USCA1 Opinion

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 McTeag

__________________
____________________
______
Higbee, Libner, MacAdam, Case and Watson were on brief for appellan
________________________________________
Cheryl Flax-Davidson and Bob Gibbins were on brief for
_____________________
____________
Association of Trial Lawyers of America, amicus curiae.

Mark L. Austrian with whom Collier, Shannon, Rill & Scott, Roy
_________________
______________________________ ___
Thompson, Jr., Glenn H. Robinson, and Thompson & Bowie were on br
____________
_________________
_________________
for appellee.
James D. Poliquin, Russell B. Pierce, Jr. and Norman, Hanso
__________________ _______________________
_____________
DeTroy were on brief for The Defense Research Institute, Inc., ami
______
curiae.
____________________
March 24, 1993
____________________
___________________
*Of the District of Massachusetts, sitting by designation.

BOUDIN,

Circuit Judge.
______________

appellants in

this

court and

and

challenge

district court limiting

access to

of the

certain discovery

materials in

product liability

plaintiffs

Anita Poliquin,
below,

protective orders

underlying

Richard

this case.
claim has

The plaintiffs'

been settled.

discovery dispute lives on, consuming the time and

the courts, largely as

The

energy of

a contest between plaintiffs' counsel

and the defendant-appellee, Garden Way, Inc.

For reasons set

forth

review

below, we

modify

the

orders

under

in

one

important respect and otherwise affirm.

I. PROCEEDINGS IN THE DISTRICT COURT
In October
while

1990, Richard Poliquin was seriously injured

operating

the

manufactured by Garden
against

Super

Tomahawk,

Way.

He and his

Garden Way in the district

injury was due to the defective

Poliquins sought

sales

data

chipper/shredder
wife brought

suit

court, charging that the

design of the product.

discovery from Garden

specifications,

and

The

Way including design

information

about

other

accidents involving the Super Tomahawk or similar equipment.

In

response,

Garden

limiting

disclosure of

response

to

resisted.

Way

answers

specified discovery

sought
and

protective

order

documents produced

requests.

in

The Poliquins

Garden Way submitted an affidavit from its general

counsel Lucia Miller in support

2, 1991, after

a hearing on

of its request.

discovery issues, a

On August
protective

-2-2-

order was entered

by the magistrate

judge to whom

discover

matters
Garden

had been assigned.

Way

did

confidential

have

The protective

"valuable

trade

order said that

secrets

and

other

information" which were sought in discovery but

should not be

made public.

The

order afforded confidential

treatment to information obtained

of the interrogatories

through some, but not all,

specified by Garden Way, and to other

information that had been the subject of the hearing.

The

August

order

also

created

resolving disputes about new discovery.

Garden Way
deemed

produced other

confidential,

it

mechanism

It provided that if

information or documents
should

for

mark them

with

that it
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

15

days from

provided
this

within a fixed period, effectively

the production

that it "shall

action" and

and

within 90

materials.

not terminate at

information and documents

destroyed"

of the

the conclusion of

days after the

subject

certificate of

The order

conclusion, all

to the

order "shall

destruction

provided

be
by

counsel.
The

Poliquins

district judge
An

appeal

to

interlocutory.

appealed

who affirmed
this
The

court

the

August

it as "not
was

interrogatory

-3-3-

taken

order

to

the

clearly erroneous."
but

answers

dismissed
and

as

documents

provided by Garden Way under the

names of other
equipment and
had

filed

persons who
included a

in

other

protective order listed the

had been injured

number of complaints

suits.
Fed.

The

(under

individuals

who had suffered such accidents,

Garden Way.

The

information

R.

of Jay

P.

later

31)

of

23

took
other

as well as the

Sluiter, a former

employee of

protective order provided that confidential

within

deposition

designated by underlining the

the

Civ.

Way

such persons

Poliquins

depositions

videotaped deposition

by Garden

pages "confidential."

transcript

was

to

be

lines in question and stamping

It

is not clear

that Garden Way

did so in each instance.

A pretrial hearing
district judge
information
designated as

occurred on October

ruled that the

and documents
confidential

at

24, 1991.

The

Poliquins were free

to offer

trial even

had been

if they

during discovery.

During

this

colloquy, plaintiffs' counsel suggested that material offered

in evidence

would be freed

from further restriction,

could send such material to other

cases.

Defense

that when trial is

counsel disagreed

so he

plaintiffs who had similar

and concluded

over "I will request that

by saying

those exhibits

be returned."

The court replied:

"Correct. . . .

trial is over, whatever rights you have

When the

. . . to control the

further dissemination of the material, you can invoke."

-4-4-

Trial
court

began

28, 1991.

During

trial, the

permitted the Poliquins' counsel to read to the jury a

portion
certain

of Garden
of

the

equipment--but
answers

Way's interrogatory
other

it did

themselves to

information
None

on October

accidents

not allow

about many

of the

involving

the

be offered

answers--relating to
Garden

Way

written interrogatory

as exhibits

other accidents

and excluded
altogether.

of the Rule 31 depositions of other injured persons was

admitted or read
prejudicial

to the

jury, the court

and of little value.

excluding them

as

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
items

wrote to the Poliquins'

claimed to

be

covered by

counsel listing 214

the protective

order, and

requesting that the listed material be returned or destroyed.

