989 F.2d 527 (1st Cir. 1993), 92-1115, Poliquin v. Garden Way, Inc.

Docket Nº:92-1115, 92-1116.
Citation:989 F.2d 527
Party Name:Richard and Anita POLIQUIN, Plaintiffs-Appellants, v. GARDEN WAY, INC., Defendant-Appellee.
Case Date:March 24, 1993
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 527

989 F.2d 527 (1st Cir. 1993)

Richard and Anita POLIQUIN, Plaintiffs-Appellants,


GARDEN WAY, INC., Defendant-Appellee.

Nos. 92-1115, 92-1116.

United States Court of Appeals, First Circuit

March 24, 1993

Heard July 29, 1992.

Rehearing Denied April 20, 1993.

Page 528

Maurice A. Libner with whom Marcia J. Cleveland and McTeague, Higbee, Libner, MacAdam, Case and Watson, Topsham, ME, were on brief, for plaintiffs-appellants.

Page 529

Cheryl Flax-Davidson, San Juan, PR, and Bob Gibbins, Austin, TX, were on brief, for amicus curiae The Ass'n of Trial Lawyers of America.

Mark L. Austrian with whom Collier, Shannon, Rill & Scott, Washington, DC, Roy E. Thompson, Jr., Glenn H. Robinson, and Thompson & Bowie, Portland, ME, were on brief, for defendant-appellee.

James D. Poliquin, Russell B. Pierce, Jr. and Norman, Hanson & DeTroy, Portland, ME, were on brief, for amicus curiae The Defense Research Institute, Inc.

Before TORRUELLA and BOUDIN, Circuit Judges, and KEETON, [*] District Judge.

BOUDIN, Circuit Judge.

Richard and Anita Poliquin, appellants in this court and plaintiffs below, challenge protective orders of the district court limiting access to certain discovery materials in this case. The plaintiffs' underlying product liability claim has been settled. The discovery dispute lives on, consuming the time and energy of the courts, largely as a contest between plaintiffs' counsel and the defendant-appellee, Garden Way, Inc. For reasons set forth below, we modify the orders under review in one important respect and otherwise affirm.


In October 1990, Richard Poliquin was seriously injured while operating the Super Tomahawk, a chipper/shredder manufactured by Garden Way. He and his wife brought suit against Garden Way in the district court, charging that the injury was due to the defective design of the product. The Poliquins sought discovery from Garden Way including design specifications, sales data and information about other accidents involving the Super Tomahawk or similar equipment.

In response, Garden Way sought a protective order limiting disclosure of answers and documents produced in response to specified discovery requests. The Poliquins resisted. Garden Way submitted an affidavit from its general counsel Lucia Miller in support of its request. On August 2, 1991, after a hearing on discovery issues, a protective order was entered by the magistrate judge to whom discovery matters had been assigned. The protective order said that Garden Way did have "valuable trade secrets and other confidential information" which were sought in discovery but should not be made public. The order afforded confidential treatment to information obtained through some, but not all, of the interrogatories specified by Garden Way, and to other information that had been the subject of the hearing.

The August 2 order also created a mechanism for resolving disputes about new discovery. It provided that if Garden Way produced other information or documents that it deemed confidential, it should mark them with a legend showing that they were "confidential" pursuant to court order in the case. If the Poliquins disagreed, they could contest the designation by motion within a fixed period, effectively 15 days from the production of the materials. The order provided that it "shall not terminate at the conclusion of this action" and within 90 days after the conclusion, all information and documents subject to the order "shall be destroyed" and a certificate of destruction provided by counsel.

The Poliquins appealed the August 2 order to the district judge who affirmed it as "not clearly erroneous." An appeal to this court was taken but dismissed as interlocutory. The interrogatory answers and documents provided by Garden Way under the protective order listed the names of other persons who had been injured by Garden Way equipment and included a number of complaints such persons had filed in other suits. The Poliquins later took depositions (under Fed.R.Civ.P. 31) of 23 other individuals who had suffered such accidents, as well as the videotaped deposition of Jay Sluiter, a former employee of Garden Way. The protective order provided that confidential information within a deposition

Page 530

transcript was to be designated by underlining the lines in question and stamping the pages "confidential." It is not clear that Garden Way did so in each instance.

