113 F.R.D. 86 (D.N.J. 1986), C. A. 83-2864, Cipollone v. Liggett Group, Inc.

Docket Nº:Civ. A. 83-2864, 84-678.
Citation:113 F.R.D. 86
Opinion Judge:SAROKIN, District Judge.
Party Name:Antonio CIPOLLONE, Individually, and as Executor of the Estate of Rose D. Cipollone, Plaintiff, v. LIGGETT GROUP, INC., a Delaware Corporation; Philip Morris Incorporated, a Virginia Corporation; and Loews Theatres Inc., a New York Corporation, Defendants. Susan HAINES, etc., Plaintiff, v. LIGGETT GROUP, INC., et al., Defendants.
Attorney:Raymond F. Dryzdowski, Brown & Connery, Kulp, Wille, Purnell & Greene, Westmont, N.J., for defendant Philip Morris Inc. Mark Z. Edell, Budd, Larner, Bross, Picillo, Rosenbaum & Sade, Short Hills, N.J., for plaintiffs.
Case Date:November 12, 1986
Court:United States District Courts, 3th Circuit, District of New Jersey
 
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Page 86

113 F.R.D. 86 (D.N.J. 1986)

Antonio CIPOLLONE, Individually, and as Executor of the Estate of Rose D. Cipollone, Plaintiff,

v.

LIGGETT GROUP, INC., a Delaware Corporation; Philip Morris Incorporated, a Virginia Corporation; and Loews Theatres Inc., a New York Corporation, Defendants.

Susan HAINES, etc., Plaintiff,

v.

LIGGETT GROUP, INC., et al., Defendants.

Civ. A. Nos. 83-2864, 84-678.

United States District Court, D. New Jersey.

November 12, 1986

Action was brought against tobacco companies by individuals and estate executor, magistrate's protective order prohibiting nonconfidential discovery materials from being disclosed to public or to plaintiffs in similar litigation was reversed in various aspects, and plaintiffs sought mandamus in Court of Appeals. After writ was issued, the District Court, Sarokin, J., held that: (1) tobacco companies had failed to demonstrate " good cause" for protective order, and (2) order permitting tobacco companies to make initial designation of confidentiality was not clearly erroneous or contrary to law.

Ordered accordingly.

See also 3 Cir., 802 F.2d 658.

Raymond F. Dryzdowski, Brown & Connery, Kulp, Wille, Purnell & Greene, Westmont, N.J., for defendant Philip Morris Inc.

Mark Z. Edell, Budd, Larner, Bross, Picillo, Rosenbaum & Sade, Short Hills, N.J., for plaintiffs.

OPINION

SAROKIN, District Judge.

This matter is now before the court pursuant to defendants' receipt of a writ of mandamus from the Third Circuit. Specifically, the Third Circuit's opinion directed this court to (1) reconsider its prior decision reversing various aspects of a magistrate's protective order in light of the " good cause" standard of Rule 26(c) of the Federal

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Rules of Civil Procedure, and (2) to reconsider its reversal of that aspect of the magistrate's protective order which permits the party seeking protection from dissemination to designate documents confidential without first establishing good cause to do so on a document-by-document basis. The court proceeds to do so.

The order heretofore entered in this matter prohibited all discovery of defendants from being disclosed either to the public in general or plaintiffs in other similar litigation. Before defendants are entitled to such a protective order they are required to establish that there is " good cause" for its entry and continuance.

The general focus of discovery in this matter has been the knowledge of the defendant tobacco companies regarding the risks of cigarette smoking and what action was taken to conceal or minimize these risks and neutralize the required warnings.

The Third Circuit has made it clear that first amendment considerations are not implicated in this analysis. It is thus this court's duty to abide by that mandate. However, the court expresses its concern if the public interest is eliminated as a factor in determining whether discovery should be protected from disclosure.

Discovery may well reveal that a product is defective and its continued use dangerous to the consuming public. The public disclosure of that information will certainly embarrass that party and cause it financial loss. It is inconceivable to this court that under such circumstances the public interest is not a vital factor to be considered in determining whether to further conceal that information and whether a court should be a party to that concealment.

However, even ignoring the public interest, defendants have failed to demonstrate any good cause for the concealment of otherwise non-confidential materials from the public in general. Defendants' arguments are even less persuasive with respect to related litigation. By requiring each plaintiff in every similar action to run the same gauntlet over and over again serves no useful purpose other than to create barriers and discourage litigation against the defendants. Good cause as contemplated under Rule 26 was never intended to make other litigation more difficult, costly and less efficient.

BACKGROUND

The protective order at issue here was entered on March 25, 1985 by the Honorable Robert E. Cowen, United States Magistrate. As noted by this court in its prior opinion in this matter, the order limits the extent to which one party may disclose certain confidential information made available by its opponents during discovery proceedings. Specifically, the order provides that " [a]ll information produced or exchanged in the course of this civil action or any appeal arising therefrom ... shall be used solely for the purpose of this case," (para. 2), and shall be returned or destroyed after trial. (para. 13.) More complex limitations are imposed upon " confidential information" . If a party has a " good-faith belief that the information falls within the scope of confidential information under the Federal Rules of Civil Procedure", (para. 3) it may label such information accordingly, and it is then to be filed, or otherwise utilized, under seal (para. 11-12).

Once labelled, confidential information is, under the order, open for inspection only by counsel or their associates or employees (para. 6(a)), or by experts retained for the purposes of the litigation (para. 6(b)), but the latter are required to sign an oath attesting to their understanding that they are bound by the terms of the order (para. 7). In the event of any disclosure, counsel and the court, shall be advised, in writing, of the name, address and occupation of the person to whom counsel propose to disclose, for the purposes of this litigation, said confidential information. Id. Additional protections or other modifications of the order may also be sought.

Plaintiffs appealed this order, arguing that it constituted an abuse of discretion and a violation of both the first amendment and of basic discovery principles. By opinion

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dated July 17, 1986, this court found merit in a number of plaintiff's contentions, concluding (1) that the court should engage in a de novo standard of review because first amendment rights were implicated by the protective order; (2) that according to Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17 (1984), protective orders such as the one here at issue limit first amendment freedoms unless they are no broader than necessary to protect the governmental interests furthered by Rule 26(c), see Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (" First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression .... Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." ); (3) that the order violated Rule 26(c) and also the first amendment by shifting the burden with regard to confidentiality designations from the party desiring such designation to the protesting party; (4) that the order improperly restricted the use of non-confidential discovered materials to use in this case; and (5) that the order likewise improperly prohibited plaintiffs' attorneys from using confidential material in other litigation in which they are participants. Cipollone v. Liggett Group, 106 F.R.D. 573 (D.N.J.1985).

Defendants appealed, and in the alternative sought mandamus. The Third Circuit found this court's order to be nonappealable, Cipollone v. Liggett Group, 785 F.2d 1108, 1117 (3d Cir.1986), but concluded that it did have mandamus jurisdiction pursuant to 28 U.S.C. § 1651, because the matter at issue involved the disclosure of confidential materials, 765 F.2d at 1118. The Third Circuit thereupon determined that this court had erred in two ways. First, it had misread Seattle...

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