Tavoulareas v. Washington Post Co., 83-1688

Decision Date15 March 1984
Docket NumberNo. 83-1688,83-1688
Citation724 F.2d 1010
Parties, 10 Media L. Rep. 1129 William P. TAVOULAREAS, et al. v. The WASHINGTON POST COMPANY, d/b/a the Washington Post, a Delaware Corporation, et al. Appeal of MOBIL CORPORATION, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 80-3032).

Loren Kieve, Washington, D.C., with whom Judah Best and George A. Birrell, Washington, D.C., were on the brief, for appellants.

David E. Kendall, Washington, D.C., with whom Irving Younger, Kevin T. Baine, and Scott M. Matheson, Jr., Washington, D.C., were on the brief, for appellee The Washington Post Co.

Anthony C. Epstein, Washington, D.C., with whom Robert R. Bruce and Judy D. Lynch, Washington, D.C., were on the brief, for appellees The Reporters Committee for Freedom of the Press, et al.

Joseph A. Artabane, Washington, D.C., entered an appearance for appellee Tavoulareas.

H. Bartow Farr, III, Washington, D.C., entered an appearance for appellee Sandy Golden.

Before TAMM and WILKEY, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Mobil Oil Corporation (Mobil) seeks reversal of the portion of a June 21, 1983 district court order that unsealed 3800 pages of deposition transcripts and 425 accompanying exhibits. The depositions and exhibits were initially designated confidential by Mobil pursuant to a "blanket" protective order issued on November 5, 1981. Mobil does not contest disclosure of the small portion of these depositions and exhibits that was used at trial. 1 It vigorously contests however, disclosure of those documents not used at trial. 2 Brief for Appellant at 2. Because we find constitutionally protected privacy interests in Mobil's confidential commercial information not used at trial and no overriding reason to disclose this information, we reverse the appealed portion of the district court's June 21, 1983 order. We remand with instructions to reinstate the seal on those depositions and exhibits designated confidential but never used at trial. 3


This dispute arises out of a libel action brought by Mr. William Tavoulareas, president of Mobil, and Mr. Peter Tavoulareas, his son, against The Washington Post Company (the Post). The libel claim was based on two articles published by the Post on November 30 and December 1, 1979. Each stated essentially that Peter Tavoulareas's ownership interest in Atlas Maritime Company and Mobil's extensive business transactions with Atlas were a result of nepotism. Record Excerpts (R.E.) at 531. 4 The Post served broad discovery requests on Mobil, initially a nonparty, while defending the lawsuit. 5

In response to the Post's discovery requests, Mobil moved for a protective order securing the confidentiality of commercial information sought by the Post. R.E. at 2, 10-13. Mobil filed an affidavit by Mr. Walter E. MacDonald, a vice president in charge of Mobil's international marine transportation activities, in support of its motion for the protective order. R.E. at 144. Mr. MacDonald attested that protection of the materials sought by the Post "is essential not only to avoid impairing the competitive position of Mobil and to afford it reasonable protection against disclosure of proprietary and confidential business information, but also to minimize the possibility of impairing Mobil's relationship with the Government of the Kingdom of Saudi Arabia ...." R.E. at 145.

More specifically, Mr. MacDonald described the business relationships among Mobil, a Saudi Arabian marine company called Samarco, and the London-based Atlas Marine Company. He explained that the negotiation and implementation of business arrangements among these three companies revealed Mobil's strategy in maintaining access to substantial volumes of crude oil from Saudi Arabia. R.E. at 147. Mr. MacDonald also stressed the importance of keeping confidential "a company's vessel operating costs and investment return, its internal decision-making and financial analysis procedures regarding the chartering ... of tankers, and its economic criteria applicable to decisions for the purchase or sale of vessels." R.E. at 148. Mr. MacDonald then gave specific examples of how public disclosure of the kind of documents requested would harm Mobil's competitive position. R.E. at 148-50.