Some of the 214

items had not previously been

confidential.
trial record.

Included in

the list

were

designated as

portions of

the

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

the

are

still

Protective

bound

Order" as

by

the

terms

to disclosure of

of

[August

2]

protected materials.

-5-5-

In

a signed

addendum, the

Poliquins' counsel

approved the

agreement and "acknowledge[d] continuing applicability of the

Protective Order and agree[d] to
this

agreement which

agree[d]"
shown

that he

comply with the portions of

apply to him."

would instruct

confidential material

not

The

counsel "further

any expert

or consultant

to disseminate

it and

to

return all
counsel.

documents or

other written materials

On November 27,

to defense

1991, the district court

formally

dismissed the case.

Shortly

before

November 25, 1991,

the

filed

confidentiality" asking
items

listed in

subject to

the

dismissal,
a

motion

"for

the court to
November

any confidentiality

13,

the

Poliquins

on

determination

of

rule that a

number of

1991, letter

restriction.

were

not

The Poliquins

argued that their counsel had independently learned the names

of

seven

injury

answered;
trial,

victims

that any
(e.g.,
___

before

information

the

Sluiter

the interrogatories
admitted into

deposition)

protected; that it would be wasteful

were

evidence

should

not

at
be

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
seal

opposed the motion

pendente lite
______________

confidential

-6-6-

and asked
material

the court
to

the

to

extent

contained in the court's file.

judge

By endorsements, the district

on December 10, 1991, granted Garden Way's request and

denied the Poliquins' motion.

district

court on

directed

that material

order

further

Then, on January 17, 1992, the

review of

subject to

be removed from the

Garden Way's

the August

court file by

Way and the

court then sealed

made during

the

subject to"

the August 2

2 protective

counsel for Garden

"all testimony and

trial dealing

request

with the

arguments

matters which

order, unless and

are

until otherwise

ordered by the court.

The Poliquins
10,

appealed to this court

both the December

1991, order denying its motion and the January 17, 1992,

order

sealing in

supporting them
Lawyers

part the

trial record.

has been filed

amicus brief

by the Association

of America and another in

Research Institute, Inc.

An

of Trial

opposition by the Defense

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.
At the

outset, we

THRESHOLD ISSUES
face

arguments on

important issues have been waived

an

both sides

or relinquished.

that

To raise

issue on appeal, a litigant must generally show the issue

was

raised in

the

trial

court

by

proper

request

or

the request

or

-7-7-

objection

and

that

the right

objection

was given at the

ground

time.

See
___

Smith, 823 F.2d

_____

660, 666 (1st Cir.

cases).

then,

Even

mistake

consenting

by

generally Clauson v.
_________ _______

1987) (collecting waiver

in

disregarded unless prejudice resulted

Fed. R. Evid. 103(a).

for

the

ruling

will

from the error.

be

E.g.,
___

Finally, nothing prevents a party from

stipulation

or

contract

not

to

pursue

litigation is

specific issue on appellate review.

The reason for
game,

the rules

is not that

like golf, with arbitrary

the players.

Rather,

rules to test

litigation is a

"winnowing process,"

Howell v. Federal Deposit Ins. Corp., No.

______
__________________________
at

15 (1st

preserving or

Cir.

Feb. 17,

waiving issues

which courts narrow what

1993),

and the

are part

the skill of

92-1542, slip op.

procedures

of the

remains to be decided.

for

machinery by
If lawyers

could

pursue on

there would be

appeal

issues not

little incentive

time and no end

of retrials.

properly raised

to get it

argument not

right the

Thus, while there are

hatches--"plain error," "miscarriage

rubrics--an

below,

escape

of justice," and

properly

preserved

first

in the

other
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

order on appeal.

right

to challenge

the protective

The argument may have more force as to some

-8-8-

of

the

information

in

dispute

(e.g.,
___

the

answers

specifically protected interrogatories) and less as

items (anything

arguably "added" by

to

to other

Garden Way's post-trial

letter to previously protected information).

But we need not

resolve

made

the

matter

because

Garden

Way

no

such

relinquishment argument to the district court when it opposed

the Poliquins' motion to determine confidentiality.

Although appellate
issues

waived or

666, this is and

pertinent to

courts

have discretion

abandoned at

to

resolve

trial, Clauson, 823

_______

F.2d at

should be uncommon, especially

the issue

are not

in the

where facts

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

argument whether
material.
facts

The parties'

incident

absent.

