San Juan Star Co., In re

• Decision Date: 26 October 1981
• Docket Number: 81-1137 and 81-1221,Nos. 81-1086,81-1096,s. 81-1086
• Citation: 662 F.2d 108
• Parties: 7 Media L. Rep. 2144 In re SAN JUAN STAR COMPANY, Petitioner, Pedro Juan SOTO, et al., Plaintiffs, Appellants, v. Carlos Romero BARCELO, et al., Defendants, Appellees, In re Pedro Juan SOTO, et al., Petitioners, Pedro Juan SOTO, et al., v. Carlos Romero BARCELO, et al., Miguel Hernandez Agosto, Intervenor, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 108

662 F.2d 108

7 Media L. Rep. 2144

In re SAN JUAN STAR COMPANY, Petitioner,

Pedro Juan SOTO, et al., Plaintiffs, Appellants, v. Carlos Romero BARCELO, et al., Defendants, Appellees, In re Pedro Juan SOTO, et al., Petitioners, Pedro Juan SOTO, et al., v. Carlos Romero BARCELO, et al., Miguel Hernandez Agosto,

Intervenor, Appellant.

Nos. 81-1086, 81-1096, 81-1137 and 81-1221.

United States Court of Appeals, First Circuit.

Argued May 8, 1981.

Decided Oct. 26, 1981.

Bruce W. Sanford, Cleveland, Ohio, with whom Lee Levine, Baker & Hostetler, Cleveland, Ohio, Arturo Trias, and Francis, Doval, Munoz, Alevedo, Otero & Trias, Hato Rey, P. R., were on petition, for The San Juan Star Company.

Jose Antonio Lugo, New York City, with whom Pedro Varela, Hato Rey, P. R., Michael Avery, Boston, Mass., Peter Berkowitz, Rina Biaggi-Garcia, Rio Piedras, P. R., and Alberto Omar Jimenez, Boston, Mass., were on brief for Pedro Juan Soto, et al.

Hector M. Laffitte, Hato Rey, P. R., with whom Laffitte & Dominguez, Hato Rey, P. R., was on answer to petition, for Angel Perez Casillas, et al.

Vannessa Ramirez, Hato Rey, P. R., with whom Hartzell, Ydrach, Mellado, Santiago & Perez, Hato Rey, P. R., was on brief, for Alejandro Gonzalez Malave.

Richard L. Cys, Joyce E. Mayers, and Verner, Liipfert, Bernhard & McPherson, Washington, D. C., on brief, for Carlos Romero Barcelo.

Richard M. Schmidt, Jr., Robert C. Burns, Jack Landau, and Sharon Mahoney, Washington, D. C., on brief for The American Society of Newspaper Editors and The Reporters Committee For Freedom of the Press, amici curiae.

Marcos A. Ramirez Lavandero, Hato Rey, P. R., with whom Marcos A. Ramirez, and Jose A. Nazario, Hato Rey, P. R., were on brief, for appellant in no. 81-1221.

Richard L. Cys, Washington, D. C., with whom Joyce E. Mayers, Verner, Liipfert, Bernhard & McPherson, Washington, D. C., A. Santiago Villalonga, Vannessa Ramirez, Hartzell, Ydrach, Mellado, Santiago & Perez, Hato Rey, P. R., and Roberto Armstrong, Jr., Deputy Sol. Gen., Dept. of Justice, San Juan, P. R., were on joint brief, for appellees in no. 81-1221.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

COFFIN, Chief Judge.

On July 25, 1978, in what was to become one of the most controversial and well-publicized events in recent Puerto Rico history, two suspected terrorists were killed in a shootout with police officers at a mountainous location known as Cerro Maravilla. Young members of a radical pro-independence group, the two were allegedly on their way to sabotage a nearby communications facility when slain. Coming as it did in the midst of a heated debate over the island's political future and on the eve of a closely contested electoral campaign the Cerro Maravilla incident attracted widespread popular and political attention.

One of the several aftershocks of that incident was a federal civil rights action brought by relatives of the two deceased, in which they alleged that police officers, senior law enforcement officials and the Governor of Puerto Rico had conspired to arrange the killings. That suit, which among other things calls into question the validity of two earlier Commonwealth Justice Department reports exonerating the defendants, has itself stirred enormous interest and publicity in Puerto Rico. Media coverage of the developing litigation has been intense, with defendants' deposition testimony in particular reported together with explanations provided by both sides virtually at the time it was given.

