864 F.2d 151 (D.C. Cir. 1988), 88-5115, In re Rafferty

Docket Nº:88-5115.
Citation:864 F.2d 151
Party Name:In re Scott J. RAFFERTY.
Case Date:December 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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864 F.2d 151 (D.C. Cir. 1988)

In re Scott J. RAFFERTY.

No. 88-5115.

United States Court of Appeals, District of Columbia Circuit.

December 7, 1988

Argued May 12, 1988.

Scott J. Rafferty, pro se.

Guy Miller Struve, with whom Scott W. Muller was on the brief, for respondents.

Before MIKVA and SILBERMAN, Circuit Judges, and PARKER, Senior District Judge, United States District Court for the District of Columbia.

MIKVA, Circuit Judge:

Petitioner challenges a district court ruling that placed under a protective order certain information in petitioner's possession that petitioner had obtained before litigation and discovery began. The district court order prevented petitioner from disclosing the information to third persons, including the Department of Justice. We find the district court's decision appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), and we vacate the order.


    On May 6, 1986, petitioner Scott J. Rafferty was hired by Telco Research Corporation, a wholly owned subsidiary of NYNEX Corporation. NYNEX is one of the Bell Operating Companies ("BOCs") created by the break-up of the American Telephone & Telegraph Company ("AT & T"). Mr. Rafferty was a senior vice president in charge of Telco's consulting division. The AT & T consent decree prevented BOCs from engaging in any business other than local phone service without first obtaining a waiver from Judge Harold H. Greene. See United States v. American Telephone & Telegraph Co., 552 F.Supp. 131, 226-34 (D.D.C.1982), aff'd, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). Since Mr. Rafferty was unsure whether NYNEX had the authority to operate a consulting business, he requested a legal opinion from NYNEX's attorneys; two weeks later, on November 10, 1986, NYNEX fired him. NYNEX asserts that it also terminated the consulting business at this time.

    The episode sparked an investigation of NYNEX by the Department of Justice, with which Mr. Rafferty cooperated. Mr.

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    Rafferty also filed an action against NYNEX alleging misrepresentation, breach of contract, unlawful discharge, and antitrust violations. The case was assigned to Judge Greene because Mr. Rafferty and his counsel designated the case as "related" to AT & T. The district court originally directed that discovery in the lawsuit terminate in November 1987, but that date was later extended at Mr. Rafferty's request until January 1, 1988.

    On January 29, 1988, NYNEX and Telco filed a motion for summary judgment seeking dismissal of the entire action. Mr. Rafferty's own opposition to this motion included an affidavit in which he asserted that he had received four floppy disks of information "hacked" from Telco's computers indicating that NYNEX possessed documents that were responsive to his discovery requests but that had not been produced. This, Mr. Rafferty maintained, was yet another reason to deny NYNEX's motion. The disks also allegedly contain information revealing violations by NYNEX of the antitrust consent decree. On March 1, NYNEX filed what it styled an "Emergency Motion for Hearing and Return of Property," seeking the return of the floppy disks and all information obtained from them. Six days later, the magistrate supervising discovery, Patrick J. Attridge, granted this motion, ordering Mr. Rafferty to turn over the disks to NYNEX. At this point Mr. Rafferty had not had a chance to respond to NYNEX's motion. The magistrate then scheduled a hearing on the matter. Meanwhile, Mr. Rafferty complied with the order.

    At the hearing, the parties disputed whether Mr. Rafferty had obtained the floppy disks legally. Mr. Rafferty maintained that the day after he was dismissed from Telco, he requested copies of his electronic mail messages from a Telco manager, who made the floppy disk copies for him. As it turned out, the information transferred to the four floppy disks included some messages that were not Mr. Rafferty's. NYNEX asserted that Mr. Rafferty had gained possession of the disks in an unauthorized fashion by persuading a Telco computer room employee named Hollis to make the copies for him. Both parties agreed, however, that Mr. Rafferty obtained the disks the day after his employment was terminated. Mr. Rafferty also disclosed during the course of the hearing that some of the material on the floppy disks was contained in the memory of his personal computer, which he had purchased from Telco at the time of his departure.

    The magistrate declined to resolve Mr. Rafferty's right to possess either the disks or the information within his personal computer. In an order dated March 11, 1988, however, the magistrate sought to resolve the use of the disks and memory information during the litigation. The order permitted NYNEX to retain the originals of the floppy disks but required the return of copies of the disks to Mr. Rafferty. The magistrate then placed, for the duration of the litigation, all information contained on the disks, and all information relating to NYNEX and Telco in the personal computer memory, under the protective order to which the parties had already agreed pursuant to Fed.R.Civ.P. 26(c). After Mr. Rafferty's case against NYNEX and Telco was completed, the magistrate ruled, Mr. Rafferty could apply to Judge Greene for a determination whether the disks and computer memory data could be released. This meant that in the interim Mr. Rafferty could use the information only in connection with the pending litigation; he could not disclose it to third parties such as the Department of Justice.

    In a memorandum opinion dated March 31, 1988, and filed April 5, 1988, Judge Greene affirmed the magistrate's order and denied Mr. Rafferty's motion for reconsideration. Judge Greene found:

    This Order was entered after a hearing at which plaintiff was present and allowed to state his position. Because the items under discussion related to discovery in this case, consideration of this issue was well within the Magistrate's delegated jurisdiction. This Court will not, without good cause, overturn a decision taken after proper evaluation of the parties' respective positions. No such

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    reason appears here. Therefore, [Mr. Rafferty's] motion will be denied.

    Memorandum opinion at 4. Judge Greene's March 31 ruling also denied a motion by Mr. Rafferty's counsel to withdraw and a related motion by Mr. Rafferty to appear pro se. Later, however, in a memorandum and order dated October 24, 1988 and filed October 25, 1988, Judge Greene granted the motion of counsel to withdraw and permitted the appearance of Mr. Rafferty pro se.

    Also on March 31, 1988, Mr. Rafferty filed a motion to enforce the AT & T antitrust decree, based on language in an order entered in United States v. Western Electric Co., 578 F.Supp. 677, 679 (D.D.C.1983), providing that "[a]n interested third party, whether or not it has heretofore been granted intervenor status * * * may apply to the Court for appropriate action" after serving a request for enforcement upon the Department of Justice. The motion was returned to Mr. Rafferty by the Clerk of the district court. On April 29, 1988, Judge Greene notified this court that Mr. Rafferty's...

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