State ex rel. Mitsubishi v. Milwaukee County
| Decision Date | 23 February 2000 |
| Docket Number | No. 99-2810-W, No. 99-3110-W. |
| Parties | STATE EX REL. MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., Petitioner, v. CIRCUIT COURT FOR MILWAUKEE COUNTY, The Honorable Dominic S. Amato, presiding, Travelers Property Casualty Insurance Company, The Travelers Indemnity Company of Illinois, Neil F. Lampson, Inc., HCH Miller Park Joint Venture, Hunzinger Construction Company, Clark Construction Builders, Inc., Huber, Hunt & Nichols, Inc., The Milwaukee Journal Sentinel, Inc., Patricia Wischer, individually, and as Special Administrator of the Estate of Jeffrey A. Wischer, deceased, Marjorie DeGrave, individually and as Special Administrator of the Estate of William R. DeGrave, deceased and Ramona Dulde-Starr, individually and as Special Administrator of the Estate of Jerome W. Starr, deceased, Respondents. STATE EX REL. MITSUBISHI HEAVY INDUSTRIES AMERICA, INC., Petitioner, v. CIRCUIT COURT FOR MILWAUKEE COUNTY, The Honorable Dominic S. Amato, presiding, Patricia Wischer, Marjorie DeGrave, Ramona Dulde-Starr, Travelers Property Casualty Insurance Company, The Travelers Indemnity Company of Illinois, Neil F. Lampson, Inc., HCH Miller Park Joint Venture, Hunzinger Construction Builders, Inc., Huber, Hunt & Nichols, Inc., The Milwaukee Journal Sentinel, Inc. and Hearst Argyle Television, Inc., Respondents. |
| Court | Wisconsin Supreme Court |
For the petitioner there was oral argument by Ralph A. Weber and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, SC., Milwaukee.
For the respondent, The Milwaukee Journal Sentinel, Inc., there was oral argument by John A. Busch and Michael, Best & Friedrich, Milwaukee.
¶ 1.
Mitsubishi Heavy Industries America, Inc. (Mitsubishi) petitions this court to issue a supervisory writ directed to the Circuit Court for Milwaukee County, the Honorable Dominic Amato presiding. Mitsubishi challenges the circuit court's order dated October 29, 1999, which permitted the Milwaukee Journal Sentinel, Inc. (MJS) to intervene in the underlying negligence action. The order directed, among other things, that the parties "in possession of any deposition, transcript, deposition videotape or related exhibits . . . provide copies of such materials upon request of Journal Sentinel Inc."1
¶ 2. The dispositive issue in this case is whether the circuit court erred in permitting MJS to intervene in this action and directing that MJS have access to unfiled, pretrial discovery materials the parties and their attorneys may have in their possession. We conclude that the Milwaukee Journal Sentinel, Inc. should not have been permitted to intervene as a matter of right to obtain access to unfiled, pretrial discovery materials. Accordingly, we grant this petition for supervisory writ.
¶ 3. On July 14, 1999, three ironworkers were killed when a construction crane collapsed while lifting a section of the retractable roof for the new stadium being constructed at Miller Park in Milwaukee. Subsequently, on August 12, 1999, the widows of the three deceased iron workers (plaintiffs) brought suit against Mitsubishi Heavy Industries America, Inc., the subcontractor for the construction of the retractable roof, and other entities alleging claims of negligence as well as claims for punitive damages.
¶ 4. The plaintiffs then served deposition subpoenas on five employees of Mitsubishi and scheduled oral, videotaped depositions of those employees beginning in the second week of October, 1999.
¶ 5. On October 1, 1999, Mitsubishi filed a motion in the circuit court seeking a protective order pursuant to Wis. Stat. § 804.01(3),2 and a stay of the depositions of its five employees until investigations by the Milwaukee County District Attorney's Office and Occupational Safety and Health Administration (OSHA) had concluded and the possibility of criminal prosecution had passed. The circuit court, after a hearing, imposed what it referred to as a "gag order" directing that the depositions of the five Mitsubishi employees be sealed, that the parties and their attorneys be subject to the gag order and not reveal to the public or press the contents of those depositions, and that the gag order remain in effect for 30 days after the employees' depositions were completed after which Mitsubishi would have to demonstrate that the depositions of the five employees should remain sealed.