In response to this publicity, the district court issued several orders. The first, which was reaffirmed by that court several times, limited physical attendance at all subsequent depositions to attorneys of record and clerical assistants. That order was sustained by us on an earlier review, and is not presently before us in any fashion. The second, which the district court has also reaffirmed on reconsideration, prohibits attorneys from disclosing any evidence obtained through subsequent depositions to the press, to the litigants themselves, or to any third party. Emphasizing that all information would become public once trial began, the court described its order as a protective order governing the taking of depositions under Fed.R.Civ.P. 26(c), with the requisite "good cause" found in a "reasonable likelihood" that the wide dissemination of prejudicial publicity would otherwise deny the defendants a fair trial.

The third order issued by the district court arose in part from these developments and in part from an entirely independent sequel to the Cerro Maravilla incident. After the two Justice Department inquiries into the killings exonerated all officials of any wrongdoing, and after each investigation was attacked by opponents of the administration as biased and incomplete, the Commonwealth Senate authorized the issuance of two subpoenas for investigation-related documents in the Department's possession. The fact that some of the documents subpoenaed were identical to those on which the district court had imposed the second protective order described above touched off what may be described as an internal combustion cycle of confrontation among three branches and two sovereigns. Invoking the district court's protective order which provided that "only plaintiffs, their attorneys, and paralegals of record" were to have access to the documents, and that they were "in no way to divulge their contents to any person or entity" the Secretary of Justice refused to comply with the legislative subpoena and moved to quash it in the federal lawsuit. The Secretary asserted that complying with the subpoena would violate the protective order, affront the integrity of the court, deny him a federally-recognized privilege, and deny the defendants the fair trial the order sought to ensure. The police defendants joined the motion, and the President of the Senate intervened in the federal proceeding for the purpose of opposing the motion. The district court subpoenaed the President to testify regarding the legislature's motives for issuing its subpoena; the President moved to quash the court's subpoena on grounds of legislative immunity, the court held immunity inapposite, and defendants called the President to the stand. The President refused to answer questions regarding legislative motivations, the court ordered him to answer, the President refused, and the court ordered the legislative subpoenas quashed.

In the wake of these developments, three separate parties raise three distinct issues before us. First, intervenor The San Juan Star challenges that portion of the district court's order prohibiting disclosure of deposition evidence to members of the press or public. Second, plaintiffs seek review of that portion of the same order barring their attorneys from disclosing the contents of depositions to them. Finally, intervenor Miguel Hernandez Agosto, President of the Puerto Rico Senate, asks us to reverse the court's order quashing the Senate's subpoenas. We consolidated these cases and heard them on an expedited basis.

I.

At the outset we face a question of appellate jurisdiction. Because the orders contested are interlocutory in character, we must determine whether each satisfies the criteria of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), which we recently set forth as follows:

"Four requisites of appealability under this exception can be gleaned from the Cohen opinion and the cases applying it. The order must involve: (1) an issue essentially unrelated to the merits of the main dispute, capable of review without disrupting the main trial; (2) a complete resolution of the issue, not one that is 'unfinished' or 'inconclusive'; (3) a right incapable of vindication on appeal from final judgment; and (4) an important and unsettled question of controlling law, not merely a question of the proper exercise of the trial court's discretion." In re Continental Investment Corp., 637 F.2d 1, 4 (1st Cir. 1980), quoting United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979).

In addition, we observed that the third criterion, variously referred to as urgency or irreparable harm should be the "central focus" and perhaps even the "dispositive criterion" of appellate jurisdiction over such orders. Id. at 6-7. The first and second criteria separability and finality were described as facets of the analysis of urgency, while the last, importance, was said to be either another facet of that element or simply not relevant. Id. We turn to the orders before us in the light of these standards.

First, we consider briefly the separability and finality components. While many discovery orders are typically not sufficiently separable from the merits of the underlying dispute to meet this part of the Cohen test, see Grinnell Corp. v. Hackett, 519 F.2d 595, 597 (1st Cir.), cert. denied sub nom. Chamber of Commerce v. United Steelworkers, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975), we think the orders in this case do satisfy the requirement. All issues presently before us derive from the district court's attempts to limit publicity concerning the civil rights action before it, and all are entirely independent of the substantive matters at issue in that action. Resolution of these collateral disputes at this time will not disrupt the trial below, and might well facilitate its conclusion by freeing the court from the recurrence of what has obviously been a constant irritant. Similarly, we think it apparent that the district court's judgment on all matters before us has now been rendered in its final form. That court has reaffirmed its position with respect to both plaintiffs and The San Juan Star on numerous occasions without material modification, and has issued a decisive order following a climactic confrontation with intervenor Hernandez Agosta. Both orders are final and complete by their terms, and the...