*1 probe challenged and on its into intent the sum, legally pertinent.
evidence
this restricted role of the evidence was the jury sensibly function that could
have it. assigned to follows, then, limiting that a instruc- Wilkey, Judge, dissenting Circuit filed utility
tion would have had little or no here. opinion. Indeed, accomplishment might its chief well simply highlighting been of the vi- deotape testimony related of Offi- Lilly.
cer And since the defense did not see trial,
fit to call for such an instruction at we holding
see no basis for the court was
plainly wrong failing give one. It is that,
well limiting known even when a in- likely cause,
struction is to aid the accused’s
astute defense may prefer counsel tactically forego it in the interest avoiding its jury’s
inevitable focus of the attention on Certainly
unfavorable evidence.43 in a situ- us,
ation of the sort now before it is for ask,
counsel to and not for the court
volunteer. judgment appealed from is
Affirmed. al.,
In re Adele HALKIN et Petitioners.
No. 77-1313.
United States Court Appeals,
District of Columbia Circuit.
Jan. 1979.
As Amended Jan. Id. at 450 F.2d at
178 *3 Gen., Babcock, Atty. Asst. Allen
Barbara Anderson, Whitak- Elizabeth Gere J. David Larry Gregg, L. er, Daiger and W. Gordon C., Justice, Washington, D. Attys., Dept, of respondent. pleadings, for were on the Briggs, Taylor R. Charles P. Sifton pleadings City, York were on New Communications, respondent, ITT World Inc. R. Bruce Richard Schumacher
H. Dickson, plead- City, were on New York RCA Global Communi- ings, respondent, cations, Inc. *4 Hellerstein,
Walter C. Pozen and Alvin K. pleadings, for City, New York were on International, respondent, Western Union Inc. WRIGHT, and BA- Judge,
Before Chief WILKEY, Judges. Circuit ZELON and by BAZEL- Opinion for the Court filed ON, Judge. Circuit WILKEY, Dissenting opinion filed Judge. Circuit BAZELON, Judge: Circuit in Hal motion of defendants On the (D.D.C.), the Helms, No. 75 1773 kin Civ. February entered an order district court and counsel prohibiting parties extra-judicial making any in that case from produced information statements about publicly dis through discovery, and from through dis produced closing any material material a except by making such covery, in that record. Plaintiffs part of the court writ of this court for a petition case now vacating the prohibition1 mandamus and/or court’s order. district I. BACKGROUND Shattuck, H. Lynch Mark and John H. F. of indi- C., in Halkin are a number
Washington, pleadings, D. were on the Plaintiffs allege organizations who petitioner. viduals and Columbia, 1. The writ of mandamus is often used tion.” Morrow v. District 160, 165, higher compel U.S.App.D.C. positive court to certain actions court, petitioner precisely part distin need not on the of a while the writ of A lower See, g., prohibition prevent guish e. In re seeks. is used to such actions. which writ he Simons, counterparts 62 L.Ed. The two writs are thus and “are Note, Advisory Supervisory together by higher often . . used Act, jurisdic- 86 Harv.L. bring All Writs Mandamus Under the a lower court back within its government agencies, principally styled certain ment “Federal George Defendant Response Bush’s Partial Intelligence Agency the Central Plaintiffs’ First and the Request Documents,” for Production Security Agency, National as well as sever- App. -9, at 6 which indicated that the pro- carriers, al common conducted unlawful duced documents had been purged of all programs of surveillance United States matter which the Government asserted opposed citizens who the war in Vietnam or (1) impair diplo- would the United States’ engaged political in other lawful activities. relations, matic and foreign including the damages equitable Plaintiffs seek relief relationships CIA’s foreign intelligence alleged violations of their constitutional services, security (2) or or reveal intel- CIA statutory rights. plaintiffs Neither nor ligence sources and methods or the investi- jury defendants Halkin demanded a gative intelligence or activities of another trial. government agency, (3) United States filing complaint, After plaintiffs re- implicate privacy par- interests of third quested, under Fed.R.Civ.P. documents sought ties.2 Defendants no or- CHAOS, relating Operation the code 26(c) limiting-plain- der under Fed.R.Civ.P. name for the CIA’s surveillance of anti-war documents,3 tiffs’ use of these nor was activists. On December defend- any express there implied agreement be- plaintiffs ants made available to some of parties concerning tween the their use. documents, approximate- these constituting counsel, however, Plaintiffs’ believed that ly pages. Appendix (App.) at 10. At impor- some of these documents contained time, the same also filed a previously defendants docu- tant information not known con- *5 sought, grounds good Rev. n.1 595, 595 Since and for cause shown, the the issuing pending in identical, the writs which are the action is or alter- virtually we relating shall for convenience refer to on matters natively, re to a petitioners’ deposition, though the court in quest were for the district where mandamus alone. the deposition is to be taken make order which may any 2. Defendant Bush’s set out a response code justice to a or requires protect party person explaining (App. the deletions in the documents from annoyance, embarrassment, oppression, 8-9): including or or undue burden one or expense, following numbers and have been The letters (1) following. more of the that the discovery inserted where deletions have been made to (2) not be that the had: be discovery may indicate the nature of information or words had on only specified conditions, terms and which been withheld from disclosure