputation.
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circumstances, commercial embarrassment is not a "compelling
reason" to seal a trial record. We have examined the
interrogatory answer excerpts at issue in this case and find
nothing to alter our judgment.
The videotape of the Sluiter deposition presents a
different problem because Garden Way, in arguing about its
confidentiality, made a proffer which goes somewhat beyond
claims of embarrassment. Garden Way said that the deposition
deal[s] with the internal procedures by which Garden Way evaluates a product, market tests products and ultimately purchases the product for incorporation into its product line. [Sluiter's] testimony and exhibits deal with Garden Way's specific business plan for shredders, business plans for other types of power equipment, as well as customer profile information. All this information is highly confidential and proprietary . . . .
Needless to say, these assertions, no matter how accurate,
could not provide a basis for protecting the entire videotape
of the deposition after its introduction into evidence, but
at most only trade secret or like material of unusual
importance.
In any event, we see no need for a remand to consider
any splicing of the tape. After reviewing the deposition
transcript, this court finds that the videotape contains
nothing remotely comparable to, say, the formula for Coca
Cola or even an important trade secret. Garden Way's
business methods are discussed but there are no startling
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revelations. The disadvantages of disclosure relate to
future litigation, not the conduct of Garden Way's business.
There is no "compelling reason" here to restrict access to a
videotape already played in open court.
We note that a litigant like Garden Way has a
straightforward trial remedy, one apparently not used in this
case. At the time that confidential information is offered
in evidence, the trial judge has ample power to exclude those
portions that have limited relevance but contain trade
secrets or other highly sensitive information. Fed. R. Evid.
403. This approach will not solve every problem but, to the
extent it applies, it can mitigate harm without any
impairment of public access to the trial record.
Public Records. The Poliquins next object to the
protection after trial of copies of civil complaints filed in
other courts against Garden Way by other accident victims in
other cases. None of these complaints was accepted in
evidence at trial. Nor do we understand the Poliquins to
claim that their attorney obtained the complaints
independently of discovery.3 The issue, then, is whether
3Their attorney asserts that he obtained the names of seven victims independently but then secured the complaints they had filed from Garden Way through compulsory discovery. In our view this makes the complaints themselves discovered material. Limiting use of independently obtained material would, of course, raise serious questions as to the scope of the court's authority and under the First Amendment. See
Seattle Times, 467 U.S. at 37; International Products Corp.
v. Koons, 325 F.2d 403, 409 (2d Cir. 1963) (Friendly, J.).
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the character of the complaints as public records means that
"good cause" cannot exist for protecting them under Rule 26
even though they were obtained by compulsory discovery from
the party seeking protection.
At first blush, it might appear odd to safeguard with a
protective order "public" documents that anyone in the
country can secure by visiting a government office and using
the copying machine. Yet, one can easily imagine "public"
archival material where difficulties of discovery and
assembly represent a significant investment by the original
finder and a barrier to easy replication. Indeed, most
"trade secrets" are duplicable with enough time and effort.
The futility of protecting a "public" document might persuade
a court to deny protection. But we see no basis for a
blanket rule forbidding Rule 26 protection in all instances
where the "public" document is obtained through discovery
under an otherwise justified protective order.
The "public" character of the complaints is the only
reason given by the Poliquins for ordering their disclosure.
We therefore have no reason to consider whether the
magistrate judge's original inclusion of the complaints under
the protective order was error for any other reasons. A
protective order may often specify categories of information
for protection without document by document review, and the
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design of the order is in any event largely within the trial
court's discretion.
The Rule 31 Depositions. The remaining documents in
dispute are the Rule 31 depositions of 23 accident victims
not admitted into evidence at trial. The issue before us is
narrow. The Poliquins, as we have said, have waived any
claim that protection for the depositions was not timely
sought. Nor do the Poliquins assert that the depositions
must be disclosed in order to advise the public, and
especially the authorities, of an unknown danger. Cf.
Anderson v. Cryovac, Inc., 805 F.2d at 8 (permitting
plaintiffs to disclose to government authorities discovery
information regarding toxic chemicals in the city's water
supply). In this case, nothing prevents the Poliquins from
advising the government of their claim that the Super
Tomahawk is defective.
