Agent Orange Product Liability Litigation, In re

• Decision Date: 10 June 1987
• Docket Number: 1091,1096,1080,1094,1092,1126 and 1257,1082,1093,1086,1125,Nos. 1076,s. 1076
• Citation: 821 F.2d 139
• Parties: , 7 Fed.R.Serv.3d 1091 In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION. Dockets 85-6061, 85-6143, 85-6145, 85-6151, 85-6167, 85-6287, 85-6289, 85-6293, 85-6295, 85-6375, 85-6377 and 86-6057.
• Court: U.S. Court of Appeals — Second Circuit

Page 139

821 F.2d 139

56 USLW 2028, 7 Fed.R.Serv.3d 1091

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION.

Nos. 1076, 1080, 1082, 1086, 1091, 1092, 1093, 1094, 1096,

1125, 1126 and 1257. Dockets 85-6061, 85-6143,

85-6145, 85-6151, 85-6167, 85-6287,

85-6289, 85-6293, 85-6295,

85-6375, 85-6377 and

86-6057.

United States Court of Appeals Second Circuit.

Argued April 10, 1986.

Decided June 10, 1987.

Leonard L. Rivkin, Garden City, N.Y. (Leslie R. Bennett, Barbara Petraglia Aloe, Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., Cadwalader, Wickersham & Taft, Kelley Drye & Warren, Townley &amp Updike, New York City, Clark, Gagliardi & Miller, White Plains, N.Y., Budd, Larner, Kent, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, N.J., Shea & Gould, New York City, of counsel) for defendants-appellants Dow Chemical Co., Diamond Shamrock Chemicals Co., Hercules Inc., Monsanto Co., T H Agriculture & Nutrition Co., Thompson Chemicals Corp. and Uniroyal, Inc.

Cornish F. Hitchcock, Washington, D.C. (Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., John Catterson, Mark A. Harmon, Peter Sills, Bondy & Schloss, New York City, Barton F. Stichman, Vietnam Veterans of America Legal Services, Washington, D.C., of counsel) for intervenor-appellee Vietnam Veterans of America.

Robert Taylor, Portland, Me. (Harold L. Lichten, Barry A. Margolin, Jennifer Wriggins, Tureen & Margolin, Portland, Me., of counsel) for plaintiff-appellee Robert Grenier.

Ralph G. Elliot, Hartford, Conn., Jane E. Kirtley, Robert S. Becker, Reporters Committee for Freedom of the Press, Washington, D.C., Richard N. Winfield, Rogers & Wells, New York City, Henry L. Baumann, Steven A. Bookshester, David Barr, Barr & Teer, Washington, D.C., Katharine P. Darrow, Kenneth A. Richieri, New York City, J. Laurent Scharff, Pierson, Ball & Dowd, Bruce W. Sanford, Baker & Hostetler, Washington, D.C., of counsel, for amici curiae Reporters Committee for Freedom of the Press, Associated Press, Associated Press Managing Editors, National Ass'n of Broadcasters, Newspaper Guild, New York Times Co., Radio-Television News Directors Ass'n and Society of Professional Journalists, Sigma Delta Chi, in support of appellee Vietnam Veterans of America.

Before VAN GRAAFEILAND, KEARSE and MINER, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants Dow Chemical Company, Diamond Shamrock Chemicals Company, Hercules Incorporated, Monsanto Company, T H Agriculture & Nutrition Company, Inc., Thompson Chemicals Corporation and Uniroyal, Inc. (collectively the "chemical companies") appeal from an order of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) unsealing materials produced or generated during discovery in the Agent Orange litigation. The materials in question had been sealed pursuant to two prior protective orders of the district court.

In ordering the documents unsealed, the district court relied on the findings of Magistrate Scheindlin, who concluded that intervenor-appellee Vietnam Veterans of America ("VVA") and intervenor Victor J. Yannacone, as well as the Agent Orange Plaintiffs' Management Committee, which filed a brief in support of the VVA's motion, had a statutory right of access to the subject discovery materials by virtue of Fed.R.Civ.P. 26(c) and Fed.R.Civ.P. 5(d). In balancing the interests of the parties, Magistrate Scheindlin determined that the chemical companies should be required to demonstrate good cause for continuing the protective order as to any particular document or category of documents. Appellants contest the magistrate's determination and argue that the blanket protective orders should remain in force absent a showing of extraordinary circumstances or compelling need. We affirm. ¹

BACKGROUND

The extensive procedural history and general background of the Agent Orange litigation is reported in In re "Agent Orange" Product Liability Litigation MDL No. 381, 818 F.2d 145 (2d Cir.1987), familiarity with which is assumed. Only those facts relevant to the protective orders at issue will be discussed here.

