858 F.2d 775 (1st Cir. 1988), 88-1195, Public Citizen v. Liggett Group, Inc.

Docket Nº:88-1195.
Citation:858 F.2d 775
Party Name:PUBLIC CITIZEN, et al., Plaintiffs, Appellees, v. LIGGETT GROUP, INC., et al., Defendants, Appellants.
Case Date:September 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 775

858 F.2d 775 (1st Cir. 1988)

PUBLIC CITIZEN, et al., Plaintiffs, Appellees,


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

No. 88-1195.

United States Court of Appeals, First Circuit

September 28, 1988

Heard June 10, 1988.

Page 776

Samuel Adams with whom Joseph J. Leghorn, Warner & Stackpole, Boston, Mass., Donald J. Cohn, Webster & Sheffield, John J. O'Connell and Seth M. Lahn, New York City, were on brief, for defendants, appellants.

Richard P. Campbell, John A.K. Grunert, Timothy Wilton, Campbell & Associates, P.C., Boston, Mass., William H. Crabtree and Edward P. Good, Detroit, Mich., on brief for Product Liability Advisory Council, Inc. and Motor Vehicle Mfrs. Ass'n of the U.S., Inc., amici curiae.

Cornish F. Hitchcock, with whom, Alan B. Morrison, Washington, D.C., Public Citizen Litigation Group, Carolyn Grace and Shapiro, Grace & Haber, Boston, Mass., were on brief, for plaintiffs, appellees.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, [*] Senior District Judge.

BOWNES, Circuit Judge.

Liggett Group, Inc., and Liggett & Meyers Tobacco Co. (collectively "Liggett") appeal an order of the district court modifying an earlier protective order covering discovery materials produced by Liggett. Request for the modification came from a group of public health organizations represented by Public Citizen Litigation Group ("Public Citizen"). 1 Liggett contends that Public Citizen lacked standing to request modification, both because it failed to obtain status as an intervening party under Rule 24 of the Federal Rules of Civil Procedure and because it had no substantive right of access to the materials in question, and that it failed to establish adequate circumstances justifying the modification. We affirm in part but modify the district court's order.


  1. Initial Proceedings

    On August 26, 1980, Joseph C. Palmer died of lung cancer after having smoked cigarettes made by Liggett for a number of years. Three years later, Palmer's wife and mother filed a diversity action against Liggett in United States District Court for the District of Massachusetts. The Palmers asserted various state law claims against Liggett based on Liggett's allegedly inadequate warnings about the health risks of smoking.

    Discovery began in 1984 and, during the course of discovery, three protective orders were entered by the district court. The first two orders, dated January 17, 1984, and January 25, 1985, pertained to the confidentiality of the plaintiffs' medical records. They are not at issue here. It is the third protective order, providing broad protection for documents produced by Liggett, which is the center of the current controversy.

    This protective order grew out of plaintiffs' January 22, 1985 deposition subpoena directed to the custodian of documents at Arthur D. Little, Inc. ("Little"). Little is a private consulting firm that performed research work for Liggett in the early 1950's. Pursuant to the subpoena and by agreement of the parties, plaintiffs' counsel were permitted to inspect eighteen boxes of documents

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    at Little's offices on January 30-31, 1985. Counsel began copying documents on February 1, 1985. On February 5, Liggett moved for a protective order under Rule 26(c) barring any nonlitigatory use of the Little documents and of all future discovery in the action. In support of its request, Liggett asserted that plaintiffs' discovery requests encompassed massive numbers of documents and that it would be "physically impossible for [Liggett] to designate individually each document containing confidential or secret information."

    The plaintiffs opposed the protective order on the ground, among others, that Liggett had waived its claims to confidentiality by previously allowing counsel to review and copy the Little documents. The district court granted Liggett's motion and signed the protective order on February 25, 1985.

    The order as approved had two components. The first is a blanket provision mandating that "[a]ll information produced or exchanged in the course of this civil action or any appeal arising therefrom ... shall be used solely for purposes of this case." The second provides heightened protection for any materials explicitly designated by a party as "confidential." With regard to both categories of materials, the protective order provides that "[w]ithin forty-five days after the final adjudication or settlement of all claims in this case, counsel for the parties either shall return all documents produced, if so requested by the producing party, or shall destroy all such documents. All copies of all documents, and all information and notes derived from them, also shall be destroyed."