The Poliquins argue instead that disclosure of the
depositions is warranted to avoid wasteful duplication of
discovery in other cases.4 The argument has a surface
appeal in a time of swollen litigation cost and crowded
dockets, but it looks at only one element in the equation.
4The Poliquins' counsel also argues that he has invested $5,000 in taking the depositions and should be free to recoup his costs by using the depositions in other suits against Garden Way. This version of events overlooks the fact that counsel was not doing private research but was using the court's compulsory process to secure the information from deponents compelled to attend and answer.
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Absent an immediate threat to public health or safety, the
first concern of the court is with the resolution of the case
at hand. Judges have found in many cases that effective
discovery, with a minimum of disputes, is achieved by
affording relatively generous protection to discovery
material. Impairing this process has immediate costs,
including the delay of discovery and the cost to the parties
and the court of resolving objections that would not be made
if a protective order were allowed.
For these reasons, the district court under current law
retains broad discretion to protect discovery material,
despite the burden of re-discovery imposed on future
litigants in future cases. There have been proposals in
Congress for "sunshine" legislation to provide public access
to discovery, Court Secrecy: Hearings Before the Subcomm. on
Courts and Administrative Procedure of the Senate Judiciary
Committee, 100th Cong., 1st Sess. (1990), but there has also
been strong opposition to these proposals and few states have
adopted them. See, e.g., Judicial Conf. of the United
States, Report of the Federal Courts Study Committee 102-03
(1990); Arthur Miller, Confidentiality, Protective Orders,
and Public Access to the Courts, 105 Harv. L. Rev. 427, 477-
502 (1991). In all events, Congress has not altered the law.
Where the district court does protect material during
discovery, it is common to provide, as the magistrate judge
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did here, for post-trial protection including the return or
destruction of protected material. In most cases, the
lubricating effects of the protective order on pre-trial
discovery would be lost if the order expired at the end of
the case or were subject to ready alteration. See Miller,
supra, at 499-500. Nevertheless, a protective order, like
any ongoing injunction, is always subject to the inherent
power of the district court to relax or terminate the order,
even after judgment. Public Citizen, 858 F.2d at 781-82.
This retained power in the court to alter its own
ongoing directives provides a safety valve for public
interest concerns, changed circumstances or any other basis
that may reasonably be offered for later adjustment. Where
such a request is made to the district judge and an appeal
thereafter follows, the standard of review broadly speaking
is abuse of discretion. Id. at 790-92. Nothing in this case
suggests that the district court abused its discretion in
refusing to lift the protective order for discovery materials
not introduced at trial.
The orders of the district court under review are
modified to exclude from their scope the videotape of the
Sluiter deposition and the interrogatory answer excerpts to
the extent read into evidence, and the district court's
orders are otherwise affirmed. No costs.
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KEETON, District Judge (Dissenting). I
respectfully dissent on the ground that this court is without
jurisdiction to hear this appeal, and, in the alternative,
that the most we have jurisdiction to do, and should do, is
to vacate aspects of the district court orders that were
beyond the district court's jurisdiction.
I. Jurisdiction Over the Appeal
The briefs filed in this case by counsel for the
named parties present issues of fundamental significance
concerning the nature and scope of protective orders issued
by district courts during pretrial proceedings and concerning
settlements on terms that leave such orders in effect.
Amicus briefs (filed on behalf of separate associations of
attorneys who commonly represent plaintiffs and defendants
respectively in product liability actions) reflect widespread
interest in the bar.
The importance of the issues underscores the
importance of this court's sensitivity to limits on its
jurisdiction. I recognize how pressing are the interests of
the bar and trial judges in having clear guidance about
important unsettled issues that are confronted almost daily
in the district courts. At least equally compelling,
however, are the interests underlying limits on our
jurisdictional authority. We must respect constitutional
constraints against issuing advisory opinions when no live
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case or controversy is presented to the court by real parties
in interest.
