Reporters Committee for Freedom of the Press, In re

• Citation: 773 F.2d 1325
• Decision Date: 20 September 1985
• Docket Number: Nos. 82-1820,82-1821 and 83-1744,s. 82-1820
• Parties: , 54 USLW 2169, 12 Media L. Rep. 1073 In re the REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1325

773 F.2d 1325

249 U.S.App.D.C. 119, 54 USLW 2169,

12 Media L. Rep. 1073

In re the REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et al.

Nos. 82-1820, 82-1821 and 83-1744.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 10, 1984.

Decided Sept. 20, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action Nos. 80-3032 & 80-2387).

Anthony C. Epstein, Washington, D.C., with whom Bruce G. Joseph, Jack C. Landau and Judy D. Lynch, Washington, D.C., were on brief, for appellants.

Loren Kieve, Washington, D.C., with whom George A. Birrell, New York City, and Judah Best, Washington, D.C., were on brief, for appellee Mobil Corp.

Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA.

Opinion concurring in part and dissenting in part filed by Circuit Judge J. SKELLY WRIGHT.

SCALIA, Circuit Judge.

The Reporters Committee for Freedom of the Press and four individual reporters appeal from two District Court orders delaying until after trial and entry of judgment the public's access to court records consisting of documents produced by, and depositions furnished by the officers of Mobil Oil Corp. in the course of third-party discovery in a civil suit, and used in connection with summary judgment and trial proceedings. The case presents preliminary issues of mootness and finality, and the merits issue of whether there is a First Amendment right of public access to court records pertaining to private civil actions prior to judgment.

I

The matters contested here arose in the course of litigation to which neither appellants nor appellee was a party--a libel suit brought by William Tavoulareas, the President of Mobil Oil Corp., and his son Peter, against the Washington Post Co. and a number of individuals connected with the Post, and a slander suit by the same plaintiffs against Philip Piro. In the course of those suits, which were consolidated, the Post sought to discover large numbers of documents from Mobil, and to take the depositions of Mobil-related witnesses. Before conducting a document search, Mobil requested a protective order to prevent public dissemination of the information to be obtained, on the ground that much of it was sensitive and confidential. It supported this request with an affidavit from Mobil Vice-President Walter E. MacDonald describing in general terms the negative effect release of the materials as a whole would have on Mobil's business in Saudi Arabia and its competitive position in shipping. The affidavit also stated that it would be impractical for Mobil to go through documents one by one during the discovery process to determine whether they contained any confidential information.

The District Court entered a protective order on November 5, 1981. It held that the MacDonald affidavit adequately identified the harm which disclosure of the information would cause Mobil, and that it would be undesirable to have Mobil specify, and the court rule on, objections to disclosure of particular documents, since that would slow discovery enormously and involve the court excessively in the discovery process. Instead, it adopted the following procedure:

Mobil would simply note the confidentiality of certain documents produced, based upon a relatively cursory review of the contents or source of the documents, and would then turn them over to The Post for use in this litigation. In the event The Post then wished to challenge Mobil's designation, W[ashington] P[ost] C[o.] counsel could seek an accommodation with Mobil or, as a last alternative, a court ruling that the material is neither confidential nor otherwise privileged.

Tavoulareas v. Piro, 93 F.R.D. 24, 29 (D.D.C.1981) (footnotes omitted). If the Post did make such a challenge, "Mobil ... would then bear the burden of establishing 'good cause' for the document's continued protection." Id. at 29-30 n. 3. The court also subjected to the protective order depositions in which information or documents designated confidential might be disclosed. Id. at 34.

On December 16, 1981, Mobil was granted leave to intervene to protect its interest in confidentiality. Discovery proceeded, in the course of which Mobil designated approximately 3,800 pages of deposition and an unspecified number of documents as confidential. Plaintiffs and defendants made cross-motions for summary judgment, in connection with which they filed under seal substantial portions of the materials designated confidential. The District Court denied those motions on June 30, 1982, a week before the trial was to begin. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387 (D.D.C. June 30, 1982) (Order).