"the terms" apply

In all

to the

to all

intentions might be
negotiations,

events, we

itself waived the right

order, but it is

conclude

but

of the

open to
disputed

illuminated by
those facts

that Garden

to argue that the release

are

Way has
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
order.

opposition to the original request

for that

We think it plain that the Poliquins, having made and

pursued a timely

objection to the August 2 order,

-9-9-

are free

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

contend that Garden Way

tables, the

Poliquins themselves

lost the protection of the

order as to various depositions because they

"confidential"
Garden

Way

reply

were not marked

required

that some

by the

depositions

waiver argument was not made

of

order.
were not

delaying the designation

are obscure but need not

a determination

memorandum.

as

the midst of trial,

The facts

The Poliquins'
for

underlined

says in

received until
process.

and

August 2

confidentiality

Accordingly, this fact-bound

be determined.
in their motion

or the

supporting

argument is itself

unavailable on appeal.
III.
The August 2 Order.
___________________

THE MERITS
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

information after a specific finding of need.

Francis H. Hare, Jr.,

to
See
___

James L. Gilbert & William

Confidentiality Orders,
_______________________

4.10

(1988).

The

specific
generally
_________
H. ReMine,
magistrate

judge's order in this

case fell between these poles:

it was

-10-10-

based

on

an affidavit

cast

in broad

specific

interrogatory answers;

allowing

Garden

Way

to

terms;

and it

designate

it protected

set up

a mechanism

further

confidential

material subject to objection by the Poliquins.

District

judges

protective orders,
reflect that
good cause
requires"

need

to

latitude

and the Federal Rules

approach.
shown"

wide

of "any

"broad

discretion" to

appropriate

and what

Seattle Times Co. v.

________________

decide
degree

"when a
of

permits "for

order which

against annoyance,

undue burden occasioned by discovery.

designing

of Civil Procedure

Rule 26(c) generously

the making

protect

in

justice

embarrassment

or

The district court has

protective order

protection

is

Rhinehart, 467 U.S. 20, 36

_________

is

required,"
(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

U.S. 1030 (1989);

(1st Cir. 1988),

8 Charles

A. Wright &

Federal Practice and Procedure

______________________________
Here, we have

no doubt

Arthur R.

that the

of the showing needed

magistrate judge

used at trial,

was

Some trial judges take

to protect discovery.

But, in coping with the torrent of material often

but never

Miller,

2036 (1970).

entitled to enter the August 2 order.

a stricter view

cert. denied, 488

____________

other judges require

discovered
some general

showing by affidavit and then protect materials designated by

one side,

subject to challenge by

the other.

Apart

from a

-11-11-

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

order of

the

magistrate

judge

protection afforded or reaffirmed under the

own ancillary orders
1991.

These

of December 10,

orders

rejected the

release (1) the Sluiter

other accidents,

(2) court

victims (which were not

Rule

31

depositions of

the

district judge's

1990, and January

Poliquins'

request

17,
to

deposition and certain excerpts from

interrogatory answers (read into

to

but to

evidence at trial) relating

complaints filed

by certain

admitted at trial), and (3)

victims

(which

and the

likewise were

not

admitted at trial).1
Admitted Evidence.
__________________
district

court's

orders

Among the

items protected

are materials

that

by the

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.
-12-12-

admitted into evidence at trial: the videotape of the Sluiter

deposition

and

excerpts

interrogatory answers
no

read

for

admitted

reserved decision on
only

the

for (as earlier

its desire to

material

most

the

at

trial, and

the matter.

compelling

at trial.

from

There is

noted) Garden Way

enforce the protective

the

order even

district

court

We conclude, however, that

showing can

restriction on disclosure of testimony or

introduced

record

describing other accidents.

issue of waiver here,

made clear

into

justify

post-trial

documents actually

That showing has not been made in this

case.
We have
introduced

no doubt that, in
at trial

afterwards.
(1st

safeguarded against

disclosure

See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12

___ ________
____________

Cir. 1986).

the trial record

judge or jury

can be

rare circumstances, material

Material of many different kinds may enter

in various

for various

ways and be
purposes.

The

considered by
subject could

the
be

national security, the formula for Coca Cola, or embarrassing

details
at the

of private life.
bench and

The evidence might be offered only

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 rulebook to govern the range of possibilities.

-13-13-

One
showing

generalization,

however,

is

safe:

the

ordinary

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

presumptively public.
(1884) (Holmes, J.).
of individuals, but

criminal.

(distinguishing
available to

of

litigation

See Cowley v. Pulsifer,

___ ______
________

from

the

137 Mass. 392

Open trials protect not only the rights

also the confidence

justice is being done by its

well as

phase

See
___

of the public

courts in all matters, civil as

Seattle Times Co., 467

_________________

discovery

that

material,

the public, from trial

U.S. at

traditionally

33
not

evidence which normally

is available).
There is thus

an abiding presumption of access to trial

records and ample reason to "distinguish materials

into evidence

from the raw fruits of discovery."

v.

BIC Corp., 851 F.2d 673, 678,

________

As

we

have said

elsewhere,

submitted
Littlejohn
__________

684 & n.28 (3d Cir. 1988).

"`[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.
723 F.2d

1987) (quoting In re Knoxville News-Sentinal Co.,

_________________________________
470, 476 (6th Cir.

1983)).