    Subject to the restrictions of the protective order, plaintiffs' counsel copied approximately 1200 documents (one box full) from the eighteen boxes of Little documents to which the plaintiffs had access. None of these documents were ever designated by Liggett as confidential. The documents have remained in the possession of plaintiffs' counsel since that time.

    On June 7, 1985, the Wall Street Journal wrote a letter to the district court expressing interest in seeing the Little documents and seeking advice on how best to proceed in obtaining a modification of the protective order. One week later, plaintiffs' counsel filed a "Notice of Intent to Disseminate [the Little] Documents" to the Wall Street Journal. In support of their proposed action, plaintiffs cited Liggett's failure to designate any documents as confidential and to articulate any reason why release of the documents would harm Liggett. Plaintiffs also pointed out that many of the documents had been marked as exhibits for trial and thus would be made public eventually anyway. Liggett opposed the plaintiffs' proposed action, arguing that the protective order was still in full force, and, on June 28, 1985, filed its own "Motion to Require Compliance With Protective Order."

    In response, plaintiffs filed a motion for clarification or modification of the February 25 protective order. Plaintiffs argued that the order should be read as applying only to documents designated as confidential, because otherwise it would extend protection to information whether or not it qualified as confidential under the federal rules. At this point, the Wall Street Journal also sought leave to intervene in the action and filed its own request for clarification or modification. On July 16, 1985, the district court refused to modify the protective order and allowed Liggett's motion to compel compliance. It noted: "The dissemination of this material will not aid in the fair trial of this case. The trial is public and the Wall Street Journal is, of course, able to attend the trial." Plaintiffs' and the Wall Street Journal 's motions were denied.

    One week later, the Wall Street Journal moved for reconsideration of the district court order. The Journal 's motion was based primarily on the decision in Cipollone v. Liggett Group, Inc., 106 F.R.D. 573 (D.N.J. 1985), handed down the day after the order to compel compliance was issued in this case. Like the Palmers' case, Cipollone involved state law claims that inadequate warnings by Liggett had caused the death of a Liggett cigarette smoker. In the cited decision in Cipollone, Judge Sarokin

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    had substantially modified a protective order, previously approved by a magistrate, which was "identical" to the February 25, 1985 protective order in this case. Id. at 579. Judge Sarokin found that the provision extending blanket protection to documents not designated as confidential "overstep[ped] the bounds permitted by Rule 26(c)" and he accordingly modified the order to extend only to confidential information. Id. at 584. Although acknowledging that its analysis diverged from Judge Sarokin's, the district court in this case denied the motion to reconsider. It noted: "Motion denied, without prejudice to renew. The Sarokin opinion is now under appeal. This motion should be renewed following a ruling by the Third Circuit Court of Appeals." 2

    In April of 1986, Liggett moved to dismiss certain of plaintiffs' claims on the ground that they were preempted under the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331 et seq. The district court denied the motion but certified the question pursuant to 28 U.S.C. Sec. 1292(b), to this court, which reversed. Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987). We held that in passing the Act, Congress had struck a "carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of the national economy" and that permitting the interposition of state actions into the area would excessively disrupt the congressional scheme. Id. at 626 (quoting Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987)). The Palmers' state law claims were thus preempted.

    In light of our opinion, Liggett moved in the district court to have the Palmers' complaint dismissed and judgment entered for Liggett. Over the plaintiffs' objections, the district court granted the motion and entered judgment for Liggett on October 6, 1987. No appeal was taken.

  2. Public Citizen's Motion for Access to Discovery Materials

    On December 28, 1987, Public Citizen filed two motions in district court. In its first motion, Public Citizen sought interlocutory relief: an order mandating that the parties maintain and not destroy or return discovery materials in the Palmer case pending resolution of its second motion. This first motion was allowed by the district court the same day. The second motion sought a modification of the February 25, 1985 protective...

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