805 F.2d 1 (1st Cir. 1986), 86-1221, Anderson v. Cryovac, Inc.

Docket Nº:86-1221.
Citation:805 F.2d 1
Party Name:Anne ANDERSON, et al., Plaintiffs, Appellees, v. CRYOVAC, INC., et al., Defendants, Appellees. Globe Newspaper Company, Intervenor, Appellant.
Case Date:November 05, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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805 F.2d 1 (1st Cir. 1986)

Anne ANDERSON, et al., Plaintiffs, Appellees,


CRYOVAC, INC., et al., Defendants, Appellees.

Globe Newspaper Company, Intervenor, Appellant.

No. 86-1221.

United States Court of Appeals, First Circuit

November 5, 1986

Argued Sept. 3, 1986.

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E. Susan Garsh, with whom Jonathan M. Albano, Kathleen M. Guilfoyle and Bingham, Dana & Gould, Boston, Mass., were on brief, for intervenor, appellant.

James O'Connell, Sally, O'Connell & Fitch, Boston, Mass., Jane E. Kirtley and Robert S. Becker, Washington, D.C., on brief, for The Reporters Committee for Freedom of the Press, amicus curiae.

Henry Paul Monaghan, with whom William J. Cheeseman, James K. Brown, Sandra L. Lynch and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendant, appellee Cryovac, Inc.

Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, [*] District Judge.

BOWNES, Circuit Judge.

This is an appeal by the Globe Newspaper Company (the Globe), intervenor in a civil law suit brought by certain residents of Woburn, Massachusetts, against Cryovac, Inc., and the John J. Riley Co. The suit alleged that the defendants contaminated Woburn's water supply resulting in serious injury and death to certain individuals. This appeal is not concerned with the

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merits of the tort action; it is directed to orders the district court made prior to the start of trial denying the Globe access to discovery materials. The district court issued two protective orders that prohibited the parties from divulging information obtained through discovery except to public health and environmental officials, the parties' experts, and, with certain limitations, to the producers of a television program. The Globe also challenges the district court's refusal to grant it access to documents submitted to the court by the plaintiffs in connection with motions to compel the production of documents and to quash a deposition subpoena.

There are five issues: (1) whether the protective orders are appealable; (2) whether the first amendment is implicated when a protective order is issued in civil litigation; (3) whether a court may selectively allow access to discovery materials; (4) whether the district court had expeditiously ruled on the motions to modify and vacate the protective orders; and (5) whether there is a public right of access to documents submitted to a court for its use in deciding civil discovery motions.


On May 14, 1982, a number of Woburn, Massachusetts, residents commenced a civil action alleging that Cryovac, Inc., a division of W.R. Grace & Co., the John J. Riley Co., a division of Beatrice Foods, and other unidentified companies had contaminated Woburn's drinking water by discharging toxic chemicals into the ground. The plaintiffs sought damages for personal injury and wrongful death and also asked the court to require the companies to clean up the contaminated ground water and to enjoin future unauthorized discharges of toxic substances.

The plaintiffs attributed a high incidence of cancer, as well as several cases of childhood leukemia, liver disease, and other illnesses in the Woburn area to the city's drinking water, which they claimed the defendants contaminated with hazardous chemicals. These allegations elicited much public attention, and the interrogatories and depositions obtained during extensive discovery proceedings became attractive sources of information for the news media.

On September 4, 1985, after more than three years of discovery, the district court, concerned that the publicity surrounding the trial would make it difficult to obtain an impartial jury and conduct a fair trial, issued a protective order. The order prohibited the parties, their counsel, consultants, and experts from making public statements about the suit. The order also forbade the parties from divulging any information based on documents, testimony, or other matters obtained through discovery or by agreement except to "duly constituted environmental or health authorities of the federal, state, county or local Woburn governments."

On September 26, 1985, the WGBH Education Fund and the Chedd-Angier Production Co. (WGBH) were allowed to intervene in the action. WGBH wanted access to the protected information for production of a documentary for the Public Broadcasting Service's "NOVA" television series. The district court vacated the September 4 protective order and issued a new protective order on October 8, 1985. The October 8 order did not forbid public statements about the suit, but it did continue the prohibition on divulging information obtained through discovery. It contained an exception for the parties' experts, who, "in the course of academic courses and symposia and in articles in learned journals, but excluding press releases and interviews to be published by media of general distribution," were allowed to reveal the protected information if such disclosure was unrelated to the case. On October 16, 1985, the court made another exception to the protective order when it granted WGBH's request for access to discovery materials and permitted them to conduct interviews with the parties' attorneys, consultants, and experts. WGBH was prohibited from revealing the information it obtained from these sources until after jury selection. The program did not appear until after the

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jury had been selected; the jury was advised of the program and instructed not to watch it.

The Globe intervened "in the public interest" on December 12 asking access to discovery materials. One day later CBS, Inc., (CBS) intervened to obtain information for a segment of its "60 Minutes" television program. The Globe and CBS were allowed to intervene, but the court refused to grant them access to the protected information. 1 The court did make available to them papers it had considered in deciding summary judgment motions.

On January 14, 1986, the Globe made a specific request for access to papers tendered to the court by the plaintiffs' counsel in connection with motions to compel the production of documents and to quash the deposition subpoena of W.R. Grace & Co.'s chairman of the board. The papers were submitted under seal pursuant to a confidentiality stipulation that the parties had entered into on December 31, 1985. By the terms of the agreement any party could designate as confidential discovery information that it believed to be proprietary. Such information would then be sealed and only revealed to the parties, their attorneys, and the expert witnesses for use in preparing for the trial. The record does not indicate whether the court approved the stipulation. The Globe was refused access and the matter was referred to the magistrate charged with oversight of the stipulation for a determination as to whether the documents were covered by the agreement. The record does not disclose whether this was done. At the January 14 hearing, the Globe also requested an expedited determination of motions made on December 12 and 13 to modify and vacate the October 8 protective order. This request was again made in a motion on January 21. On January 21 the court denied all motions to modify or vacate the protective order. The October 8 order remained in effect until February 25, 1986, by which time the jury had been selected. One portion of the trial was completed with a jury verdict on liability. The case has now been settled.


We first consider whether the Globe's appeal became moot when the protective order was vacated or when the case was settled. Federal jurisdiction is limited to actual cases and controversies; if there is no live case or controversy the appeal usually is moot. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976). The protective orders arguably are not live controversies for two reasons. First, they were vacated when the jury had been selected; the Globe has had access to the sought-after discovery materials since that time. Second, the underlying tort action has been settled. The Supreme Court has held, however, that an issue is not moot if it is "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see also Press-Enterprise Co. v. Superior Court, --- U.S. ----, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Gannett Co. v. DePasquale, 443 U.S. 368, 377-78, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979); Nebraska Press Assn. v. Stuart, 427 U.S. at 546-47, 96 S.Ct. at 2796-97; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). This exception applies if: (1) "there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again"; and (2) "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 348.

There is little doubt that "the same complaining party [will] be subjected to the same action again." Id. The Globe probably will face similar protective orders in its

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future news-gathering efforts. The issues raised on appeal about the use of such orders to deny access to discovery materials are unsettled and important; indeed, they implicate the first amendment to the Constitution. Thus, the issues are "capable of repetition." See Gannett Co. v. DePasquale, 443 U.S. at 377-78, 99 S.Ct. at 2904; In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1329 (D.C.Cir.1985).

A protective order issued to prevent...

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