692 F.2d 880, 893-94 (2d Cir. 1982).

Accord,
______

Joy v. North,
___
_____

In this case, there are

-14-14-

no

separate findings

need for post-trial

some cases

by the

district court

explaining the

protection of trial evidence.

"compelling reasons"

record, that is not so here.

might be apparent

While in
from the

Considering first

the description of other accidents in

the interrogatory responses, we believe no basis exists for a

finding

of "compelling

protection of
affidavit.

such
It

this

incidents is

amounts to

company's image
misuse

reasons."

set

threat

the

a garden-variety claim

among customers will be

may be

adequate

material;2

but

material is introduced in

defendants.
a larger
reports of

all

as

it

is

a ground

trials.

At

for

outweighed,

commonly generate

protecting
after

bad publicity

the

but the
in

press.

created by

This publicity may

injury is the
the absence

for

only details of

very disparaging one,

in the

least

In our view,

See Littlejohn, 851 F.2d at 685.

___ __________

picture, often a

unfair or distorted,

that the

damaged through the

Specific pieces of evidence are

the case

Miller

evidence, by the public's interest

in access to trial records.

Trials after

reason for

forth in

or distortion of those accident claims.

discovery

open

Garden Way's

price paid
of

be
for

extraordinary

____________________
2Some
courts
reputation warrants

have
questioned
whether
protection at all under Rule

corporate
26, e.g.,
___
(3d Cir. 1989).
In our

Smith v. BIC Corp., 869 F.2d 194

_____
________
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.
-15-15-

circumstances,
reason"

to

commercial embarrassment is not a "compelling

seal

a trial

record.

We

interrogatory answer excerpts at issue

have examined

the

in this case and find

nothing to alter our judgment.

The

videotape of

different problem

the

Sluiter

because Garden

confidentiality, made

a proffer

claims of embarrassment.

deposition

presents

Way, in arguing
which goes

about its

somewhat beyond

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
at

most

deposition after its introduction

only

trade

secret or

like

into evidence, but

material

of

unusual

importance.
In any event,
any

splicing of the

we see no
tape.

need for a remand

After reviewing

to consider

the deposition

transcript,

this

court

finds that

the

nothing

remotely comparable

to, say,

Cola or

even

trade

business

an

important

methods are

videotape contains

the formula

secret.

discussed but

for Coca

Garden

there are

Way's

no startling

-16-16-

revelations.

The

disadvantages

future litigation, not the

There

of disclosure

relate

to

conduct of Garden Way's business.

is no "compelling reason" here to restrict access to a

videotape already played in open court.

We

note

that

litigant

like

Garden

Way

has

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

secrets or other highly sensitive information.

403.
extent

This approach will not

it

applies,

it

can

trade

Fed. R. Evid.

solve every problem but, to the

mitigate

harm

impairment of public access to the trial record.

without

any

Public Records.
_______________

The

Poliquins next

object

to

the

protection after trial of copies of civil complaints filed in

other courts against
other

cases.

None

evidence at trial.
claim

that

independently

their

Garden Way by other accident victims in

of these
Nor

complaints

do we understand

attorney

of discovery.3

obtained
The

was

accepted in

the Poliquins
the

issue, then,

to

complaints
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.).
_____
-17-17-

the character of the complaints as

"good cause" cannot
even though

public records means that

exist for protecting them under

they were obtained by

Rule 26

compulsory discovery from

the party seeking protection.

At

first blush, it might appear odd to safeguard with a

protective

order

"public"

country can secure

the

material

Yet, one can

where

assembly represent
finder and

anyone

in

the

easily imagine "public"

difficulties

of

discovery

a significant investment

barrier to

"trade secrets"

that

by visiting a government office and using

copying machine.

archival

documents

easy

by the original

replication.

are duplicable with enough

and

Indeed,

most

time and effort.

The futility of protecting a "public" document might persuade

a

court

to deny

blanket rule
where the

protection.

But we

see

forbidding Rule 26 protection

"public"

document is

no basis

for a

in all instances

obtained through

discovery

under an otherwise justified protective order.

The

"public" character

reason given by the

We

therefore

have

of the

complaints is

the only

Poliquins for ordering their disclosure.

no

reason

to

consider

whether

the

magistrate judge's original inclusion of the complaints under

the

protective order

was error

for any

other reasons.

protective order may often specify categories

for protection

without document by document

-18-18-

of information
review, and the

design of the order is in any event largely

within the trial

court's discretion.
The Rule 31 Depositions.
_________________________
dispute are the

Rule 31 depositions

not admitted into

narrow.
claim

The

must

Poliquins, as

be

Nor do

especially
Anderson
________

the
v.

plaintiffs

the depositions

in

order

authorities,

Cryovac, Inc.,
_____________
to disclose

information
In

advising

the

to
of

F.2d

chemicals in

of

their

timely

the

public,

and

danger.

at

Cf.
__

(permitting

authorities discovery

this case, nothing prevents

government

was not

an unknown

805

waived any

that the depositions

advise

to government

regarding toxic

supply).

said, have

the Poliquins assert

disclosed

victims

The issue before us is

we have

for

documents in

of 23 accident

evidence at trial.

that protection

sought.

