Doe v. District of Columbia, No. 80-2171

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MacKINNON and EDWARDS, Circuit Judges, and ROBB; Separate statements filed by MacKINNON and HARRY T. EDWARDS; HARRY T. EDWARDS
Citation697 F.2d 1115,225 U.S. App. D.C. 225
PartiesJohn DOE, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.
Decision Date07 March 1983
Docket NumberNo. 80-2171

Page 1115

697 F.2d 1115
225 U.S.App.D.C. 225
John DOE, et al.
v.
DISTRICT OF COLUMBIA, et al., Appellants.
No. 80-2171.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 23, 1981.
Decided Jan. 11, 1983.
As Amended Jan. 18, 1983.
As Amended on Denial of Rehearing March 7, 1983.

Edward E. Schwab, Asst. Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel and Michael Zielinski, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellants. David P. Sutton, Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellants.

Peter J. Nickles, with whom Ellen Bass, Joseph M. Fisher and Charles E.M. Kolb, Washington, D.C., were on the brief, for appellees.

Before MacKINNON and EDWARDS, Circuit Judges, and ROBB, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Separate statements filed by MacKINNON and HARRY T. EDWARDS, Circuit Judges.

HARRY T. EDWARDS, Circuit Judge:

Appellees, inmates in the Lorton Maximum Security Facility ("Maximum"), brought this class action against the District of Columbia and several of its officials and employees, challenging the conditions of their confinement on a variety of constitutional, statutory and common law grounds. At trial, appellees presented evidence of their exposure to the danger of violent assault and sexual abuse--a situation allegedly caused or exacerbated by understaffing, deficient security equipment and procedures, inadequate systems for classifying and segregating prisoners, and a poorly designed and deteriorating physical plant. The case was submitted to a jury, which returned a verdict finding that the appellants had violated (a) the Eighth Amendment to the United States Constitution; (b) their duty of due care under the common law; and (c) their statutory duty to provide the inmates with "safekeeping, care, protection, [and] instruction." 1 The jury awarded to each member of the class of appellees damages in the amount of one dollar for each day of incarceration between July 4, 1976 and June 20, 1980. The trial judge supplemented that award with injunctive relief designed to ameliorate conditions in Maximum found to be violative of applicable common law, statutory and constitutional standards.

Appellants attack the verdict and the awards of relief on several grounds. 2 We find merit in four of the allegations of error. First, the issuance of a protective order sharply curtailing the ability of appellants' counsel to discuss with their clients information obtained during discovery constituted, we conclude, an abuse of discretion. Second, the failure to instruct the jury that appellants could not be held liable on a respondeat superior theory for constitutional torts committed by prison guards

Page 1118

was error. Third, the instruction concerning the danger posed to weaker inmates by their proximity to a group of violence-prone prisoners was misleading. Fourth, the authorization to the jury to award appellees damages for the intrinsic value of their constitutional rights was inconsistent with controlling precedent.

I. THE PROTECTIVE ORDER

In the course of trial preparation, appellees expressed reluctance to comply with appellants' discovery requests, fearing that the information they provided would somehow be transmitted to correctional officers inside Maximum and thence to other prisoners. The net result, they pointed out, would be to expose them to serious risk of violent reprisal. Appellants responded that they needed the information in question in order to prepare their defense. The trial judge attempted to devise a compromise solution to this dilemma. She granted appellants' motion to compel discovery. But, soon thereafter, she also granted appellees' motion for a protective order, pursuant to FED.R.CIV.P. 26(c), designed to prevent the facts revealed or allegations made in the course of discovery from entering the prison "grapevine."

Our first task is to determine just how much the District Court restricted the ability of appellants' counsel to make use of the information they obtained. Unfortunately, the order was inartfully drafted. Viewed in isolation, it might be interpreted as prescribing only the situs of communications between appellants and their attorneys. 3 But such a reading would be inconsistent with the intent and understanding of the parties and, apparently, of the trial judge. Appellees certainly sought an order "prohibit[ing] defendants' counsel from in any way making known to the defendants information provided by plaintiff class members in depositions or other discovery proceedings." 4 Furthermore, the District Court explicitly stated that "plaintiffs' motion for protective order be and the same is hereby granted" 5 and gave no indication that the terms of the decree were any different from those requested; this strongly suggests that the order should be construed to comport with appellees' original plea. Any qualms we might have concerning such a construction are removed by the fact that

Page 1119

the subsequent conduct of appellants, appellees and the trial judge makes plain that they all assumed that no discussion was permitted between appellants and their counsel concerning the fruits of discovery. The issue presented for review, therefore, is the validity, on the facts of this case, of a protective order forbidding not only all dissemination to the public but all disclosure by counsel to their clients of information of specified sorts obtained during discovery.

In general, district courts have broad authority, under FED.R.CIV.P. 26, to distinguish reasonable and productive uses of the discovery procedures from abusive invocations of those procedures and to design protective orders to curtail the latter. See Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 (4th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Appellate courts will overturn such judgments only upon a clear showing of an abuse of discretion. Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973).

Protective orders that restrict dissemination to the public of discovered information, however, stand on a somewhat unusual footing. The resultant infringement of interests protected by the First Amendment, we have held, requires a district court to be careful to grant such an order only when essential to shield a party from significant harm or to protect an important public interest. In re Halkin, 598 F.2d 176, 190-91 (D.C.Cir.1979). Moreover, the court must tailor the restraint so as to sweep no more broadly than necessary. Id. at 191.

