Romero v. Drummond Co., Inc., 06-13058.

• Decision Date: 14 March 2007
• Docket Number: No. 06-13058.,No. 06-13059.,06-13058.,06-13059.
• Citation: 480 F.3d 1234
• Parties: Juan Aquas ROMERO, Plaintiff-Appellee, v. DRUMMOND COMPANY, INC., Drummond, Ltd., Garry N. Drummond, Augusto Jimenez, Defendants-Appellees, Stephen Flanagan Jackson, Intervenor-Appellant. In re: Daniel M. Kovalik, Terrence P. Collingsworth, Derek J. Baxter, Robert G. Kerrigan, Interested-Parties-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

480 F.3d 1234

Juan Aquas ROMERO, Plaintiff-Appellee, v. DRUMMOND COMPANY, INC., Drummond, Ltd., Garry N. Drummond, Augusto Jimenez, Defendants-Appellees Stephen Flanagan Jackson, Intervenor-Appellant In re: Daniel M. Kovalik, Terrence P. Collingsworth, Derek J. Baxter, Robert G. Kerrigan, Interested-Parties-Appellants.

No. 06-13058.

No. 06-13059.

United States Court of Appeals, Eleventh Circuit.

March 14, 2007.

Barry A. Ragsdale, Ivey & Ragsdale, Birmingham, AL, for Jackson.

Leo P. Cunningham, Wilson, Sonsini, Goodrich & Rosati, Pala Alto, CA, for Appellants.

Lisa A. Davis, Wilson, Sonsini, Goodrich & Rasati, Palo Alto, CA, for Interested-Parties-Appellants.

Paul F. Enzinna, William H. Jeffress, Jr., Baker Botts, LLP, Washington, DC, Philip G. Piggott, W. Stancil Starnes, William Anthony Davis, III, Starnes & Atchison, LLP, Birmingham, AL, for Defendants-Appellees.

Appeals from the United States District Court for the Northern District of Alabama.

Before CARNES, PRYOR and FARRIS,^* Circuit Judges.

PRYOR, Circuit Judge:

In these consolidated appeals, several lawyers challenge a sanction of criminal contempt entered after the lawyers filed a motion and two declarations in open court, and a journalist seeks access to the filings, which have since been sealed following media reports about their contents. The underlying complaint contains sordid allegations of intrigue, corruption, and assassination in Colombia, "where the awful is ordinary." Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1242 (11th Cir.2006). After the district court by letter asked the U.S. Department of State whether this litigation would adversely affect the conduct of foreign affairs, the plaintiffs twice moved the district court to inform the Department about the contents of a recent declaration of a former Colombian official. The district court then held the plaintiffs' lawyers in criminal contempt and sealed their declarations and their motion to reconsider even though a month earlier the district court had decided that too many filings had been sealed.

There are two issues presented. The first issue is whether a protective order forbidding lawyers from making extrajudicial comments about the expected testimony of a witness clearly prohibited the lawyers from filing in open court declarations of potential witnesses attached to a motion. The second issue is whether the public has a common law right of access to the declarations and the motion to reconsider providing the declarations to the Department of State. Derek Baxter, Terrence Collingsworth, Robert Kerrigan, and Daniel Kovalik, the attorneys for the plaintiffs, appeal the sanction of criminal contempt, and Stephen Jackson, a free-lance journalist who intervened in the litigation, appeals the orders that sealed the motion to reconsider and the declarations and denied Jackson's motion to lift the seal. We vacate the sanction of contempt, because the filings were not clearly prohibited by the protective order, and we reverse, as unsupported by good cause, the orders that sealed the motion and declarations.

I. BACKGROUND

In 2002, a group of named and unnamed plaintiffs, including union leaders and relatives of deceased union members, filed a complaint against the Drummond Company and several of its executives. The complaint alleged that the president of Drummond Ltd., the Colombian subsidiary of Drummond, with the knowledge of executives in the United States, hired Colombian paramilitaries to kill and torture union members at a Drummond coal mine in Colombia. The district court allowed many of the plaintiffs to proceed anonymously based on their alleged concern for their safety in Colombia.

Drummond filed a motion to dismiss the complaint based on, among other arguments, the political question doctrine and international comity. The district court denied the motion and stated that the political question doctrine and issues of comity were fact-intensive and better addressed on a motion for summary judgment. The plaintiffs' lawyers then, through their website, urged the public to contact Drummond. They allegedly represented that the denial of the motion to dismiss established the validity of their complaint.

