Chicago Tribune Co. v. Bridgestone/Firestone Inc., INTERVENORS-PLAINTIFFS-APPELLEES

Decision Date28 August 2001
Docket NumberNo. 00-15133,DEFENDANT-APPELLANT,INTERVENORS-PLAINTIFFS-APPELLEES
Citation263 F.3d 1304
Parties(11th Cir. 2001) CHICAGO TRIBUNE COMPANY, THE WASHINGTON POST COMPANY, CBS BROADCASTING, INC., LOS ANGELES TIME COMMUNICATIONS, LLC, D.B.A. LOS ANGELES TIMES,, v. BRIDGESTONE/FIRESTONE, INC.,
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Georgia D. C. Docket No. 98-00069-CV-2

Before Black, Roney and Cox, Circuit Judges.

Per Curiam

This is an appeal of the district court's order unsealing documents previously filed pursuant to a protective order entered by stipulation of the parties. See Fed. R. Civ. P. 26(c)(7). We vacate and remand with instructions for the district court to determine whether "good cause" exists for maintaining the documents under seal.

I. BACKGROUND

Daniel Van Etten, an eighteen-year old football player from West Virginia University, died as a result of injuries sustained in a roll-over automobile accident. In April of 1998, his parents filed suit in the Southern District of Georgia, claiming that Bridgestone/Firestone, Inc.'s negligent design and manufacture of the tires on Daniel's Ford Explorer were the proximate cause of his death. 1 At the beginning of the litigation, in what has become commonplace in the federal courts, the parties stipulated to a protective order allowing each other to designate particular documents as confidential and subject to protection under Federal Rule of Civil Procedure 26(c)(7). See Fed. R. Civ. P. 26(c)(7). This method replaces the need to litigate the claim to protection document by document, and postpones the necessary showing of "good cause" required for entry of a protective order until the confidential designation is challenged. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987) (discussing operation and efficacy of umbrella protective orders). As the district court noted, this allowed Bridgestone/Firestone, Inc. (Firestone) to temporarily enjoy the protection of Rule 26(c), making Firestone's documents presumptively confidential until challenged. 2

Consistent with local rule, documents produced pursuant to discovery requests were not filed with the court. See S.D. Ga. LR. 26.6. The protective order required the parties filing confidential material with the court in connection with a pleading or motion to place the documents in a sealed, marked envelope. The documents were to be used only for preparation and conduct of the action, and only counsel, their paralegals and technical consultants, as well as the court and its staff, were privy to the content of any confidential document. Of the nearly three hundred documents filed in the action, fifteen were placed under seal.

Following discovery, Firestone moved for summary judgment. The district court denied the motion, and shortly thereafter the parties settled. In accordance with the terms of the protective order, the confidential documents remained sealed.

In the months following settlement, media scrutiny of tire tread separation accidents intensified, and members of the media, now appellees 3 (collectively, "the Press"), sought leave to intervene 4 for the purpose of unsealing Firestone's documents. Firestone agreed to unseal some of the material, but objected to disclosure of nine documents and ten pages excerpted from legal briefs, claiming that these particular items contain trade secrets. 5 In support of this claim, Firestone appended a privilege log and the affidavit of John Goudie, the Senior Product Engineer in Firestone's Product Analysis Department.

The district court granted the Press's motion to intervene as well as its consolidated motion to unseal the remaining documents, determining that the Goudie affidavit was too general and conclusory to carry Firestone's burden of showing "that the closure of the records filed with this Court is necessitated by a compelling interest and that the closure is narrowly tailored to that compelling interest." (R.31-326-16). Accordingly, the district court ordered the documents unsealed, but, granting in part Firestone's motion to stay disclosure pending appeal, delayed the unsealing. We granted Firestone's emergency motion for a stay pending Firestone's appeal.

II. ISSUE ON APPEAL

The only issue in this appeal is whether the district court abused its discretion by granting the Press's motion to open Firestone's sealed documents.

III. STANDARD OF REVIEW

We review a district court's denial of a protective order for an abuse of discretion. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989). A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000).

IV. DISCUSSION

Firestone's main contention is that the district court applied the wrong standard when it required Firestone to show that sealing the documents is necessitated by a compelling governmental interest and is narrowly tailored to that interest. Firestone argues for application of Rule 26's "good cause" standard, which balances the asserted right of access against the other party's interest in keeping the information confidential. See In re Alexander Grant & Co., 820 F.2d at 355-56.

The Press argues that two sources supply a right of access to Firestone's documents, both requiring application of the standard used by the district court. The Press first relies on the common-law right to inspect and copy judicial records, a right grounded in the democratic process, as "[t]he operations of the courts and the judicial conduct of judges are matters of utmost public concern." Landmark Comm. v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535, 1541 (1978). The Press argues that in cases concerning health and safety or where there is a particularly strong public interest in court records, the common-law right of access is measured by the compelling interest standard. See Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985); Brown v. Adv. Eng'g, Inc., 960 F.2d 1013, 1015-16 (11th Cir. 1992).

Additionally, the Press contends that there is a First Amendment right of access to court records and documents in civil cases. The Press cites Newman v. Graddick, 696 F.2d 796, 809 (11th Cir. 1983) for the proposition that the compelling interest standard applies to civil as well as criminal proceedings. Accordingly, the Press argues that whether the right of access is grounded in the common-law or the Constitution, the compelling interest standard applies.

Because the parties' arguments concern three different bases for disclosure of the sealed documents, it is necessary for us to limn the bounds of the common-law right of access, the constitutional right of access and Federal Rule of Civil Procedure 26(c). We consider first the constitutional right of access.

A. Constitutional Right of Access

The media and general public's First Amendment right of access to criminal trial proceedings has been firmly established since the Supreme Court's opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980). See Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 U.S. 596, 603, 102 S. Ct. 2613, 2618 (1982). For a court to exclude the press and public from a criminal proceeding, "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Id. at 607, 102 S. Ct. at 2620.

The constitutional right of access has a more limited application in the civil context than it does in the criminal. Newman, 696 F.2d at 800-01. Nonetheless, this court has extended the scope of the constitutional right of access to include civil actions pertaining to the release or incarceration of prisoners and their confinement. Id. at 801. Materials merely gathered as a result of the civil discovery process, however, do not fall within the scope of the constitutional right of access's compelling interest standard. 6 In re Alexander Grant & Co., 820 F.2d at 355.

Public disclosure of discovery material is subject to the discretion of the trial court and the federal rules that circumscribe that discretion. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S. Ct. 2199, 2208. (1984). Where discovery materials are concerned, the constitutional right of access standard is identical to that of Rule 26(c) of the Federal Rules of Civil Procedure. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989) (citations omitted). Accordingly, where a third party seeks access to material disclosed during discovery and covered by a protective order, the constitutional right of access, like Rule 26, requires a showing of good cause by the party seeking protection. Id.

The district court required Firestone to meet a compelling interest standard. To the extent this was predicated on a constitutional right of access, it was error. All of the documents were produced during the discovery phase of the litigation, and the protective order did not restrict the dissemination of information gained from other sources. See Seattle Times, 467 U.S. at 37, 104 S. Ct. at 2210. As we later discuss more fully, the adequacy of Firestone's good cause showing remains to be determined upon remand; because the Rule 26 standard is identical, the resolution of that issue will necessarily decide the Press's constitutional right of access claim.

B. Common-Law Right of Access

The common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process. See Richmond Newspapers, 448 U.S. at 564-74, 100 S. Ct. at 2821-26 (providing panegyric on the value of...

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