District courts must be equally chary of issuing protective orders that restrict the ability of counsel and client to consult with one another during trial or during the preparation therefor. Such orders arguably trench upon constitutional interests at least as important as those infringed by restrictions on public dissemination of information. It is, of course, well established that due process requires "at a minimum ... that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). In many situations, the right to a hearing would be meaningless were the litigant forbidden to obtain the assistance of a lawyer in determining the nature of the claims against him, the opposing arguments available to him, and the manner in which his case would be most effectively presented. See Note, The Indigent's Right to Counsel In Civil Cases, 76 YALE L.J. 545, 548-49 (1967). The foregoing considerations have prompted the Supreme Court to observe, in dictum:

If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) (emphasis added). Relying on similar arguments, some lower courts have expressly held that a civil litigant has a constitutional right to the assistance of hired counsel. Potashnick v. Port City Construction Co., 609 F.2d 1101, 1117-18 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); Roberts v. Anderson, 66 F.2d 874, 876 (10th Cir.1933); Rex Investigative and Patrol Agency, Inc. v. Collura, 329 F.Supp. 696, 699 (E.D.N.Y.1971) (dicta).

In order to decide the case before us, we need not elevate to constitutional status the right to the aid of counsel. It is sufficient for present purposes to recognize simply that every litigant has a powerful interest in being able to retain and consult freely with an attorney. Insofar as the fair administration of justice requires that all parties to a controversy be fully and equally informed of their entitlements, the public has a similarly important interest in preserving the ability of each disputant to confer with his lawyer. This public interest is reinforced by the value we place on the right of every litigant to participate in the process whereby justice is done--to understand

Page 1120

and become involved in the proceeding, not to be compelled passively to await its outcome. 6 Regardless of whether these considerations are deemed to be inherent in the principle of due process, they must be accorded considerable weight by a trial judge when considering the propriety of issuing a protective order under FED.R.CIV.P. 26(c). 7

We conclude, therefore, that the criteria set forth in our decision in In re Halkin as prerequisites for the issuance of an order restricting public dissemination of information obtained through discovery are equally applicable to the issuance of an order forbidding counsel to reveal such...

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39 practice notes
  • Drum v. Nasuti, No. 85-4494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 25, 1986
    ...statute in a Bivens type case. See McClaim v. Barry, 697 F.2d 366, 375 n. 8 (D.C.Cir.1983); see also Doe v. District of Columbia, 697 F.2d 1115, 1123 (D.C.Cir. 1983) (bodies of law relating to Bivens and § 1983 litigation have been associated in many respects). The proper characterization o......
  • Burns v. Pa Dep't of Corr., No. 09–2872.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 20, 2011
    ...interest, there is no requirement that the remedy be limited solely to that property interest. See, e.g., Doe v. District of Columbia, 697 F.2d 1115, 1124 (D.C.Cir.1983) (finding prisoners whose Eighth Amendment right to be free from cruel and unusual punishment had been violated to be “ent......
  • Hobson v. Wilson, Nos. 82-2159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 1984
    ...result have been extended to other constitutional rights, and to claims not based on section 1983. Thus, in Doe v. District of Columbia, 697 F.2d 1115 (D.C.Cir.1983), in which we applied Carey to a Bivens action challenging prison conditions on the basis of the Eighth Amendment, we observed......
  • Parrish v. Johnson, No. 84-1642
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 5, 1986
    ...the common law, not whether the constitutional provision violated was substantive or procedural. See Doe v. District of Columbia, 697 F.2d 1115, 1122-23 (D.C.Cir.1983); Lancaster v. Rodriguez, 701 F.2d 864, 866 (10th Cir.) (per curiam), cert. denied, 462 U.S. 1136, 103 S.Ct. 3121, 77 L.Ed.2......
  • Request a trial to view additional results
39 cases
  • Drum v. Nasuti, No. 85-4494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 25, 1986
    ...statute in a Bivens type case. See McClaim v. Barry, 697 F.2d 366, 375 n. 8 (D.C.Cir.1983); see also Doe v. District of Columbia, 697 F.2d 1115, 1123 (D.C.Cir. 1983) (bodies of law relating to Bivens and § 1983 litigation have been associated in many respects). The proper characterization o......
  • Burns v. Pa Dep't of Corr., No. 09–2872.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 20, 2011
    ...interest, there is no requirement that the remedy be limited solely to that property interest. See, e.g., Doe v. District of Columbia, 697 F.2d 1115, 1124 (D.C.Cir.1983) (finding prisoners whose Eighth Amendment right to be free from cruel and unusual punishment had been violated to be “ent......
  • Hobson v. Wilson, Nos. 82-2159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 1984
    ...result have been extended to other constitutional rights, and to claims not based on section 1983. Thus, in Doe v. District of Columbia, 697 F.2d 1115 (D.C.Cir.1983), in which we applied Carey to a Bivens action challenging prison conditions on the basis of the Eighth Amendment, we observed......
  • Parrish v. Johnson, No. 84-1642
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 5, 1986
    ...the common law, not whether the constitutional provision violated was substantive or procedural. See Doe v. District of Columbia, 697 F.2d 1115, 1122-23 (D.C.Cir.1983); Lancaster v. Rodriguez, 701 F.2d 864, 866 (10th Cir.) (per curiam), cert. denied, 462 U.S. 1136, 103 S.Ct. 3121, 77 L.Ed.2......
  • Request a trial to view additional results

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