The remaining

the city's

water

the Poliquins from

claim

that

the

Super

Tomahawk is defective.
The

Poliquins

depositions is

instead

warranted to

discovery

in

other

appeal in

time of

dockets,

argue

cases.4
swollen

but it looks at

avoid
The

that

disclosure

of the

wasteful duplication
argument

litigation cost

only one element

of

has a

surface

and

crowded

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.
-19-19-

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

discovery,

with

affording

relatively

material.

Impairing

including
and

found in

minimum

of

many cases
disputes,

generous
this

that effective
is

protection

process

has

achieved
to

by

discovery

immediate

costs,

the delay of discovery and the cost to the parties

the court of resolving objections that would not be made

if a protective order were allowed.

For these reasons, the
retains

broad

despite

the

litigants in

discretion
burden

of

future cases.

district court under current law

to

protect

re-discovery
There have

discovery
imposed

material,
on

future

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,

_______________________________
502 (1991).

In all events, Congress has not altered the law.

Where the
discovery,

105 Harv. L. Rev. 427, 477-

district court does

it is common to

protect material

during

provide, as the magistrate judge

-20-20-

did here,
destruction

for post-trial protection including

of

protected

material.

In

most

the return or
cases,

the

lubricating

effects of

discovery would be
the

499-500.

on

pre-trial

order expired at the

to ready alteration.

is always

end of

See Miller,
___

Nevertheless, a protective

ongoing injunction,

power

protective order

lost if the

case or were subject

supra, at
_____
any

the

subject to

order, like
the inherent

of the district court to relax or terminate the order,

even after judgment.

This
ongoing

retained

Public Citizen, 858 F.2d at 781-82.

______________
power

directives

in the

provides

court
safety

interest concerns, changed circumstances

that may
such a

reasonably be offered for later

request is made to

to

alter its

valve

for

basis

adjustment.

Where

the district judge and

an appeal

standard of review broadly

is abuse of discretion.

Id. at 790-92.
__

that the

district court

public

or any other

thereafter follows, the

suggests

own

speaking

Nothing in this case

abused its

discretion in

refusing to lift the protective order for discovery materials

not introduced at trial.
The

orders

modified to
________

of

the

exclude from

district court
their scope

under

review

the videotape

of the

Sluiter deposition and

the interrogatory answer excerpts

the

evidence,

extent

read into

orders are otherwise affirmed.

________

and

the district

No costs.

are

to

court's

-21-21-

KEETON,

District
Judge
________________

(Dissenting).

respectfully dissent on the ground that this court is without

jurisdiction to
that the
to

hear this

appeal, and, in

most we have jurisdiction to

vacate aspects

of the

the alternative,

do, and should do, is

district court

orders that

were

beyond the district court's jurisdiction.

I.
I.
The
named

Jurisdiction Over the Appeal

Jurisdiction Over the Appeal
____________________________

briefs filed in

parties

concerning the

present

this case by

issues of

nature and scope of

counsel for the

fundamental

significance

protective orders issued

by district courts during pretrial proceedings and concerning

settlements

on

Amicus briefs
______
attorneys

terms

that

(filed on

who commonly

leave such

orders

in

effect.

behalf of separate

associations of

represent plaintiffs

and defendants

respectively in product liability actions) reflect widespread

interest in the bar.
The

importance

of

the

issues

underscores

the

importance

of

jurisdiction.
the bar

this court's

I recognize how pressing

and

trial judges

important unsettled
in

the

district

however,

are

jurisdictional
constraints

sensitivity

the

in

to

limits on

are the interests of

having clear

guidance

issues that are confronted

courts.

At

least

interests

authority.

against issuing

must respect

about

almost daily

equally

underlying

We

its

compelling,

limits

on

our

constitutional

advisory opinions when

no live

-22-22-

case or controversy is presented to the court by real parties

in interest.
A.
A.

Interest of the Poliquins

Interest of the Poliquins
_________________________
As noted

in Part

of the

Court's Opinion,

the

Poliquins, nominally the appellants

in this case, received a

check

a "release and indemnity

from Garden Way and executed

agreement"
"[r]eleasors

that
and

included

their attorney

provision

declaring

acknowledge that

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

have been made in return

offer for this

settlement than would

for a release that did

not include

the provision binding the Poliquins and their attorney by the

terms of the
most

favorable

legally
record
the

protective order.
to an

protected

argument

interest at

Also, viewed
that the
stake

in

in the

Poliquins

light
have a

this appeal,

the

fails to show that they have any tangible interest in

outcome of this appeal

suggest

the contrary).

