Adams v. Metallica, Inc.

• Decision Date: 01 June 2001
• Docket Number: No. C-000513.,C-000513.
• Citation: 758 NE 2d 286
• Parties: ADAMS, Intervenor-Appellant, v. METALLICA, INC. et al., Appellees.
• Court: Ohio Court of Appeals

758 NE 2d 286

ADAMS, Intervenor-Appellant, v. METALLICA, INC. et al., Appellees.^*

No. C-000513.

Court of Appeals of Ohio, First District, Hamilton County.

Decided June 1, 2001.

[758 NE 2d 485]

Frost, Brown, Todd, L.L.P., and Scott D. Phillips, for intervenor-appellant.

Freund, Freeze & Arnold LPA and Mark A. MacDonald, for defendants-appellees, Metallica, Inc., Metallica, and its band members, individually.

[758 NE 2d 483]

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[758 NE 2d 484]

GORMAN, Presiding Judge.

Randy R. Adams brings this appeal from the trial court's order denying his motion to intervene in a case that had previously been settled and voluntarily dismissed under Civ.R. 41(A). The motion to intervene was part of Adams's effort to modify a protective order that had sealed video recordings and transcripts of depositions filed in the dismissed case. In his sole assignment of error, Adams challenges the trial court's decision denying him the right to intervene, as well as the court's original decision to grant a protective order sealing the materials. For the reasons that follow, we affirm.

I

The main action involved a plaintiff named Keith Phillips and the heavy-metal band Metallica. Phillips had sustained serious injuries while at a Metallica concert at the Riverbend Music Center in Hamilton County, Ohio. According to witnesses, Phillips, whose nickname was "Crazy Indian," had repeatedly volunteered to be "launched" into the air above the heads of fans that had congregated for that purpose in the lawn area. The group of approximately thirty fans was expected to catch the person launched once that person assumed a horizontal position above their heads.

According to friends, Phillips, who was already intoxicated, started to act more erratically after drinking from a mysterious "blue bottle" being passed around the crowd. After several successful launches, Phillips decided to attempt another launch, this time imitating another participant he had seen perform a mid-air somersault. Once airborne, Phillips tucked his body and went into an uncontrolled spin above the group. Unfortunately, Phillips did not come out of the spin in time. Instead of catching him, the other participants, fearing for their safety, parted and allowed Phillips, still spinning, to fall headfirst on the ground. The damage to Phillips's spine rendered him a paraplegic.

Adams sustained his injury from what he argues was the same sort of "moshing" activities at a concert venue in Indiana. Although Metallica was the concert's headliner, Adams's injury occurred during the performance of Suicidal

[758 NE 2d 486]

Tendencies, an opening act. Unlike Phillips, Adams did not engage in "launching." Rather, he alleged that his injury had occurred as a result of "chest trauma" inflicted by fans slamming against his body in an overly aggressive "mosh pit" that he had voluntarily joined. After being seen by friends "moshing," Adams later collapsed and was taken to a hospital, where he arrived comatose. A physician who performed a neurological consultation at the hospital stated that a "crush injury of the chest" was probable. The primary diagnostic impression was "hypoxic encephalotopthy, severe," with seizures. But a cardiologist who later examined Adams on behalf of Metallica attributed Adams's cardiac arrest to a congenital heart condition called "QT Long Syndrome," which can be triggered by loud music.

II

Although the order appealed from in this case resulted from a motion to intervene, Adams's argument on appeal focuses almost exclusively on the validity of the protective order in the underlying action. The gist of Adams's argument is that the protective order reflected an agreement among the parties, but was never fully considered by the trial court, thus rendering it void. Such a strategy, however, cannot obscure the fact that the order appealed from is that of a nonparty seeking to intervene in the case for the purpose of challenging the order. The focus here, therefore, is not on the original decision sealing the materials but on the subsequent decision not to allow Adams the right to pursue their unsealing.