A pretrial hearing occurred on October 24, 1991. The district judge ruled that the Poliquins were free to offer information and documents at trial even if they had been designated as confidential during discovery. During this colloquy, plaintiffs' counsel suggested that material offered in evidence would be freed from further restriction, so he could send such material to other plaintiffs who had similar cases. Defense counsel disagreed and concluded by saying that when trial is over "I will request that those exhibits be returned." The court replied: "Correct.... When the trial is over, whatever rights you have ... to control the further dissemination of the material, you can invoke."

Trial began on October 28, 1991. During trial, the court permitted the Poliquins' counsel to read to the jury a portion of Garden Way's interrogatory answers--relating to certain of the other accidents involving Garden Way equipment--but it did not allow the written interrogatory answers themselves to be offered as exhibits and excluded information about many of the other accidents altogether. None of the Rule 31 depositions of other injured persons was admitted or read to the jury, the court excluding them as prejudicial and of little value. A videotape of the Sluiter deposition was shown to the jury in its entirety.

During trial, the parties agreed to settle the case, and the jury was discharged. Thereafter, on November 13, 1991, defense counsel wrote to the Poliquins' counsel listing 214 items claimed to be covered by the protective order, and requesting that the listed material be returned or destroyed. Some of the 214 items had not previously been designated as confidential. Included in the list were portions of the trial record. It appears that the Poliquins' counsel did not immediately reply.

On November 18, 1991, plaintiffs executed a "release and indemnity agreement" and received a check. The agreement stated that "[r]eleasors and their attorney acknowledge that they are still bound by the terms of the [August 2] Protective Order" as to disclosure of protected materials. In a signed addendum, the Poliquins' counsel approved the agreement and "acknowledge[d] continuing applicability of the Protective Order and agree[d] to comply with the portions of this agreement which apply to him." The counsel "further agree[d]" that he would instruct any expert or consultant shown confidential material not to disseminate it and to return all documents or other written materials to defense counsel. On November 27, 1991, the district court formally dismissed the case.

Shortly before the dismissal, the Poliquins on November 25, 1991, filed a motion "for determination of confidentiality" asking the court to rule that a number of items listed in the November 13, 1991, letter were not subject to any confidentiality restriction. The Poliquins argued that their counsel had independently learned the names of seven injury victims before the interrogatories were answered; that any information admitted into evidence at trial, (e.g., the Sluiter deposition) should not be protected; that it would be wasteful of resources to protect the unadmitted Rule 31 depositions of victims; and that court complaints filed in other cases, although furnished by Garden Way in discovery and not admitted at trial, were public documents.

Garden Way opposed the motion and asked the court to seal pendente lite confidential material to the extent contained in the court's file. By endorsements, the district judge on December 10, 1991, granted Garden Way's request and denied the Poliquins' motion. Then, on January 17, 1992, the district court on further review of Garden Way's request directed that material subject to the August 2 protective order be removed from the court file by counsel for Garden Way and the court then sealed "all testimony and arguments made during the trial dealing with the matters which are subject to" the August 2 order, unless and until otherwise ordered by the court.

Page 531

The Poliquins appealed to this court both the December 10, 1991, order denying its motion and the January 17, 1992, order sealing in part the trial record. An amicus brief supporting them has been filed by the Association of Trial Lawyers of America and another in opposition by the Defense Research Institute, Inc. There is no hint that the Poliquins themselves have any practical interest in the outcome of the appeal, but as they are formally subject to protective orders entered in their case, we see no lack of standing to seek appellate review.


At the outset, we face arguments on both sides that important issues have been waived or relinquished. To raise an issue on appeal, a litigant must generally show the issue was raised in the trial court by a proper request or objection and that the right ground for the request or objection was given at the time. See generally Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (collecting waiver cases). Even then, a mistake in the ruling will be disregarded unless prejudice resulted from the error. E.g., Fed.R.Evid. 103(a). Finally, nothing prevents a party from consenting by stipulation or contract not to pursue a specific issue on appellate review.

The reason for the rules is not that litigation is a game, like golf, with arbitrary rules to test the skill of the players. Rather, litigation is a "winnowing process," Howell v. Federal Deposit Ins. Corp., 986 F.2d 569, 575...

To continue reading