(if indeed it
Also, again

does not strongly

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
subject to

fact that

the Poliquins

an ongoing protective order

are named

as people

does not demonstrate

-23-23-

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

the

"protective

accurately

order"

stated,

agreement --

of

as

court

protective

only because

--

or

perhaps

terms

of

the Poliquins and

more

settlement

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

agreement incorporating
by

reason

of

of

order

those terms.

this bar,

interest that would give

the

the

the

Poliquins

or

the

settlement

conclude also that,

lack

the kind

them standing in this court

of

(or in

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

thereafter appeal

a court

a party

who settles a

case cannot

order entered previously

in that

case is confirmed in precedent and is comprehensive in scope.

Any

case

or

controversy previously

existing

parties is moot after complete settlement.

v.

between

the

See Lake Coal Co.

___ _____________

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,

___ _____
__________

-24-24-

743-44 (1982)

(case not moot after

agreement fixing damages

dependent

on outcome of appeal), when a party enters into an

agreement

encompassing a

controversy

exists

specific

over that

issue, no

issue.

See
___

live case
13A

Wright et al., Federal Practice & Procedure

_______ _____________________________
("A

partial

settlement,

settlement moots

issues

One context in which appeals

concerns appeal of a

to

reserve

"may not

accepted."

at 234

involved in

the

have been dismissed

to a remittitur "under
a

"right to

appeal from

Donovan v.
_______

(1977) (per

3533.2

trial court order of remittitur.

when a plaintiff agrees

plaintiff

Charles A.

but not those that the parties did not intend to

settle.").

purports

the

or

appeal

protest" and

therefrom,"

a remittitur

order he

Penn Shipping Co., 429 U.S.

_________________

curiam) (affirming circuit court's

Even

the
has

648, 650

dismissal of

appeal).
Here,

the settlement agreement purported to settle

the entire controversy, and the Poliquins specifically agreed

to

abide by the

controversy

terms of the

between Garden

protective order.

Way and

the Poliquins

Any legal
over the

propriety of the protective order, therefore, is moot.

Because the
order was

legal controversy over

rendered moot

by

the settlement,

decide the important issues argued

the

parties

waived

any

DeFunis v. Odegaard,
_______
________

we should

not

before us, whether or not

jurisdictional

416 U.S. 312,

the protective

impediment.

316 (1974) (per

See
___
curiam)

-25-25-

(determining that in federal courts, a case is not saved from

mootness by "great public
even

if that

circumstance

state's legal system).

protective

interest in the continuing issues"

order

Resolution of

should

principles, and not the

might permit

be

jurisdiction in

any dispute over

resolved

under

a
the

contract

(moot) legal controversies addressed

by the opinion of the Court in this case.

Wright et al., Federal Practice & Procedure

See 13A Charles A.

___
3533.2 at 233-34

______

____________________________

("[Q]uestions
mootness

arising

questions

out

of

settlements,

should

be

answered

[manifested] intent of the

[as

well

as]

to

the

according

parties and more general contract

principles.").
B.
B.

Interest of the Poliquins' Attorney

Interest of the Poliquins' Attorney
___________________________________
Any interest

challenging

the Poliquins'

the terms that both the

to as part of

attorney may

Poliquins and he agreed

the settlement cannot properly be

this appeal as

an interest

suggestion to the contrary

its inconsistency

have in

of the Poliquins.

asserted in
Indeed,

is troubling not only because

with precedents,

to be considered

any
of

below,

but also because it raises a problem of potential conflict of

interest between the Poliquins and their attorney.
A
cash,

may

and a party plaintiff may

condition
force

party defendant

that the

terms

after the settlement.

of a

be willing

to offer

more

be willing to accept it, on

protective order

remain in

An attorney, on the other hand,

-26-26-

might

naturally

agreement
affect

be

than the
the

more

or

client.

less
The

attorney-client

resistant

to

such

potential conflict

relationship

both

an

might
during

settlement negotiations and in further proceedings before the

court

after

the final

judgment

settlement proceedings in this

attorneys

of

dismissal.

In

post-

case, of course, the opposing

were formally appearing not

each in his own right

but each for his client or clients.

C.
C.

Real-Party-in-Interest and Constitutional Requirements

Real-Party-in-Interest and Constitutional Requirements
______________________________________________________
Federal Rule

of Civil Procedure

"[e]very action shall be

party

in interest."

17 requires

prosecuted in the name of

Fed.

R.

Civ. P.

17(a).

that

the real
It may

be

debatable whether this rule applies to proceedings in a court

of appeals.
procedure

See Fed.
___

R. Civ. P. 1 ("These rules

in the United States district

exceptions stated in Rule 81.").

courts ... with the

See also Fed. R. Civ. P. 81

________

(containing no specific provision regarding

proceedings

in a

court of

real-party-in-interest

govern the

appeals).

requirement

applicability to

Something akin

nevertheless applies

to a
to

appeals because

of the constitutional requirement

of a case

or controversy.

See
___

54 (1986)

Diamond v. Charles, 476 U.S.