A. Interest of the Poliquins
As noted in Part I of the Court's Opinion, the
Poliquins, nominally the appellants in this case, received a
check from Garden Way and executed a "release and indemnity
agreement" that included a provision declaring that
"[r]eleasors and their attorney acknowledge that they are
still bound by the terms of the [August 2] Protective Order"
as to disclosure of protected materials. The record before
us strongly suggests that Garden Way may have been influenced
to make a higher cash offer for this settlement than would
have been made in return for a release that did not include
the provision binding the Poliquins and their attorney by the
terms of the protective order. Also, viewed in the light
most favorable to an argument that the Poliquins have a
legally protected interest at stake in this appeal, the
record fails to show that they have any tangible interest in
the outcome of this appeal (if indeed it does not strongly
suggest the contrary). Also, again viewing matters most
favorably to an argument that the Poliquins have an interest,
one may doubt that whatever intangible interest they have in
the outcome of this appeal is a legally protected interest.
The fact that the Poliquins are named as people
subject to an ongoing protective order does not demonstrate
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that they have a legally protected interest in challenging
that order. To whatever extent the interlocutory protective
order survives after final judgment (dismissing the action
after the parties reported their settlement), it survives as
a "protective order" of the court -- or perhaps more
accurately stated, as protective terms of a settlement
agreement -- only because the Poliquins and their attorney
agreed to it.
The Poliquins, and the attorney who represented
them in effecting the settlement, are barred by contract from
challenging the terms of the order or the settlement
agreement incorporating those terms. I conclude also that,
by reason of this bar, the Poliquins lack the kind of
interest that would give them standing in this court (or in
the district court, see Part II below) to challenge the very
terms of the "protective order" to which they had agreed in
settling the case.
The rule that a party who settles a case cannot
thereafter appeal a court order entered previously in that
case is confirmed in precedent and is comprehensive in scope.
Any case or controversy previously existing between the
parties is moot after complete settlement. See Lake Coal Co.
v. Roberts & Schaefer Co., 474 U.S. 120 (1985) (per curiam).
Although partial settlement does not necessarily bar appeal
of unsettled disputes, see Nixon v. Fitzgerald, 457 U.S. 731,
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743-44 (1982) (case not moot after agreement fixing damages
dependent on outcome of appeal), when a party enters into an
agreement encompassing a specific issue, no live case or
controversy exists over that issue. See 13A Charles A.
Wright et al., Federal Practice & Procedure 3533.2 at 234
("A partial settlement moots the issues involved in the
settlement, but not those that the parties did not intend to
settle."). One context in which appeals have been dismissed
concerns appeal of a trial court order of remittitur. Even
when a plaintiff agrees to a remittitur "under protest" and
purports to reserve a "right to appeal therefrom," the
plaintiff "may not appeal from a remittitur order he has
accepted." Donovan v. Penn Shipping Co., 429 U.S. 648, 650
(1977) (per curiam) (affirming circuit court's dismissal of
appeal).
Here, the settlement agreement purported to settle
the entire controversy, and the Poliquins specifically agreed
to abide by the terms of the protective order. Any legal
controversy between Garden Way and the Poliquins over the
propriety of the protective order, therefore, is moot.
Because the legal controversy over the protective
order was rendered moot by the settlement, we should not
decide the important issues argued before us, whether or not
the parties waived any jurisdictional impediment. See
DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam)
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(determining that in federal courts, a case is not saved from
mootness by "great public interest in the continuing issues"
even if that circumstance might permit jurisdiction in a
state's legal system). Resolution of any dispute over the
protective order should be resolved under contract
principles, and not the (moot) legal controversies addressed
by the opinion of the Court in this case. See 13A Charles A.
Wright et al., Federal Practice & Procedure 3533.2 at 233-34
("[Q]uestions arising out of settlements, [as well as]
mootness questions should be answered according to the
[manifested] intent of the parties and more general contract
principles.").
B. Interest of the Poliquins' Attorney
Any interest the Poliquins' attorney may have in
challenging the terms that both the Poliquins and he agreed
to as part of the settlement cannot properly be asserted in
this appeal as an interest of the Poliquins. Indeed, any
suggestion to the contrary is troubling not only because of
its inconsistency with precedents, to be considered below,
but also because it raises a problem of potential conflict of
interest between the Poliquins and their attorney.