1. Pretrial Discovery, Protective Orders, and The Public. Right of Access

Civ.R. 26(B) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Subsection (C), however, expressly permits the trial court "for good cause shown" to "make any order that justice requires to protect a party * * * from annoyance, embarrassment, oppression, or undue burden or expense." The Ohio Supreme Court has held that protective orders under this subsection are an exercise of the trial court's discretion. Ruwe v. Springfield Twp. Bd. of Trustees (1987), 29 Ohio St.3d 59, 61, 29 OBR 441, 443, 505 N.E.2d 957, 959; State ex rel. Gross v. Marshall (1974), 39 Ohio St.2d 92, 94, 68 O.O.2d 54, 55-56, 314 N.E.2d 170, 172.

One of the protective measures expressly provided for in the rule is that a deposition be sealed and "opened only by order of the court." Id. Obviously a deposition under seal, and yet filed with the court, is no longer open to public scrutiny. Conversely, the "open courts" provision of Section 16, Article I of the Ohio Constitution provides that "all courts shall be open * * *." This language

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has been interpreted, however, to create only "a qualified right of public access to proceedings which have historically been open to the public and which public access plays a significantly positive role." State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div. (1995), 73 Ohio St.3d 19, 20, 652 N.E.2d 179, 181.

Discovery has historically never been open to the public. Indeed, noting that discovery proceedings were not open to the public at common law, the United States Supreme Court has held that "pretrial depositions are not public components of a civil trial." Seattle Times Co. v. Rhinehart (1984), 467 U.S. 20, 33, 104 S.Ct. 2199, 2207, 81 L.Ed.2d 17, 27. As the court explained in a footnote:

"Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private. Rules of Civil Procedure may require parties to file with the clerk of the court interrogatory answers, responses to requests for admissions, and deposition transcripts. See Fed.Rule Civ.Proc. 5(d). Jurisdictions that require filing of discovery materials customarily provide that trial courts may order that the materials not be filed or that they be filed under seal. See ibid.; Wash.Super.Ct.Civ. Rule 26(c). Federal district courts may adopt local rules providing that the fruits of discovery are not to be filed except on order of the court. See, e.g., C.D.Cal.Rule 8.3; S.D.N.Y.Civ.Rule 19. Thus, to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court." Id. at fn. 19.

In addition to the "open courts" provision of the Ohio Constitution, Ohio has its own Public Records Act, R.C. 149.43. Under the Act, all public records are required to be made available for public inspection. With certain exceptions, a public record is "any record that is kept by any public office * * *." The purpose of the Act "is to expose government activity to public scrutiny * * *." White v. Clinton Cty. Bd. of Commrs. (1996), 76 Ohio St.3d 416, 420, 667 N.E.2d 1223, 1226-1227.

In State ex rel. Mothers Against Drunk Drivers v. Gosser (1985), 20 Ohio St.3d 30, 20 OBR 279, 485 N.E.2d 706, the Ohio Supreme Court discussed whether court documents were public records. The court held the following in the first paragraph of its syllabus:

"Any document appertaining to, or recording of, the proceedings of a court, or any record necessary to the execution of the responsibilities of a governmental unit is a `public record' and `required to be kept' within the meaning of R.C. 149.43. Absent any specific statutory exclusion, such record must be made available for public inspection."

[758 NE 2d 488]

Among the statutory exceptions to R.C. 149.43, there is none that specifically excludes discovery materials. But, in State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 673 N.E.2d 1360, the Ohio Supreme Court, citing Seattle Times, held that discovery exchanged by the prosecutor with the defendant under Crim.R. 16 was not subject to release as a "public record." In so holding, the court did not make any reference to its earlier decision in MADD, but chose, rather, to quote the United States Court of Appeals for the Eleventh Circuit in United States v. Anderson (C.A.11, 1986), 799 F.2d 1438. A portion of that quote appears below:

"Discovery is neither a public process nor typically a matter of public record. Historically, discovery materials were not available to the public or press. See Seattle Times Co. v. Rhinehart * * *. Moreover, documents collected during discovery are not `judicial records.' Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private. Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1, 15 (1983).

"If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe. Not only would voluntary discovery be chilled, but whatever discovery and court encouragement that would take place would be oral, which is undesirable to the extent that it creates misunderstanding and surprise for the litigants and the trial judge. Litigants should not be discouraged from putting their discovery...