to including designation a of the time or place; the These numbers and letters de- plaintiffs. (3) that the be discovery may had a only by objection grounds note a and the particular method of other than that discovery selected therefor. seeking (4) the by party that cer- discovery; denoting revealing 1. Words or text or CIA into, tain matters not be or inquired that the bases, station, field or components. scope be limited to certain 2. indicator, or infor- Cryptonym, sensitivity (5) matters; that be conducted handling mation indicator. designat- with no one present except persons identifying 3. or Words text a CIA employee (6) ed court; the by that a after deposition organizational or component. being sealed be opened order of the only by 4. classification of the document. Security (7) court; that a trade secret or other confi- A. Information obtained from or about the dential research, or commercial development, intelligence investigative of an- or activities information not be disclosed or be disclosed agency. other United States Government designated (8) in a only way; parties identifying intelligence B. Words or text an file simultaneously specified documents or foreign government or service of a in security information enclosed in sealed to envelopes CIA, liaison with or information obtained be as directed the court. opened by from such liaison with CIA. relationship If the motion for a is de- protective C. Irrelevant information or words identify- nied in whole or in the court on part, may, a whose interests non-party privacy just, such terms and conditions as are entitled to from disclosure. protection that any or party or person provide permit identifying aiding D. Words or text or 37(a)(4) The discovery. of Rule provisions intelligence foreign identification or of CIA apply award of in incurred expenses counter-intelligence or sources methods. relation to the motion. 26(c) 3. Fed.R.Civ.P. provides: (c) Protective Orders. a Upon by motion or from by person whom discovery pro for a response, In defendants moved App. at operation cerning the of CHAOS. 26(c). Citing pursuant to Rule gave tective order plaintiffs January On 27(d),5 argued that defendants Local Rule to release intended written notice would of the documents pro- public disclosure January and several documents right to ad to defendants’ “prejudicial copy press with a vided defendants in this civil action judication of issues by they planned which to announce release climate, includ and an uncolored unbiased availability the documents.4 stated It ments moves and obtains from the are available appropriate public, our view that to answer jury, plain press regarding such sion rected otherwise ence to with a ularly dissemination documents CHAOS which Under all the has been a matter of tive this lawsuit. and an extended additional that we documents. cation documents, intend to announce this produced ments production of a formal closed. researchers and consultants will be available ments concerning above-captioned dle is our view that a defendants opportunity answer prohibited by public future, (App. consultants responsibility press press letter constitutes we press [******] since this case is not having were unless public notice fair gave public see no reasonable likelihood significance of such Counsel for documents available to should not be denied access rests with on any questions of discovered concern we will consider ourselves release, any questions we information produced trial. the Despite ample will attorneys circumstances, 20): defendants, plaintiffs’ January been made and release of such documents. we press, your that we intend to make the to consider how we records” which is substantial “a are free inspection Congressional case our Local Rule documents. be of party producing contemplate all Operation Moreover, quotation notice the text providing you with the a court. Such intention to release the come to the the discovered documents documents, without such intense applying order. significant availability by likely party producing from the fact documents, plaintiffs over about letter has 1977. We further directed number of docu- alert being tried to documents, of which is we believe that despite the CHAOS public 27(d). to involve the light the investigation. can interfere for a Because researchers is further the unless di- press interest Operation the docu- expressly the telephone public produced and their court an or an will given counsel through interest expres- protec- Partic- to ex- public free means public refer- appli- docu- them han- and fact this the the en- or us In In a court on stated that on 20 of the Canons of Professional Responsibility Columbia Court of Defendants also cited lieu” of DR7 Local which release action shall not litigation lawyer extrajudicial nication (d) tion which fair trial ord of transaction involved. nations ness. (3) party to submit (2) (1) law or administrative rule. (4) (5) terfere or defenses gation. wise the pending tice. fere with beyond quotation from the records and ex case pers ment. unprofessional cases it is better letter Newspaper publications three documents to the disseminated parte Evidence Conduct Any His extreme circumstances such dissemination will interfere from Newspaper on prejudice Rule justify Generally are not covered a reasonable with February or lodged opinion forthwith character, performance or or tests or the refusal file in the other matter reasonable and which relates to: if there is or reference make or party, plaintiffs law firm or reference fair 107(G) of a anticipated litigation a fair statement, 27(d) provides: statement regarding in the chambers the to make it Attorneys as they trial in the witness, to such. amended party, except