On November 5, 1981, the district court issued Mobil's proposed protective order. 6 With regard to the harm disclosure could bring to Mobil's competitive position, the court noted:

Mobil has adequately specified the harm likely to result absent a protective order. As Mr. MacDonald attests, the public disclosure of many of these documents might undermine Mobil's relationship with the Kingdom of Saudi Arabia, hamper its ability to compete in the marine transportation business, and threaten its access to substantial volumes of crude oil from Saudi Arabia. Furthermore, many of the discovery requests appear likely to reveal confidential, internal Mobil documents dealing with strategy, negotiations, and long-range corporate planning. The conclusion is inescapable that public disclosure of these kind of sensitive corporate documents would cause Mobil competitive harm sufficient to warrant imposition of a protective order adequate in character and balanced to the needs of the parties.

Tavoulareas v. Piro, 93 F.R.D. 24, 29 (D.D.C.1981). The protective order permitted Mobil to designate confidential those documents that contained sensitive commercial information. Id. at 33. If the Post wished to contest a confidential designation, it could apply to the court specifying the documents it wanted to disseminate, id. at 29, 30 n. 4, and the reasons justifying dissemination. Id. at 35.

Pursuant to the November 5, 1981 protective order, Mobil forwarded thousands of documents to the Post. Mobil's corporate officials responded to questions in depositions revealing sensitive commercial information. All totalled, the Post took over 6000 pages of deposition transcript, 3800 of which were designated confidential by Mobil. After trial of the libel claim had been completed, Mobil moved on August 8, 1982 for the return of its confidential documents. On September 14, 1982, the Post moved to unseal all documents filed with the court, including the 3800 deposition pages here at issue. 7 The Post, however, did not identify which pages among the 3800 it wished to disseminate, or the specific reasons for objecting to Mobil's designation of the documents as confidential. R.E. at 255, 267-69. On May 18, 1983, the district court ordered Mobil to "more specifically inform the Court as to its justification for continuing to seal" the disputed depositions. R.E. at 202.

In response to the court's order, Mobil submitted on May 31, 1983 a second sworn statement of Walter E. MacDonald and several exhibits to demonstrate the continuing need for confidentiality of the depositions. R.E. at 203. Mr. MacDonald reaffirmed the confidential nature of Mobil's arrangements for transporting oil from Saudi Arabia. R.E. at 204. He again noted the impact that disclosing such information may have on Mobil's access to crude oil from Saudi Arabia. 8 R.E. at 204. He explained that Mobil's counsel "were instructed to designate as confidential any portion of a deposition where Mobil's confidential documents were used or where the subject of Mobil's proprietary business relations with its Saudi partners was brought up." R.E. at 208-09. Thus, while confidential designations were not assigned after a document-by-document examination, they were assigned according to a systematic method tailored to protect only sensitive material.

While Mr. MacDonald noted that he had been able to review only a few of the 3800 pages of depositions, he did attest that he was "generally familiar with the subject-matter of the documents ... as well as [with] the underlying transactions and their importance to Mobil." R.E. at 211. Mr. MacDonald assured the court that

Mobil's documents and information relating to its involvement in Samarco and its other shipping business remain confidential today as internal, proprietary, competitive information. Mobil has taken considerable care to maintain this information as nonpublic, proprietary material ....

Because Mobil is involved with these same persons [referred to in the depositions] today ... it is just as important that Mobil's internal deliberations and analyses (as well as its confidential communications with its partners) remain confidential and nonpublic. No business organization can function effectively in the business marketplace if its internal, competitive documents and information are made public.

R.E. at 211-12. Mobil attached to this affidavit an exhibit listing thirty-three depositions and the confidential and nonconfidential portions of each deposition transcript. R.E. at 222-23.

On June 21, 1983, the district court unsealed all 3800 pages of depositions. Tavoulareas v. Washington Post Co., No. 80-3032 (D.D.C. June 21, 1983). While the court noted that Mobil would not "have had to conduct a page-by-page examination of the over 3800 pages of sealed deposition," it concluded that "[i]t is sufficient merely to state that the justification Mobil has provided is not specific enough to warrant the continued sealing of these documents." R.E. at 231-32. On June 23, 1983, Mobil appealed this order. We have jurisdiction under 28 U.S.C. Sec. 1291 (1976).

After full consideration, we disagree with the district court's conclusion that Mobil's showing was insufficient to justify continued confidentiality of those depositions never used at trial. Our decision follows from a different view of the relevant statutory and constitutional...

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