_______
_______

(appellant pediatrician did not have

interest

in defending Illinois

a judicially cognizable

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

____ _____
_____________________

-27-27-

(1992) (the "injury in

cognizable

fact" test requires both injury

interest and

showing that

review is among the injured

the party

to a

seeking

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

the

party or

parties taking

3(c), and this requirement has

the appeal,"

shall specify

Fed. R.

App. P.

been rigorously enforced.

court of appeals is without jurisdiction to hear an appeal on

behalf of a person
of

appeal as

who has not been specified

party taking

the appeal.

in the notice
See Torres
___ ______

Oakland Scavenger Co., 487

_____________________

U.S. 312 (1988);

v. Soto-Santiago, 863 F.2d

_____________

174 (1st Cir. 1988).

v.

Santos-Martinez
_______________
This court

has dismissed an appeal

decision

after

the

interests they had in

that an attorney sought to

attorney's
the appeal.

clients

had

press to

settled

Pontarelli v.
__________

all

Stone, 978
_____

F.2d 773 (1st Cir. 1992).

D.
D.

Conclusion
Conclusion
__________
In view of the likelihood, suggested by the record,

that

the only

named

no legally

protected

interest at stake in

this appeal, I conclude that

we should

dismiss

unless,

this appeal

appellants have

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

-28-28-

have a legally protected

interest that would be

the outcome of this appeal.

II.
II.

Jurisdiction of the District Court

Jurisdiction of the District Court
__________________________________

affected by

In
should

view of

the rejection of

my position

that we

dismiss the appeal in this case for want of appellate

jurisdiction,

I turn

next

to considering

district court's jurisdiction and

limits upon

the

the effect of those limits

upon the jurisdiction of this court.

Once this court determines that it has jurisdiction
of

this appeal for any

court should

at

least

purpose, I do
exercise

not question that the

jurisdiction

to

consider

whether the district court erred in making an order in excess

of

its

jurisdiction.

limited, however,
orders

This court's

to authority to

of the district court that

jurisdiction

vacate any aspect

may

be

of the

the district court lacked

jurisdiction to make.
If
appealed

the district

from (the

December 10,

orders) made an order

or narrowing

the scope

order), it erred.

The

in either

of its

1991 and January

on the merits (for

of the magistrate

orders
17, 1992

example, expanding
judge's August

district court lacked jurisdiction to

enter such

an order in

dismissal,

by reason

of a

having been entered).

See
___

court's error

court,

a closed

case (a final

settlement between
Part I.A, above.

in this respect cannot

-29-29-

judgment of
the parties,
The

district

confer jurisdiction on

the

court of appeals to reverse

thereby

in part and affirm in part,

making a different order on the merits; instead, our

jurisdiction

is limited

district court

to

ordering that,

orders appealed

insofar as

from purported to

the

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
interest

(for

reasons

they are no longer real parties

explained

believe it imperative also

in Part

I.C,

that this court

be

above),

made on

behalf of

before the motion was

the Poliquins

as

subject to

enough

in that

act on a
court if,

filed, the Poliquins had ceased

real parties in interest.

The fact they are

the terms

of the

sensitive to

limits on the jurisdiction of the district court to

motion

in

to be

formally named

"protective order"

is not

to give them either a practical interest or a legally

protected

interest

to

support

their

modification of a "protective order" to

motion

seeking

which they agreed as

part of the settlement.

In
Procedure

17

the
was

district

court,

applicable

Federal

without

Rule

doubt.

of
Also,

Civil
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

-30-30-

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
Protective

2, 1991.

Order

at

Garden

The magistrate
Way's

judge made

request

and

over

the
the

Poliquins' opposition.

The

Poliquins appealed this order to

the

who

affirmed

district

erroneous."

judge,

it

as

not

"clearly

An appeal to the court of appeals was dismissed

because the order was interlocutory.

October 24,
response to a
free

from any

1991.

During a pretrial

hearing, in

suggestion by plaintiff's attorney

restriction

offered in evidence at

against

disclosure of

that he be
material

trial, defendant's attorney disagreed

and stated, "I will request that those exhibits be returned."

The

district court replied:

over,

whatever rights you

"Correct....
have ...

When the trial is

to control

the further

dissemination of the material, you can invoke."

November
Defendant's

4,

1991.

Memorandum in

for Determination

[This

date

Opposition to

trial, the parties

in

Plaintiffs' Motion

of Confidentiality at 1

trial commenced on October 28, 1991).]

had settled.

is indicated

(seven days after

On this date,

reported to the district

during

court that they

The court discharged the jury.

-31-31-

November

13,

1991.

Defense

counsel

plaintiffs' counsel

listing 214 items claimed

by

Order

the

Protective

material be returned or

and requesting

destroyed.

not previously been designated

wrote

to

to be covered

that

Some of these

as confidential.

the

listed

items had
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

"release and indemnity agreement" and received

agreement

stated

that

acknowledge that they

Protective Order"
In

an

"[r]eleasors

are still

as to

addendum,

and

plaintiffs'

a check.
their

bound by the

disclosure of

executed

a
The

attorney

terms of

the

protected materials.

attorney

signed

an

acknowledgement that the agreement was binding on him.