Appeals, which retains Can- during Discussion of to avoid 9, 1977, plaintiffs’ court; any produced credibility, or criminal rec- *6 to the trial of the action. and participate due administration of to the facts should means of had the person are to be condemned. associated by reasonable (H). results Code other its merits planned but th'e occurrence a any by anonymously. press. by Courts protective would prospective wit- investigation Canon public CiVil Cases. even public of Professional the District as than ex or failure of of the district of the claims Pending Liti- lawyer public, likely required by parte state- making documents any in and other- Ethics likelihood expect particular 20 reads: a commu- records, counsel extreme release a civil exami- with a quota- order. to in- inter- as to jus- pa- “in An or go A If 22, 1977, and, February documents re- App. at 24.6 Defendants’ ing a fair trial.” accompanied by any was not affida ported App. motion at 30. on their contents. vits, any other nor evidence adduced petitioned for a Plaintiffs have this court support. its writ of mandamus9 to vacate the district motion, opposed Plaintiffs defendants’ ar- jurisdiction to issue court’s order. Since guing that a order would lack upon extraordinary depends this writ our “good required by cause” Fed.R.Civ.P. petitioners’ evaluation the merits of 26(c) and would violate the First Amend- claims, propriety we defer discussion of part opposition plaintiffs ment. As of their of relief until after our evaluation of the lodged with the district court three docu- petition. substantive issues raised this press plain- ments and the statement which Gasch, Times, U.S.App. Inc. v. Colonial tiffs they asserted had to release.7 intended 184, 187, D.C. February On the district court presented by importance of the issue signed proposed defendants’ order restrain- case, relatively and the scant attention parties pub- and their counsel from cases, previous requires us it has received in licly disclosing information obtained claim. depth petitioners’ to consider in some discovery. through The court made no fact, findings of but stated that disclosure “contrary applicable
would
to rules
AND
II. THE
AMENDMENT
FIRST
litigation
the conduct of
before this Court
THE
PROCESS
DISCOVERY
obligations
par-
inconsistent
order of
many respects,
just
ties and their counsel
to further
February
comparatively
14 is
narrow.
jurisdic-
determination of matters within its
prohibit
does not
the news
tion.”8
comment
Although
parties'Claim
to have
order,
media,
complied
only extrajudicial
with this
the New
but
statements
York
acquired
Times somehow
parties
access to these
and their
Nor does it
counsel.10
argued
subject,
indirectly,
directly
6. Defendants also
that the documents
either
of extra-
provided through discovery
part
judicial
publication by
par-
were not
statements or
record;
public
plaintiffs’ press
counsel,
release
ties
disclose
except
nor shall
otherwise
any
constituted a “comment on or characterization
such information or documents
documents”;
Court,
of
plaintiffs
the contents of the
proceedings
and that
before this
had failed to demonstrate
“need”
it is further
,.App.
disclosure of the documents.
prohibition against
ORDERED
dis-
at 25-26.
purposes directly
other
closure
furtherance of
than for
litigation
of this civil action
7. These documents have now been filed under
before this
shall
until modi-
Court
continue
seal with this court.
by subsequent express
fied or removed
of this Court.
stated,
8. The court’s order
in full:
Upon
supra.
consideration of the federal defend- 9. See note I
Order, plaintiffs’
ants’ Motion for Protective
*7
Although
operative portion
thereto,
opposition
the
of the order
plaintiffs’
and of
counsel’s
proposed
counsel,”
parties
January 24,
is limited to “the
n. 8
to
discovery
consultants,
or their
see
letter of
1977 and the
supra,
preamble
disapprovingly
press
thereto,
the
refers
appear-
release attached
and it
“extra-judicial
statements
of
extra-judicial
or disclosure
to the Court that
state-
researchers,
by .
by
materials
ments or disclosure of
materials
may
parties,
counsel,
persons
researchers,
or other
who
be asso-
the
their
and
consultants,
parties
persons
may
ciated with
or
in this
[the
counsel]
or
other
who
be
”
CBS,
civil action.
.
Id.
In
Inc. v.
associated with them in this civil action are
234,
contrary
litigation
1975),
Young,
applicable
to rules
conduct of
parties’
silencing
before this
court held that an order
Court and inconsistent
“relatives,
obligations
parties
with the
close
of
and their
friends and associates”
just
impermissibly vague
counsel to further
of
and overbroad. To
determination
jurisdiction,
matters within its
it is this 14th
extent
the order here raised doubts
day
1977,
“researchers,”
February,
plaintiffs’
minds of the
ants,”
“consult-
ORDERED that documents and informa-
whether the order
or “associates” as to
them,
impermissible
during
applied
chilling
tion furnished
the course of
it too had an
not,
persons
parties
in this civil action shall
than the
unless made
effect
other
part
open
herein,
of the
Court record
be the
and their counsel.
Stuart,
539, 559,
2791,
96 S.Ct.
public
U.S.
publication of information of
forbid
record,
2803,
(1976).
acquired
or information
outside
49 L.Ed.2d
only publication of
processes, but
court’s
restraint,”
“prior
at com
The term
information obtained in dis-
documents and
law,
system
to a
of unreview
mon
referred
relatively
covery. Even if the order is
nar-
censorship or licensi
able administrative
row, however,
petitioners from
it restrains
concept
But
has not been so
ng.13
impor-
communicating
matters of
beginning
long
In a
line of cases
confined.
As
period
tance for an indefinite
of time.11
Minnesota,
697, 51
such,
with Near v.
