Underwood v. BNSF Ry. Co.
359 F. Supp. 3d 953
D. Mont.2018Background
- BNSF removed a Libby, Montana asbestos toxic-tort case to federal court; trial set for March 18, 2019.
- On Nov. 28, 2017 the Montana Supreme Court created an Asbestos Claims Court consolidating asbestos cases.
- Around that time MHSL (plaintiff’s law firm) gave statements to multiple media outlets about the Asbestos Claims Court and general asbestos litigation topics.
- BNSF moved for a narrow protective order under Rule 3.6, arguing MHSL’s publicity risked materially prejudicing the jury pool and unfairly influencing litigation.
- MHSL responded that its statements were permitted by MRPC 3.6(b), unrelated to the instant case, and not substantially prejudicial; it emphasized geographic and temporal remoteness.
- The magistrate judge denied the protective order without prejudice, finding no Rule 3.6 violation and insufficient showing of prejudice to justify a prior restraint; the court cautioned restraint with media.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MHSL's extrajudicial statements violated MRPC 3.6 | MHSL: statements were informational, fell within Rule 3.6(b) exceptions and did not concern the instant case | BNSF: statements created substantial likelihood of materially prejudicing potential jurors and fairness of trial | Court: No Rule 3.6 violation — statements were geographically/temporally remote and fit Rule 3.6(b) exceptions |
| Whether a protective order (prior restraint) is warranted | MHSL: not warranted because no prejudice shown; speech is protected and less-restrictive means exist | BNSF: protective order needed to prevent tainting jury pool; other measures are costly and insufficient | Court: Denied — BNSF failed to show clear and present danger or serious imminent threat; less-restrictive alternatives (voir dire, change of venue) exist |
| Burden to obtain prior restraint against counsel publicity | MHSL: high First Amendment burden; policy favors free dissemination about legal proceedings | BNSF: protects right to fair trial justifies restraint in appropriate cases | Court: Applied Ninth Circuit precedent requiring good cause and narrow tailoring; BNSF did not meet burden |
| Relevance of timing/geography of media statements to prejudice assessment | MHSL: statements were remote in time (≈15 months before trial) and largely outside local jury pool | BNSF: nationwide publicity can still taint jurors | Court: Timing and geography undercut claim of substantial likelihood of prejudice; remoteness weighed against granting restraint |
Key Cases Cited
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (lawyer speech may be restricted to protect fair trial, but application of rule requires showing of likely prejudice)
- Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F.2d 590 (9th Cir. 1985) (orders limiting attorney speech are prior restraints and require narrow tailoring and demonstration of danger)
- Greater Los Angeles Agency on Deafness v. Cable News Network, 742 F.3d 414 (9th Cir. 2014) (prior restraints on speech carry heavy presumption of invalidity)
- In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417 (9th Cir. 2011) (party seeking protective order must show good cause that specific prejudice will result)
- Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (standard for good cause for protective orders)
- Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (lawyer speech can be sanctioned if it prejudices administration of justice)
- Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (discusses special concerns with restraints on trial publicity)
- Thiel v. Southern Pac. Co., 328 U.S. 217 (1946) (recognizes right to impartial jury and interest in preserving fair trial)