On February 6, 1981, Judge Pratt, then supervising the Agent Orange litigation, issued an order allowing the defendant chemical companies to designate as "confidential" any records that, in their estimation, contained "confidential developmental, business, research or commercial information." Any party receiving documents designated as "confidential" was required to refrain from disclosing them and to file them with the district court under seal, if filing was required. The documents were to be returned or destroyed at the end of the litigation. See Joint App. at 1689-95. Initial discovery involving the chemical companies took place pursuant to the February 6, 1981 order.

In May 1982, Special Master Schreiber, then supervising discovery in the litigation, orally issued a blanket protective order on all records produced or generated in discovery by any party, including the chemical companies and the government. The order provided that all documents and depositions were to be treated confidentially. In response to a motion filed on July 29, 1982, by CBS, Inc., the special master on October 14, 1982 signed a protective order incorporating procedures for dissemination of the discovery material, see In re "Agent Orange" Product Liability Litigation, 96 F.R.D. 582, 585-87 (E.D.N.Y.1983) (Special Master's Protective Order), and submitted a memorandum in support of the order to the district court.

The October 14, 1982 protective order provided that only "designated persons," e.g., parties, their attorneys, expert witnesses, and witnesses to depositions, would have unrestricted access to the discovery material. Under the terms of the order, those persons could disseminate discovery material to undesignated people only upon the authorization of the special master, following a review procedure. The party seeking to prevent dissemination had the burden of showing that good cause existed for continuation of the order with respect to the discovery material in question. See Fed.R.Civ.P. 26(c). The order also included a clause indicating that the October 14, 1982 order did not supersede the February 6, 1981 order regarding production of confidential documents.

In his supporting memorandum, the special master noted that good cause for his order existed because of the "complexity of this litigation, the emotionalism surrounding the issues, the number of documents yet to be reviewed and the desirability of moving discovery expeditiously in order to meet the June 1983 trial date." 96 F.R.D. at 583. He also concluded that the protective order did not unduly restrain first amendment rights. Finally, he noted that, "as discovery progresses and fundamental disputes are resolved, it may become desirable to lift this order." Joint App. at 1750. Judge Pratt approved and adopted the special master's protective order. 96 F.R.D. at 585.

The October 14, 1982 protective order subsequently was modified on two occasions. First, on May 12, 1983, Judge Pratt granted summary judgment in favor of four of the chemical companies based on the government contractor defense. Judge Pratt directed the special master to consider whether the blanket protective order should be modified to permit disclosure of papers and exhibits filed in connection with the summary judgment motion. In re "Agent Orange" Product Liability Litigation, 565 F.Supp. 1263, 1277-78 (E.D.N.Y.1983). The special master recommended that the October 14, 1982 protective order be lifted insofar as it related to "the material submitted with and referred to in the parties' summary judgment papers." In re "Agent Orange" Product Liability Litigation, 98 F.R.D. 539, 548 (E.D.N.Y.1983) (Special Master's Recommendation). Judge Pratt accepted and adopted the recommendation. Id. at 541. A further modification of the October 14, 1982 order, pursuant to a recommendation by the special master, was adopted by Chief Judge Weinstein, who had assumed responsibility for supervision of the Agent Orange litigation. In re "Agent Orange" Product Liability Litigation, 99 F.R.D. 645, 646 (E.D.N.Y.1983). That modification permitted release, with the consent of the government, of both its employees' depositions and documents it had produced that were not otherwise subject to specific protective orders filed in the litigation. ²

On April 23, 1984, two weeks before the trial was scheduled to commence, the parties filed their pretrial orders with the clerk, attaching all of the documents and depositions they intended to offer at trial. The orders and exhibit lists were filed publicly, and the sealed exhibits were filed in a locked room at the courthouse.

On May 7, 1984, several hours before the trial was to begin, the parties agreed to a tentative settlement, subject to the approval of the court. On June 11, 1984, a formal settlement agreement was filed. This agreement set forth in detail the terms of the settlement negotiated by the parties, subject to the approval of the district court. Paragraph 12 of the settlement agreement provided that

[t]he attorneys for the Class shall return to each defendant, respectively, all documents in their possession or control produced by that defendant, including microfilm and all copies, within 30 days after final judgment is entered in this action and is no longer subject to appeal or review, or if plaintiffs pursue claims against the United States within one year after the date of this Agreement, within 30 days after final adjudication of those claims, whichever is later.

Joint App. at 6694-95.

Before approving the settlement, Chief Judge Weinstein held Rule 23(b) fairness hearings throughout the United States. At a hearing held in New York on August 9, 1984, a representative of the VVA requested access to all of the Agent Orange discovery materials still subject to the protective orders. At the district court's direction, the...