283 U.S.
governmental
it constitutes direct
ac-
625,
Supreme
limiting speech
carefully
the
authority
an admin-
of
to
many delegations
time,
equally clear that such an
it is
same
advance,
judge
expression
censorship
pro-
the
with
clear his
scheme
15. An administrative
proving
sys-
expression
speaker
protection
the burden of
for
than a
the
bears
less
vides
per-
subsequent punishment
expression
v.
because it
See Near
the
is inoffensive.
tem of
that
625;
imposed
712-13,
Minnesota,
for failure to
to be
cf.
mits sanctions
51 S.Ct.
283 U.S.
approval, regardless
58,
51,
the
Maryland,
the censor’s
obtain
380 U.S.
Freedman v.
may
Expression
expression.
be
734,
the
(1965) (to
nature of
punished
avoid con
L.Ed.2d 649
S.Ct.
censorship
upon proof
a
scheme
infirmity
burden of
must bear
stitutional
showing
censor
prior approval.
failure to obtain
one fact —the
unprotected.)
the
Where
that film is
speaker
ignore
thus cannot
A would-be
censor,
course,
law,
restriction is
criminal
to defend his
he will be unable
for later
speech
prove
burden is on the state to
posed
ground
expression
dan-
no
Chicago
danger.
pose
great
did in fact
a
ger
the censor could not have
and therefore
242,
Bauer,
Lawyers
F.2d
v.
Council of
suppressed
with the First Amend-
it consistent
denied,
(7th
1975),
U.S.
248-49
cert.
Hampshire, 345 U.S.
ment. See Poulos v. New
395,
912,
3201,
(1976), the
185
prior
as
re-
censor,16
previously
tiers
condemned
the same threat
to
istrative
nor
by
judicial or-
straints.17
expression generated
other
Co.,
2553, 2561, 37
390,
16. Administrative
censorship
(upholding
as those under Rule
669
restriction where “or-
differ
from orders
such
L.Ed.2d
26(c)
continuing
their
become effec
because
a
course of
proscriptions
der is based on
repeti-
judicial
proceeding
to a
to
tive prior
adversary
conduct,”
as to
tive
court needn’t
“speculate
determine,
merits,
on
publication”); Kingsley
constitutionality
Books, 354
of
the effect
A
of Books
restraint.
(scheme
Compare
Quantity
445,
1325,
77
1330
U.S. at
1723, 12
Kansas,
205, 210,
v.
378 U.S.
84 S.Ct.
enjoining
books “studi-
distribution
of obscene
(1964)
809
and Marcus v. Search War
L.Ed.2d
matters not al-
withholds
restraint upon
ously
rant,
717,
38,
1708,
U.S.
734
81 S.Ct.
6
367
published”).
ready
(seizure
(1961)
allegedly
L.Ed.2d 1127
of
ob
fact
that
the court could review specific
The
scene
determination
of
books before adversary
injunction
entering
an
documents
before
impermissible)
Kingsley
their obscenity
v.
led one com-
York Times
United States
New
Books,
Brown,
436, 443,
Inc. v.
77
354 U.S.
whether,
those cir-
under
mentator
question
(1957) (determina
1325,
We do
in the end
interests.
proper
tigants’
of this case
First Amendment
resolution
other
-
a
on whether this order can be termed
206 of
U.S.App.D.C.,
turns
Id. at
of 194
prior
We observe the admonition
restraint.
with this bifur-
agree
cannot
F.2d. We
598
“prior
that
Frankfurter
the term
of Justice
Amendment’s
approach to the First
cated
not be used as “a talis
restraint” should
protection
speech.
test,”
Books,
Brown,
Kingsley
Inc. v.
manie
441,
436,
(1957),
77
1325
S.Ct.
Interests of Liti-
B. The First Amendment
examination with an al
begin
do not
our
Lawyers
gants and
presumption against
most insurmountable
However,
validity
of this order.
in Lit-
Amendment Interest
1. The First
poses many
fact that the order
of the dan
the Administration
igation and
gers
prior restraint
is sufficient
of a
Justice
require
scrutiny
impact
pro
of its
close
correctly point out
Defendants
expression.
tected First Amendment
historically
‘offi
been
attorneys
that
“have
dispute
that
The dissent does
”
Virginia
courts[,]’ Goldfarb
cers of the
many
order has
of the characteristics of
2004,
773, 792,
Bar,
95
State
U.S.
restraint,”
“prior
but contends that
there
they
and that
are,
effect,
prior
types
two different
responsibility to
legal
have a
and ethical
restraints,
“solely directed at informa-
one
But
a fair trial.18
safeguard
right
discovery”
tion and documents obtained
the fair
lawyers’ responsibility
protect
covering
and a
all other orders re-
second
judicial
not mean
process
ness of the
does
stricting expression. Dissent
at-of
lawyers
litigants
that
surrender
at 204 of 598 F.2d. Re-
U.S.App.D.C.,
rights
First Amendment
at the courthouse
straining
orders directed at
mate-
spe
who have
door. Even
officials
subject
stringent scrutiny
rials
to less
nec
the court do not
responsibilities
cial
orders,
restraining
according
than
other
severely curtailed”
essarily have a “more
dissent,
because
First Amend-
“[t]he
expression than “the
right
to freedom of
litigants
promulga-
ment
interests of
Georgia,
average citizen.” Wood
par-
tion of materials exacted from another
ty
8 L.Ed.2d
through
compulsory processes
of the U.S.
