846 F.2d 249 (4th Cir. 1988), 87-1617, Rushford v. New Yorker Magazine, Inc.

Docket Nº:87-1617.
Citation:846 F.2d 249
Party Name:Greg RUSHFORD, Plaintiff-Appellant, The Washington Post Company, Intervenor, v. The NEW YORKER MAGAZINE, INC., Defendant-Appellee, and William Shawn; Reneta Adler, Defendants.
Case Date:May 06, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 249

846 F.2d 249 (4th Cir. 1988)

Greg RUSHFORD, Plaintiff-Appellant,

The Washington Post Company, Intervenor,


The NEW YORKER MAGAZINE, INC., Defendant-Appellee,


William Shawn; Reneta Adler, Defendants.

No. 87-1617.

United States Court of Appeals, Fourth Circuit

May 6, 1988

Argued Feb. 2, 1988.

Page 250

Greg Rushford, Washington, D.C., for plaintiff-appellant.

David Evan Kendall, Washington, D.C., for intervenor.

Roslyn Ann Mazer, Washington, D.C. (Cyril V. Smith, Dickstein, Shapiro & Morin, Washington, D.C., on brief) for defendant-appellee.

Before HALL, PHILLIPS, and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

This is a case in which Greg Rushford, the plaintiff, appeals from an adverse grant of summary judgment with regard to his defamation claim brought against The New Yorker Magazine, Inc. (The New Yorker). The Washington Post Company (The Washington Post) has intervened, seeking to unseal the pleadings and documents accompanying the successful Motion for Summary Judgment submitted by The New Yorker to the district court.

Because the allegedly defamatory statements are protected under a qualified privilege, we affirm the grant of summary judgment against Rushford. During pretrial discovery, a Protective Order covering six documents was issued. When The New Yorker moved for summary judgment, the entire record accompanying the summary judgment motion was placed under seal. Only three documents in that record were

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covered by the Protective Order. 1 The New Yorker acknowledged in argument before this Court that it has no objection to unsealing the documents not covered by the Order. We therefore hereby unseal the summary judgment pleadings and accompanying exhibits except for the three documents specifically covered by the Order. With regard to those three documents, the case is remanded to the district court for the determination, which heretofore has never been judicially made, of whether the Protective Order should be enforced. 2


On October 29, 1986, Rushford brought a libel action against, inter alia, The New Yorker in the Circuit Court for Fairfax County, Virginia. The case was thence removed to the United States District Court for the Eastern District of Virginia, pursuant to 28 U.S.C. Sec. 1441.

The New Yorker had published a two-part article by Renata Adler, entitled "Annals of Law--Two Trials," in June, 1986. The article reported on two separate libel suits brought by General William C. Westmoreland and Israeli General Ariel Sharon, respectively. The article referred to Rushford's testimony as a witness for CBS in Westmoreland v. CBS, Inc., No. 82 Civ. 7913 (S.D.N.Y.) (PNL).

On December 23, 1986, Rushford served a document request on The New Yorker under Fed.R.Civ.P. 34. However, The New Yorker declined to produce several categories of documents without a protective order. Rushford thereafter moved to compel the production of the documents. The New Yorker opposed the motion and moved for a protective order pursuant to Fed.R.Civ.P. 26(c) that would allow limited disclosure of the documents to Rushford and his counsel, but would forbid any other disclosure of the pertinent documents prior to trial. On March 9, 1987, Magistrate Grimsley ruled that a protective order should be issued. On March 20, 1987, Magistrate Brinkema entered a Protective Order:

The documents are to be shown only to the respective parties, their counsel and those assisting counsel, and are to be used solely for this litigation. No copies of these documents are to be made without leave of court. When this litigation is completed, the documents are to be returned to the party supplying them.

The Order covered the following documents:

1. Proposed "Note to Readers" drafted by William Shawn (never published);

2. Transcript of deposition of William Shawn, dated February 18, 1987;

3. Galleys and page proofs of the paragraph referring to Rushford in "Annals of Law--Two Trials";

4. The New Yorker's written instructions or guidelines to fact checkers;

5. The New Yorker's internal telephone directories;

6. Rushford's tax returns.

Rushford filed a "Partial Objection" to the Magistrate's Protective Order, asserting, inter alia, that he had a First Amendment right to disseminate the pertinent documents. Following a hearing, Chief Judge Bryan sustained the Magistrate's ruling in an order issued on March 17, 1987.

On April 7, 1987, The New Yorker filed a Motion for Summary Judgment. It filed all its summary judgment papers under seal even though the Protective Order did not explicitly apply to pleadings. The New Yorker alleges that Judge Bryan had "instructed [The New Yorker] to place the motion and accompanying exhibits under seal." Following oral argument, Judge


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