¶ 6. At a subsequent scheduling conference held on October 15, 1999, the court explained that the gag order remained in place with respect to the depositions of the five Mitsubishi employees, but that the order did not apply to any other depositions. The court reiterated that the gag order would not remain in place indefinitely, but that within 30 days after the depositions of the five Mitsubishi employees had been completed, the gag order would be lifted unless Mitsubishi gave sufficient reasons why the order should remain in effect.
¶ 7. On October 18, 1999, the scheduled deposition of an employee of Neil F. Lampson, Inc., the lessor of the crane and one of the named defendants in the underlying action, was held. A representative from MJS appeared at that deposition and requested that he be allowed to attend and be given copies of the transcript. Because there was confusion and disagreement between the parties about the extent of the court's gag order, this request was denied and MJS's representative was told to seek court permission to gain access to the depositions.
¶ 8. The next day, October 19, 1999, MJS filed a motion in the circuit court to intervene as a matter of right in the underlying action pursuant to Wis. Stat. § 803.09(1). MJS claimed that it had a right to intervene for the purpose of protecting the public's interest in disclosure of the discovery proceedings. MJS also sought clarification of the existing gag order, review of the documents sealed by the circuit court, release of the videotapes and transcripts of depositions, and the right to attend or view other depositions.
¶ 9. Mitsubishi opposed these requests asserting that Wisconsin law does not give the public a right to examine before trial depositions or discovery materials and therefore, MJS had no right to intervene in the underlying circuit court action. Mitsubishi also asserted that media representatives have no right to attend depositions. Noting that the existing gag order only applied to the depositions of its five employees, Mitsubishi maintained that there was "good cause" for such order. Mitsubishi asked the court to deny MJS's motions; however, Mitsubishi did not ask the circuit court for affirmative relief in the form of a new protective order pursuant to Wis. Stat. § 804.01(3) to apply to discovery and depositions of individuals other than its five employees.
¶ 10. At the October 21, 1999 hearing on the motions, MJS's attorneys clarified that the newspaper was not contesting the existing gag order insofar as it related to the depositions of the five Mitsubishi employees; according to MJS, it wanted the gag order clarified so that lawyers for the parties would not be prevented from voluntarily discussing with MJS's representatives their theories and the facts of the case. Furthermore, MJS asserted it wanted access to the transcripts and videotapes of individuals other than the five Mitsubishi employees, and MJS wanted the right to attend the depositions if invited by any of the parties.
¶ 11. Mitsubishi reiterated its opposition and again asserted that members of the media have no right to attend discovery depositions in civil actions, nor does the media have a right of pretrial access to discovery materials, including deposition transcripts, until those transcripts are filed with the court.
¶ 12. The circuit court explained that the only gag order in effect in this matter related to the depositions of the five Mitsubishi employees. Then the court ruled that the press had a right of access to information obtained in the course of discovery proceedings and that the only way such access could be denied would be if a timely motion for protective order were brought.3 ¶ 13. The circuit court's oral ruling was subsequently reduced to written form and entered on October 29, 1999. That October 29th order, which is the subject of this petition for supervisory writ, provides:
¶ 14. Mitsubishi thereafter filed a petition for supervisory writ in the court of appeals asking that the circuit court be prohibited from enforcing the October 29th order. On November 23, 1999, the court of appeals denied Mitsubishi's petition for supervisory relief. The court of appeals distilled Mitsubishi's arguments to two primary contentions: (1) MJS does not meet the criteria for intervention under Wis. Stat. § 803.09; and (2) deposition transcripts, videotapes and exhibits that are not yet on file in the...
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