82 S.Ct.
(1962).19
courts are much more limited and of a
Wood,
treating
injunction by
Supreme
tant
In
reversed the
reason for
Court
contempt
deputy
of a
sheriff who
conviction
standard different
than for a criminal statute
publicly
pending grand
had been
critical of a
congressional
was the absence of
authorization
accept
jury proceeding. The
did not
Court
injunctive
relief. See also id. at
that,
deputy
had
because the
sheriff
J.,
contention
(Stewart,
concurring);
S.Ct. 2140
at 731-
id.
court,
special responsibility
he there-
to the
J.,
(White,
concurring);
information
See
processes.
the court’s
another
use of
Zerbst,
son
Rodgers
Unit
L.Ed. 1461
at 407.
Id.
n. 14.
Corp.,
F.2d at 1007
ed
States Steel
say
parties
passage does not
This
forego any
agreed
never
Plaintiffs here
rights
in dis-
Amendment
have no First
claim related to
First Amendment
most,
covery materials. At
it establishes
com
do we find clear and
materials. Nor
order,
properly
that a
drawn
waiver of
implied
of an
pelling evidence
showing
good
supported
proper
system rights in the
Amendment
First
cause,
Amend-
compatible
with the First
above,
pre
discovery. As noted
civil
interpretation of
Significantly,
ment.25
discovery rules is that
sumption under the
recently adopted in a case
Koons has been
anything it wants with dis
party may do
First
expressly holding that a
has
material,
covery
absent
rights in information obtained
good cause shown.”
Fed.R.
entered “for
tliscovery process. Reliance Insur-
26(c).
Civ.P.
Barron's,
F.Supp.
ance
Co.
(S.D.N.Y.1977).
Romney,
Davis v.
See
*13
Furthermore,
assuming
arguendo
that
(E.D.Pa.1972).
55 F.R.D.
344-45
publicly
parties implicitly agree not to
dis-
information obtained
close
the
If Koons does stand for
a waiver of
process,
this does not establish
parties in
proposition that
the
a civil action
Even where indi-
rights.
Amendment
First
rights In dis
waive all First Amendment
express agree-
have entered into
materials,
sug
viduals
covery
Rodgers
as the
court
information,
dicta,26
to disclose certain
wrong. ments not
gested in
then we think it is
Crosby v.
agreement,
consent
rights
of First Amendment
are to
either
Waivers
Again,
that a
establishes
Id. at 249.
this only
25. The court
also
a
portion
approved
sealing
may
limited
order
all
defend-
properly
order
affidavits submitted by
showing
stating,
motions,
of cause.
obtained
a
upon
proper
ants on various
juris-
we have no
as to
court’s
question
Rodgers
to deter-
court had no occasion
26. The
do
under the inherent
diction to
“equita-
to
the constitutional
standards
applicable
mine
of courts of law over their own
ble powers
limiting
of in-
dissemination
orders
protective
abuses,
oppression,
process,
prevent
through
sim-
discovery,
obtained
formation
injustices,”
or as to the
[citations],
propriety
or-
of such
constitutionality
assumed
ply
of the exercise of discretion here.
argument:
for the
purpose
ders
Id. at 407-08.
that we need
outset, we emphasize
At the
Powell,
reliance on Dellums v.
Defendants’
a
and do not consider here whether
pro-
not
cert. de
U.S.App.D.C.
or their
tective order which prohibits parties
L.Ed.2d 160
nied, 434 U.S.
98 S.Ct.
disclosing
or mat-
counsel
information
(1977),
we af
There
similarly misplaced.
the dis-
obtained
as a result of
solely
ters
firmed the district
court’s
denial of
former
subject
First
is ever
covery process
President Nixon’s motion to
a
quash
subpoena
against
the estab-
Amendment’s
prohibitions
seeking
of White
duces
tecum
transcripts
abridge
laws
that
freedom
lishment
House conversations
in connection with a civil
speech.
damages
alleged
of con
action for
violation
Rodgers
F.2d
v. United States Steel Corp.,
rights.
noted, however,
stitutional
We
that our
at 1006.
prejudice
re
any
affirmance was without
Rodgers
Significantly,
held that
court
President
for a
the former
quest by
restricting
counsel’s
order
district
court’s
requiring
restraint,
see,
pp.
constituted
prior
speech
documents
are disclosed
before any
187 of
of 194
proceeding
U.S.App.D.C.,
p.
or record there would be
public
mandamus
F.2d,
a writ of
and that
supra,
Nixon,
Mr.
an
due and
notice to
ample
con-
“to
would
to vacate
issue
litigate
of need for
opportunity
issue
of its
sphere
proper
fine
district
to.
disclosure,
on a determination
to be
Rodgers
light
litigating
1006. See Section
the actual
lawful power.”
made
pos-
IV,
ture of the case and the
of the docu-
infra.
contents
ment(s).