November 25, 1991.
final judgment

Two days

of dismissal

the "release and indemnity

before entry of

and seven days

the

after executing

agreement," the Poliquins filed a

motion "for determination of confidentiality".

November
judgment of
made

no

either in

27,

1991.

dismissal of

reference to
its

interpreted or

August

The

clerk

the action.

the

terms of

2nd

form or

That
the
as

modified by the district

final

final judgment

protective order,
it

may

have

been

court's oral ruling

in the pretrial hearing of October 24, 1991.

-32-32-

entered a

December
plaintiffs'
the court

5,

1991.

Defense

counsel

sent

to

counsel and the court a letter, later treated by

as defendant's

Motion to Seal

Documentation from

its File Until Parties Come to An Agreement.

December

9,

1991.

Defendant

filed

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.
entered

an

"Order

on

The court signed and

Defendant's

Motion

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

the clerk
to

Seal

Garden
Way
Incorporated.
The
documentation which is to be removed is
-33-33-

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

Memorandum

in

Determination

of

December 10, 1991 and January 17, 1992 orders.

It
Opposition

is
to

true

that

Garden

Plaintiffs'

Motion

Confidentiality does not argue

Way's
for

that the district court lacks

jurisdiction to grant plaintiffs' motion.

that

the

district

court

should

deny

Instead, it argues
plaintiffs'

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

motion

Plaintiffs to disseminate this protected

information on a nationwide basis.
Defendant's
for

Memorandum in

Determination

of

Opposition to

Plaintiffs' Motion

Confidentiality, 12/9/91,

quoted

in

Addendum to Reply Brief of Appellants, at 17.

It
after the

is

true also

that

defendant's counsel,

too,

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

-34-34-

listed material be
not disclose that
apparently

it

returned or destroyed.
this request

was

plaintiffs' motion of
second

brought

was made to

to

the

November 25,

request was made by

The record
the court,

court's
1991.

does

In

letter of December

but

attention

by

any event,

5, which the

court treated as a motion to seal.

Even

if the separate requests

parties were treated as a

the

court's

exercise

to the court by all

manifestation of their consent

of

jurisdiction

to

to

consider

modifications of

the protective order, such

made

court

after

the

dismissal

cannot confer

district

court contrary

had

entered

jurisdiction
to the

a joint request

final
on

judgment

of

United

States

limitations imposed

by the

Constitution and laws of the United States.

This
court

when

point is

dismissing

reinforced by
the

appeal

the comment

from the

of this

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
all of the

into the

settlement agreement of

terms of the protective order as

some or

they existed at

-35-35-

the

moment of

execution

of the

settlement agreement,

the

record before us

lacks complete clarity about the

which protective

terms survive as

court, even though not

or

only as

an order of

extent to

the district

incorporated into the final judgment,

terms of

the settlement

partes, or (perhaps by

agreement between

analogy to a consent decree)

the

in some

combination of court order and agreement of the parties.

For
the

present purposes, nevertheless,

district court

ruling

upon any

agreement.
court

is

motion

and --

consistently with
enforcement of

any
should
the law

from considering

for enforcement

Also, incident

may consider

agreement

not precluded

to such a

request for
grounds

I assume that

of the

settlement

motion, the

district

interpretation of

be

shown for

applicable to

contracts -- may receive

and

doing

the
so,

interpretation and
evidence to resolve

any ambiguity in the settlement agreement.

The motions before the court in this case, however,
as well as the
1992, were

orders of December

10, 1991 and January

focused on proposed modifications

protective order

as

an order

of

the court

effect beyond

the execution of the

of the

case.

The

their

attorneys,

interpretation and

motions were
or

the

17,

of the court's
continuing

in

settlement and dismissal

not viewed by
court

enforcement of the

as

the parties,

motions

seeking

settlement agreement.

In these circumstances, even if we have jurisdiction to treat

-36-36-

the motions in the district court as if they

enforce (and

interpret)

the settlement

were motions to

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.

attorneys

nor the

proceeding to
been argued
course

district

enforce the
before

settlement.

us from

is to allow the

court viewed

the

Neither the
matter as

Nor has the

this perspective.

contentions of the

The

matter
better

parties, and any

evidence relevant to their contentions, to be developed first

before the district court.
In any event,
to modify

exercising jurisdiction over motions

the protective order of

different matter

from exercising

settlement agreement.
be dismissed

for want

August 2, 1991

is a very

jurisdiction to

enforce a

If the appeal now before us is

of jurisdiction,

not to

I conclude that

we

should (a) vacate the district court's orders of December 10,

1991 and January 17,
and continue in force,
August 2,

1992,

1992 insofar as they purport

as modified, the protective

and (b)

remand

with directions

to modify
order of
that

the

district
further

court decline
motion by

agreement,

or

any

their

to

exercise

of

the

jurisdiction over

parties to

attorneys,

seeking

the

settlement

substantive

modification of the protective order to which they

part of their settlement.

-37-37-

any

agreed as