On the motion of Drummond, the district court entered a protective order. In addition to requiring counsel to remove from their website allegations about the denial of the motion to dismiss, the protective order prohibited "all participants, including potential witnesses . . . from making or authorizing extrajudicial comments . . . to the media and the public concerning . . . the character, credibility, reputation or criminal record of a party or witness, and the expected testimony of a party or witness." The protective order also directed "counsel for the parties [to] avoid commenting in court papers that are not filed under seal on evidence that is irrelevant to legal matters at issue therein." Jackson intervened to challenge the protective order based on the First Amendment. After a sharp exchange between Jackson's counsel and the court, the district court allowed Jackson to intervene, agreed to withdraw the original protective order, and entered a revised protective order.

The revised protective order applied only to counsel of record and prohibited them from "making or authorizing extrajudicial comments, and disseminating or authorizing the dissemination of information to the media and the public concerning . . . the expected testimony of a party or witness [or] [m]atters that counsel know, or reasonably should know, will be inadmissable at trial, and would if disclosed create a substantial risk of prejudicing an impartial trial." The order allowed an attorney to state "without elaboration or any kind of characterization whatsoever . . . [a]n allegation or defense made in this case, [i]nformation properly contained in the public record of this case; [s]cheduling information, or [a]ny decision made or order issued by the court that is a matter of public record." The revised protective order did not define its terms, require that any filings be made under seal, or limit references to evidence in court filings.

Unbeknownst to the plaintiffs and the district court, Drummond had been lobbying the Department of State to intervene in the litigation, but its efforts were hindered because it could not share sealed documents with the Department. Without making any findings about the need to file documents under seal, the district court had allowed the parties to file motions under seal and to designate discovered material as confidential.

On December 19, 2005, Drummond moved to unseal several documents. On April 7, 2006, the district court expressed its agreement with Drummond that too many documents were sealed: "At the outset, virtually everything filed in this case has been filed under seal. The court now questions the wisdom and propriety of such a blanket order." The district court ordered the parties to identify documents that could be unsealed or redacted without jeopardizing the safety or privacy of any party or witness. The district court also "join[ed] in the Plaintiffs' expressed concern about Defendants' unilateral contact with the State Department" and "deem[ed] it advisable that certain documents in this case be provided directly to the State Department for its review and evaluation . . . by the court." The district court instructed the parties not to contact the State Department about the lawsuit and proposed that it would prepare a letter to solicit the advisory opinion of the State Department on whether the litigation might affect foreign relations.

On April 26, 2006, the district court held a hearing to determine the form of the letter and attachments and reiterated its concern that too many documents were under seal. The district court complained that "as I looked back over this case, probably ninety-eight percent of what has been filed has been filed under seal . . . . I can't tell what's going on by looking at the docket sheet." Commenting on the inquiry to the State Department, the district court explained that it did not intend to "completely preclud[e the parties] from contacting [the government], but [the court] will act as the gatekeeper."

On May 15, 2006, the district court notified the parties that it had sent a letter to the State Department with copies of the pleadings. The district court also formally ordered the parties not to contact either executive officials of the United States or officials of Colombia:

No party or counsel or representative of any party or counsel shall make any unilateral, ex parte communication with anyone at the Un[i]t[]ed States Department of State, United States Department of Justice, or any representative of the Government of Col[o]mbia regarding any information relevant to or any matter at issue in this case, or the opinion requested of the Department of State.

The district court explained that it intended to arrange a telephone conference call with a representative from the State Department within a month.

On May 16, 2006, the plaintiffs filed a "Motion To Submit Pertinent Information To U.S. State & Justice Departments" to which they attached declarations of a former public official incarcerated in Colombia and Daniel Kovalik, a lawyer for the plaintiffs. The former Colombian official stated that he witnessed the head of the Colombian operations of Drummond hand a briefcase of cash to a paramilitary leader in exchange for killing two union leaders. Kovalik's declaration explained that on May 13, 2006, he flew to Colombia and interviewed the former official. On May 17, 2006, Drummond moved, under seal, to seal the motion and declarations. The district court immediately sealed the declarations, but not the motion itself, and denied the plaintiffs' motion.

On May 18, the plaintiffs moved for reconsideration of their motion. The plaintiffs argued that they had submitted the evidence as soon as it was available...