Co.,
(2d Cir.),
1. Nature of in' facts all material airing of full and fair semination forth- parties are to be If controversy.38 requests ad- for dis- have been Widely varying coming responding interests orders, restraining support have fair assurance covery, they vanced must security infor- national protection of will countervailing from interests legitimate mation, Corp. Products see International or- by a necessary if protected, 1963), Koons, (2d pres- Cir. 325 F.2d der. information, Rodgers privileged ervation of protecting the can be no There doubt.that Corp., 536 F.2d Steel United States judicial process is a substan- fairness of (3d 1976), of trade se- to maintenance the mainte- interest, central to for it is tial Zletz, crets, Natta v. Accordingly, courts liberty. nance will weight of these interests the ad- protect valued the need always vary case. from case to “abuses, op- justice from ministration a mechanism for ac- Rule 26 establishes Pitkin, injustice.” Gumbel pression and commodating the interest in “[m]utual 131, 144, 31 L.Ed. gath- knowledge of all the relevant facts to conduct right of courts “[T]he Taylor, parties,” Hickman v. ered both way lies in an untrammeled their business 385, 392, 91 L.Ed. U.S. govern- system of the foundation of our countervailing inter- with these Georgia, 370 . Wood v. ment requires general ests. The Rule disclosure at 1369. subject of information “relevant protective or for a When asked action,” pending matter involved trial, the fair right to a der based on 26(b), Fed.R.Civ.P. unless strength of trial court should assess protec- sought obtains a whom following factors: according interest competing inter- tive order to shield some Although (a) trial. versus criminal 26(c). that this mech- Civil est. Id. at To insure is fundamental right to a fair trial properly, anism the trial court functions philoso- very 26(c), supra specifically limited. Under trial were phy note Fed.R.Civ.P. orders, including judicial proceeding contemplates restraining was a battle or- that a truth, each for the ders wits rather than a search against protected large to a extent side was (5) be conducted with no one of his case. disclosure present except persons designated purposes the lib- [of . Some of these court; (6) deposition being that a after sealed *16 surprise discovery avoid court; are to rules] eral only by (7) opened can be order of the justice, miscarriage possible to of the and that a trade secret or other confidential re- scope fully of the search, nature and disclose development, or commercial informa- narrow, simplify, controversy, frame only and to in a tion not or be disclosed be disclosed involved, party to designated way enable a issues and to . prepare for information needed to obtain the Miller, See, g., Wright 38. Prac- e. 8 and Federal put way sought end to In this it was trial. 14, tice 17-19. and Procedure 2001 at § by theory justice,” “sporting which of should remembered that under the [I]t be depends availabil- on the fortuitous the result ity by prior [discovery] procedure the means strategy of and the skill of evidence or parties which and could narrow the issues counsel. prepare for discover information needed to 193 trial, Lawyers Chicago bench see Council of litigation,39 both civil and criminal there are Bauer, important distinctions between two in v. F.2d at it is 522 entitled greater been jury this context. where a trial weight has demanded. [Although prime a rightfully place we providing impartial system
value on
i.
of
justice
of
disputes,
require
to settle civil
we
2. Precision
the Restriction
greater
pos-
insularity against
even a
“good
pro
a
To establish
cause” for
sibility of interference
in
with fairness
26(c),
courts
tective
under Rule
“[t]he
symboli-
Perhaps
criminal cases.
this is
specific
particular
have insisted on a
and
cally reflected in the Sixth Amendment’s
fact,
distinguished
demonstration
as
requirement
jury”
of an
“impartial
stereotyped
state
conclusory
”
criminal
cases whereas
the Seventh
Miller,
.
Fed-
Wright
ments.
8
&
guarantees only
by
“trial
and Procedure
at 265
eral Practice
2035
§
jury”
civil
cases.
(1970).41
requirement
This
is constitutional-
Bauer,
Chicago
Lawyers
Council of
522
v.
ly
when
ex-
mandated
the order restricts
242,
(7th
1975),
F.2d
257-58
cert. de
Robson,
pression,
v.
see
Chase
nied,
912,
3201,
96
49 L.Ed.2d
S.Ct.
1061,
that
to assure
the order is no broader
(1976).40
1204
absolutely necessary
protect
than
(b)
trial
jury
countervailing
Bench
versus
trial. The
interest. An order restrain-
principal
pretrial
concern about
publicity
ing speech cannot be based on a record
prejudice
lay jury.
speculation
that it will
It is true
naked
reveals
too,
judges,
might
are
v.
trial
right
jeopardized.
human. Cox Louisi-
to a fair
n Nebraska Press
536,
Ass’n,
569,
ana,
453,
13
427
96
U.S.