On July 2, 1982, Mobil moved to extend the November 5 protective order to the trial itself. In an order filed on July 8, without requiring any supporting materials in addition to those Mobil had furnished to obtain the original protective order, the District Court granted Mobil's request. It ruled that documents or depositions that Mobil continued to classify as confidential

will continue to be subject to the terms of the protective orders previously entered by the Court, but may be used by the parties for any proper trial purpose. They may be used to question or impeach witnesses and may be read or otherwise introduced into evidence. The document itself, however, will continue to remain subject to the protective orders of this Court.

Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 2 (D.D.C. July 8, 1982) (Memorandum-Order). As we understand this order, those portions of each protected document or deposition used to question or impeach witnesses or otherwise read into evidence were made available to the public as part of the transcript, but the rest, although part of the exhibit sent to the jury, was not. On the basis of this order, Mobil designated 52 trial exhibits as confidential.

During this entire period, the Post had not exercised its right to challenge Mobil's confidentiality designations. ¹ On July 12, 1982, however, appellants here, four individual newspaper reporters and The Reporters Committee for Freedom of the Press, an unincorporated association ("the reporters"), filed a motion to intervene to ask the District Court to reconsider its November 5 and July 8 orders. On July 20, 1982, the District Court granted the motion to intervene but denied the motion to reconsider the orders because continued sealing was "essential to the efficient and expeditious conduct of the trial," Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 4 (D.D.C. July 20, 1982) (Order). It did, however, agree to review the need for continuation of its protective order after the close of trial, and stated that it would require Mobil to identify the documents it considered confidential and explain the basis of its secrecy claim within thirty days after the end of trial. Id.

The reporters sought review of that order in separate appeals (consolidated here) pertaining to the two consolidated cases below. In accompanying motions for expedited appeal and mandamus, they urged us to take emergency action on the ground that, as to any documents used at trial or which were part of the summary judgment record, ² maintenance of the protective order during trial without a prior hearing on the need for that order as to each individual document denied their First Amendment right of immediate access to judicial records. We denied both motions. Tavoulareas v. Piro, Nos. 82-1820 & 82-1821 (D.C.Cir. July 30, 1982) (Order); In re The Reporters Committee for Freedom of the Press, Nos. 82-1819, 82-1820 & 82-1821 (D.C.Cir. July 26, 1982) (Order). The appeals were subsequently stayed with the agreement of the parties, pending the District Court's post-trial reexamination of the need for continued sealing of the documents.

The jury trial ended July 30, 1982, with a verdict for William Tavoulareas against the Washington Post defendants, for the Washington Post defendants against Peter Tavoulareas, and for William and Peter Tavoulareas against Philip Piro. As the District Court had directed, thirty days later, on August 30, Mobil filed a memorandum identifying those documents whose confidentiality it still wished preserved and explaining the basis for its request. These included only 18 of the 52 trial exhibits originally designated as confidential and an unidentified number of documents that were part of the summary judgment record.

On May 2, 1983, the District Court granted judgment non obstante veredicto ("judgment n.o.v.") for the Washington Post defendants. Tavoulareas v. Washington Post Co., 567 F.Supp. 651 (D.D.C.1983). On May 18, 1983, the court released 14 of the 18 trial exhibits, because they either had never been subject to the protective order or were already publicly available. Tavoulareas v. Washington Post Co., Civil Nos. 80-3032 & 80-2387, slip op. at 2 (D.D.C. May 18, 1983) (Order). As to the remaining four trial exhibits and those materials that were part of the summary judgment record, the court was not satisfied with Mobil's showing, but gave Mobil additional opportunity to make a more specific demonstration of need. Id. In response, Mobil waived its claim as to all but one trial exhibit, and as to all but two summary judgment documents. On May 20, 1983, the court completed its rulings on post-trial motions going to the merits of the consolidated cases by granting a judgment n.o.v. to Piro. Tavoulareas v. Piro, Civil Nos. 80-2387 & 80-3032 (D.D.C. May 20, 1983) (Memorandum-Order). On June 21, it ruled on the last three documents for which Mobil continued to advance a claim of confidentiality. The trial exhibit proved to be among those the District Court had already ordered unsealed because it had never been subject to the protective order. The court examined the two summary judgment...