A party defendant may be willing to offer more
cash, and a party plaintiff may be willing to accept it, on
condition that the terms of a protective order remain in
force after the settlement. An attorney, on the other hand,
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might naturally be more or less resistant to such an
agreement than the client. The potential conflict might
affect the attorney-client relationship both during
settlement negotiations and in further proceedings before the
court after the final judgment of dismissal. In post-
settlement proceedings in this case, of course, the opposing
attorneys were formally appearing not each in his own right
but each for his client or clients.
C. Real-Party-in-Interest and Constitutional Requirements
Federal Rule of Civil Procedure 17 requires that
"[e]very action shall be prosecuted in the name of the real
party in interest." Fed. R. Civ. P. 17(a). It may be
debatable whether this rule applies to proceedings in a court
of appeals. See Fed. R. Civ. P. 1 ("These rules govern the
procedure in the United States district courts ... with the
exceptions stated in Rule 81."). See also Fed. R. Civ. P. 81
(containing no specific provision regarding applicability to
proceedings in a court of appeals). Something akin to a
real-party-in-interest requirement nevertheless applies to
appeals because of the constitutional requirement of a case
or controversy. See Diamond v. Charles, 476 U.S. 54 (1986)
(appellant pediatrician did not have a judicially cognizable
interest in defending Illinois criminal statutes; only the
State did, and it did not appeal; appeal dismissed). See
also Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2137-38
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(1992) (the "injury in fact" test requires both injury to a
cognizable interest and a showing that the party seeking
review is among the injured and would be "directly" affected
by challenged action) (citations omitted).
Moreover, the Federal Rules of Appellate Procedure
contain a requirement that a "notice of appeal shall specify
the party or parties taking the appeal," Fed. R. App. P.
3(c), and this requirement has been rigorously enforced. A
court of appeals is without jurisdiction to hear an appeal on
behalf of a person who has not been specified in the notice
of appeal as a party taking the appeal. See Torres v.
Oakland Scavenger Co., 487 U.S. 312 (1988); Santos-Martinez
v. Soto-Santiago, 863 F.2d 174 (1st Cir. 1988). This court
has dismissed an appeal that an attorney sought to press to
decision after the attorney's clients had settled all
interests they had in the appeal. Pontarelli v. Stone, 978
F.2d 773 (1st Cir. 1992).
D. Conclusion
In view of the likelihood, suggested by the record,
that the only named appellants have no legally protected
interest at stake in this appeal, I conclude that we should
dismiss this appeal unless, within thirty days from this
date, a submission is filed with this court showing a factual
and legal basis for a determination that the named appellants
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have a legally protected interest that would be affected by
the outcome of this appeal.
II. Jurisdiction of the District Court
In view of the rejection of my position that we
should dismiss the appeal in this case for want of appellate
jurisdiction, I turn next to considering limits upon the
district court's jurisdiction and the effect of those limits
upon the jurisdiction of this court.
Once this court determines that it has jurisdiction
of this appeal for any purpose, I do not question that the
court should at least exercise jurisdiction to consider
whether the district court erred in making an order in excess
of its jurisdiction. This court's jurisdiction may be
limited, however, to authority to vacate any aspect of the
orders of the district court that the district court lacked
jurisdiction to make.
If the district court, in either of its orders
appealed from (the December 10, 1991 and January 17, 1992
orders) made an order on the merits (for example, expanding
or narrowing the scope of the magistrate judge's August 2
order), it erred. The district court lacked jurisdiction to
enter such an order in a closed case (a final judgment of
dismissal, by reason of a settlement between the parties,
having been entered). See Part I.A, above. The district
court's error in this respect cannot confer jurisdiction on
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the court of appeals to reverse in part and affirm in part,
thereby making a different order on the merits; instead, our
jurisdiction is limited to ordering that, insofar as the
district court orders appealed from purported to expand or
otherwise modify the August 2 order, they be vacated for lack
of jurisdiction of the district court to make such orders.
Just as I believe it imperative that this court be
sensitive to limits on its jurisdiction over an appeal in the
name of the Poliquins if they are no longer real parties in
interest (for reasons explained in Part I.C, above), I
believe it imperative also that this court be sensitive to
limits on the jurisdiction of the district court to act on a
motion made on behalf of the Poliquins in that court if,
before the motion was filed, the Poliquins had ceased to be
real parties in interest. The fact they are formally named
as subject to the terms of the "protective order" is not
enough to give them either a practical interest or a legally
protected interest to support their motion seeking a
modification of a "protective order" to which they agreed as
part of the settlement.