Thus,
judges
determining
But
whether
life-tenured
S.Ct. 2791.
fortitude,
restraining
“supposed
“good
to be men of
able
exists to issue a
cause”
hardy
Craig
in a
and to
thrive
climate.”
v. order limited
material
367, 376,
Harney,
parties,
331
must
lawyers
U.S.
the trial court
Little,
specific
194
in
in
circumstances,
permitted
participate
such
a
should be
Except
unusual
judge
will
camera
26(c)
proceedings, so that
can
protective order issued under Rule
presenta-
of adversarial
infirmities
have the benefit
many
be
to avoid
tailored
therefore have no
judicial
ex
The court should
with
restraints
on
tion.43
associated
drafting
covering
order
pression.
party
difficulty
dis
a narrow
against
If the
whom
materials
that
covery
sought
timely
only specifically
makes
motion for
identified
a
order,
proscribed
with
First
may
a
can examine
consistent
protective
judicial
short, when
re-
In
information
Amendment.
the relevant documents or
involved,
camera before
discovery
a re
straints on
materials
determining
whether
Kerr v.
for the court
be no need
issue. See
straining
should
there should
order
orders,
Court,
394,
spec-
or to
District
United States
vague
426
issue
or overbroad
U.S.
404-06,
2119,
(1976).
speaker] will
“in advance what
96
ulate
S.Ct.
[the
v.
Promotions Ltd.
cases,
Southeastern
say.”
appropriate
opposing
counsel
26(c).
Martin,
F.Supp. 1182,
(D.S.C.),
fy
aff’d
under Rule
Dis-
v.
431
1188
all restrictive orders
(4th
qualifications,
discovery
categories
with
706
Cir.
556 F.2d
of
of
semination
documents,
different
749,
denied,
1022,
1977),
434
conjunction
types
cert.
U.S.
with different
(1978); Hirschkop
ble likelihood”
insufficient
standard
express
opinion
no
issue at this
We
interests,
protection for the First Amendment
time, preferring
permit trial courts to
instead to
required
and have
and imminent
“serious
general
develop greater experience
under
restricting
threat” of harm before
comment
today.
opinion
set
our
standards
Nevertheless,
forth in
lawyers
parties.
g., Chicago
and
Council
See e.
allega-
mere
we
stress
Oliver,
Lawyers,
249;
522 F.2d at
In re
452
conjectural
is insufficient meet
tion of
harm
111,
(7th
1971);
F.2d
114
v.
see also C.B.S.
moving party’s
burden.
234,
1975) (“clear
Young,
522 F.2d
238
recently
present danger”).
parte
ABA
re-
infirmities
with ex
or-
43. The
associated
extra-judi-
proscribing
Carroll,
183-85,
ders,
vised its standards
89
at
S.Ct.
see
8-1.1)
by attorneys (Standard
cial statements
347,
issuing protective
strongly
against
militate
prohibit only
pose
those
statements
parties.
participation
both
without
orders
trial.
“serious and imminent threat” to a fair
participation by
There should
no barriers
The ABA concluded
“the reasonable likeli-
sides,
where,
particularly
both
counsel for
here,
protec-
provide
hood test is too relaxed to
full
parties already
the materials in
both
to the first
interests of attor-
tion
amendment
per-
possession.
parties have been
Both
neys.” ABA
Trial and Free
Standards —Fair
participate
proceedings
camera
mitted to
in in
(1978).
(2d
draft)
Press
Tentative
ed.
3
See,
g.. United States v.
in other contexts.
e.
however,
recognize,
prejudice to a
We
Nixon,
3090,
41
n.
danger posed
fair trial is not the
unfet-
Corp.
(1974);
Black v. Sheraton
L.Ed.2d
discovery
In-
tered dissemination
materials.
America,
46, 59-60,
U.S.App.D.C.
evitably,
possibility
will
of dissemination
Powell,
v.
544-45
Dellums
F.2d
degree)
(to
judges’ willingness to
lessen
some
v.
F.2d at 251.
United States American
Cf.
discovery,
willing
inhibit
com-
liberal
Co.,
U.S.App.
Telephone
Telegraph
pliance
requests.
maximize
with
To
133-
D.C.
nothing
require
the full flow of
would
prohibition
short of a blanket
on disclosure.
deeply
clearly
pursuant
Yet suth a rule would
cut too
to Rule
Since
orders
freedoms, and would
prior
into First Amendment
26(c)
dangers
pose
to other
re-
similar
26(c)’s requirement
meaningless
render
Rule
straints, they
without the
should not be entered
“good cause.”
designed
necessary “procedural safeguards
case,
disposition
we
In view of our
of this
censorship system.”
dangers
obviate the
among
competing stan-
need not choose
Maryland,
U.S. at
Freedman
734, 739,
today
restrict-
dards. We decide
that an order
means,
This
(a) change of trial
place
venue to a
sufficiently
pre
less
er an order is
narrow and
exposed to
publicity
intense
accomplish
goal
cise to
with the
desired
Although
Supreme
Koons,
407-08;
Rodgers,
Court has never
325 F.2d at
squarely
issue,
sug-
(dicta),
addressed the
its decisions
at 1006
constitu-
have struck down on
gest
restricting
by par-
that orders
comments
grounds
gathered
tional
restraints on material
attorneys
ties and
are a less drastic alternative
discovery process.
outside the
See Koons at
gagging
See,
press.
g„ Sheppard
e.