In the district court, Federal Rule of Civil
Procedure 17 was applicable without doubt. Also, the
district court was under the same constitutional constraints
as this court with respect to the jurisdictional necessity of
a live case or controversy between the parties (the
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Poliquins) by whom the motion was brought and the party
(Garden Way) against which relief was sought.
A summary of the history of the protective order
includes these steps:
August 2, 1991. The magistrate judge made the
Protective Order at Garden Way's request and over the
Poliquins' opposition. The Poliquins appealed this order to
the district judge, who affirmed it as not "clearly
erroneous." An appeal to the court of appeals was dismissed
because the order was interlocutory.
October 24, 1991. During a pretrial hearing, in
response to a suggestion by plaintiff's attorney that he be
free from any restriction against disclosure of material
offered in evidence at trial, defendant's attorney disagreed
and stated, "I will request that those exhibits be returned."
The district court replied: "Correct.... When the trial is
over, whatever rights you have ... to control the further
dissemination of the material, you can invoke."
November 4, 1991. [This date is indicated in
Defendant's Memorandum in Opposition to Plaintiffs' Motion
for Determination of Confidentiality at 1 (seven days after
trial commenced on October 28, 1991).] On this date, during
trial, the parties reported to the district court that they
had settled. The court discharged the jury.
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November 13, 1991. Defense counsel wrote to
plaintiffs' counsel listing 214 items claimed to be covered
by the Protective Order and requesting that the listed
material be returned or destroyed. Some of these items had
not previously been designated as confidential. This letter
appears not to have been delivered to the court at that time,
but apparently it was brought to the court's attention
through the Poliquins' motion of November 25, 1991.
November 18, 1991. The Poliquins executed a
"release and indemnity agreement" and received a check. The
agreement stated that "[r]eleasors and their attorney
acknowledge that they are still bound by the terms of the
Protective Order" as to disclosure of protected materials.
In an addendum, plaintiffs' attorney signed an
acknowledgement that the agreement was binding on him.
November 25, 1991. Two days before entry of the
final judgment of dismissal and seven days after executing
the "release and indemnity agreement," the Poliquins filed a
motion "for determination of confidentiality".
November 27, 1991. The clerk entered a final
judgment of dismissal of the action. That final judgment
made no reference to the terms of the protective order,
either in its August 2nd form or as it may have been
interpreted or modified by the district court's oral ruling
in the pretrial hearing of October 24, 1991.
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December 5, 1991. Defense counsel sent to
plaintiffs' counsel and the court a letter, later treated by
the court as defendant's Motion to Seal Documentation from
its File Until Parties Come to An Agreement.
December 9, 1991. Defendant filed a written
memorandum in opposition to the Poliquins' motion of November
25.
December 10, 1991. The clerk sent the following
notice to all counsel:
Please take notice that Chief Judge Gene Carter has this date made the following endorsements on the motions listed below:
(1) Plaintiffs' Motion for Determination
of Confidentiality: "12/10/91 MOTION
DENIED".
(2) Defendant's Motion to Seal
Documentation from its File until Parties
Come to An Agreement (Letter addressed to
William Brownell dated December 5, 1991 from Roy E. Thompson): "12/10/91 MOTION GRANTED; Counsel to file a proposed final order within ten (10) days".
Addendum to Appellants' Brief at 1.
January 17, 1992. The court signed and the clerk
entered an "Order on Defendant's Motion to Seal
Documentation" as follows:
After reviewing Garden Way Incorporated's request to seal all confidential information contained in the Court's file, it is hereby ordered that all such documentation may be removed from the Court's file by counsel for Garden Way Incorporated. The documentation which is to be removed is
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subject to this Court's Protective Order dated August 2, 1991. In addition the Court will seal all testimony and arguments made during the trial dealing with matters which are subject to said Protective Order, and any sealed material shall not be reviewed except upon order of this Court.
Id. at 2.
The Poliquins filed notices of appeal from the
December 10, 1991 and January 17, 1992 orders.
It is true that Garden Way's Memorandum in
Opposition to Plaintiffs' Motion for Determination of
Confidentiality does not argue that the district court lacks
jurisdiction to grant plaintiffs' motion. Instead, it argues
that the district court should deny plaintiffs' motion
because, after the litigation has
been settled, the case dismissed and Plaintiffs paid, Plaintiffs' counsel seeks an order from this Court essentially reversing the Protective Order, thereby permitting counsel for the Plaintiffs to disseminate this protected information on a nationwide basis.
Defendant's Memorandum in Opposition to Plaintiffs' Motion
for Determination of Confidentiality, 12/9/91, quoted in
Addendum to Reply Brief of Appellants, at 17.
It is true also that defendant's counsel, too,
after the settlement, in effect sought a modification of the
protective order. First, the letter of November 13, 1991,
addressed to plaintiffs' counsel, listed 214 items claimed to
be covered by the protective order and requested that the
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listed material be returned or destroyed. The record does
not disclose that this request was made to the court, but
apparently it was brought to the court's attention by
plaintiffs' motion of November 25, 1991. In any event, a
second request was made by letter of December 5, which the
court treated as a motion to seal.
Even if the separate requests to the court by all
parties were treated as a manifestation of their consent to
the court's exercise of jurisdiction to consider
modifications of the protective order, such a joint request
made after the court had entered a final judgment of
dismissal cannot confer jurisdiction on a United States
district court contrary to the limitations imposed by the
Constitution and laws of the United States.
This point is reinforced by the comment of this
court when dismissing the appeal from the interlocutory
protective order in this case:
The fact that the parties may settle the litigation and thereby foreclose appellate review does not make an interlocutory order immediately appealable.
Id. at 17, quoting the ORDER OF COURT entered October 18,
1991.
In view of this history of the protective order and
the incorporation into the settlement agreement of some or
all of the terms of the protective order as they existed at
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the moment of execution of the settlement agreement, the
record before us lacks complete clarity about the extent to
which protective terms survive as an order of the district
court, even though not incorporated into the final judgment,
or only as terms of the settlement agreement between the
partes, or (perhaps by analogy to a consent decree) in some
combination of court order and agreement of the parties.
For present purposes, nevertheless, I assume that
the district court is not precluded from considering and
ruling upon any motion for enforcement of the settlement
agreement. Also, incident to such a motion, the district
court may consider any request for interpretation of the
agreement and -- should grounds be shown for doing so,
consistently with the law applicable to interpretation and
enforcement of contracts -- may receive evidence to resolve
any ambiguity in the settlement agreement.
The motions before the court in this case, however,
as well as the orders of December 10, 1991 and January 17,
1992, were focused on proposed modifications of the court's
protective order as an order of the court continuing in
effect beyond the execution of the settlement and dismissal
of the case. The motions were not viewed by the parties,
their attorneys, or the court as motions seeking
interpretation and enforcement of the settlement agreement.
In these circumstances, even if we have jurisdiction to treat
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the motions in the district court as if they were motions to
enforce (and interpret) the settlement agreement, and to
treat the appeal from the district court's orders as properly
before us for consideration on the merits to this limited
extent, the more prudent course is not to do so. Neither the
attorneys nor the district court viewed the matter as a
proceeding to enforce the settlement. Nor has the matter
been argued before us from this perspective. The better
course is to allow the contentions of the parties, and any
evidence relevant to their contentions, to be developed first
before the district court.
In any event, exercising jurisdiction over motions
to modify the protective order of August 2, 1991 is a very
different matter from exercising jurisdiction to enforce a
settlement agreement. If the appeal now before us is not to
be dismissed for want of jurisdiction, I conclude that we
should (a) vacate the district court's orders of December 10,
1991 and January 17, 1992 insofar as they purport to modify
and continue in force, as modified, the protective order of
August 2, 1992, and (b) remand with directions that the
district court decline to exercise jurisdiction over any
further motion by any of the parties to the settlement
agreement, or their attorneys, seeking a substantive
modification of the protective order to which they agreed as
part of their settlement.
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