408-09, Rodgers at 1006-1008.
Maxwell,
359, 361-62, 363,
Finally, showing, agreeable usages principles the defendants made no nor the any finding, potential law.55 presence justifica- might
51. “Even in the
of sufficient
media.
mind,
The district court
have had
curtailing
course,
tion for
terances,
possible
certain
impaneling
first amendment ut-
of an
narrowly
an order must be drawn
advisory jury
39(c).
so
under Fed.R.Civ.P.
But
prohibit speech
as not to
effect,
will not have
findings
the court made no
to that
nor
justice
an effect on the fair administration of
assay any
less drastic
did
conclusions about
along
speech
which will have such an
preserving
possible jury
means
this
from the
.of
Robson,
1059,
effect.” Chase v.
435 F.2d
1961
prejudicial publicity.
effects of
See Nebraska
(7th
CBS,
1970).
Young,
Cir.
Accord
Inc. v.
Ass'n,
Press
(en cert. against the CIA started onslaught (1974).61 L.Ed.2d 688 reporter investigative when an late 1974 newspaper charged in a series a national
V.
in a
agency
engaged
had
articles
In
practice,
accordance with our usual
we
illegal
intelligence opera-
“massive
domestic
will not
issue the writ at
this time.
In-
In
in direct violation of its charter.1
tion”
stead,
copy
opin-
we will transmit a
of this
followed,
attention
the months that
media
permit
ion to the district court
further
alleged
with an
riveted on
CIA lawlessness
proceedings
light
of the discussion here-
only by
intensity matched in recent
times
in.62 Defendants
are free to seek a new
This
present
coverage
Watergate
order if
are able
scandals.2
See,
Zweibon,
Holder,
Schlagenhauf
U.S.App.D.C.
e.
In
62. See
re
g.,
Gasch,
(1964);
(1977);
L.Ed.2d 152
re
565 F.2d
Relf v.
States,
(1st
1965);
U.S.App.D.C.
United
and what it which its activities and the small extent we swers to source. the victim of what we in the former who an- past years journalist’s description in his proper overstepped journalist come close to or even I fear that the has been certainly intelligence bounds. We nothing improper make no claim that occurred, but we do think trade call a fabricator. important CIA, given published allegation that such incidents be Another was that proper proportion. through Agency-owned corporate structures useful, Chairman, perhaps provide organized apparent sponsorship It would Mr. by reviewing allegations operations, manages “$200- start some of the for its overseas recently million-a-year top-secret corporate empire” made about the CIA. that, leading charge Congress. in vio- direct could circumvent the will of charter, allegation lation of its sive against CIA conducted “mas- This is also false. CIA does main- illegal intelligence operation” corporate support domestic tain certain are essential to structures that conducting operations the anti-Vietnam war and other dissi- its years. my concealing dent mony in elements recent testi- CIA’srole overseas. These activi- however, Appropriations managed, to the Senate and Arm- ties are in the most me- Committees, ed Services on 15 and 16 Janu- ticulous manner CIA to ensure the safe- ary, flatly investment, allegation. pointed keeping I denied this I of the Government’s they out that CIA instead had conducted a coun- to audit these activities to ensure that terintelligence operation possible stay proper directed at within bounds. foreign dissidents, give links to American under One individual continues to national authority Security prominence allegation of the National Act to an that CIA was Security Watergate the National Council Intelli- somehow cover-up ly. charge in more involved and its gence govern public- Directives which its activities than has been demonstrated response credibility and in this to Presidential concern over His lack of should cause the possibility. operation weight, Thus this was nei- fall in of its own but addi- massive, domestic, illegal, alleged. investigations particular ther nor tion I believe the extensive allegations subject, The same stated that “dozens made into this tapes and in activities,” illegal released, including recently of other break- most indicate that ins, tapping, surreptitious inspec- certainly wire in CIA’slimited assistance had mail, nothing Watergate tion of were undertaken members of with the do beginning the CIA in the United States and that that said CIA was institution Again reported Ap- cover-up 1950’s. I to the Senate “No” to the in it. rather than involved propriations and Armed Services Committees a few allegations such activities that fact occurred. I There are also a number of pointed improper police relationships out that most such actions were tak- CIA with domestic general charge en under the of the National forces. The facts main- are CIA Security friendly relationships Act on the Director of Central Intel- tained liaison with a ligence protect intelligence police sources and number of forces for assistance in against investigating applicants, methods unauthorized disclosure. CIA’s mission of contractors, its appropriate, Whether or not were there and similar contacts. These re- very lationships few institutions in or out of Govern- vari- time to time included *24 27-year history ment which in a do not on ous mutual courtesies which have been misstep, warped allegations improper occasion -make a but in CIA’s case into of CIA ma- nipulation purposes. police such instances were few and far between and of these forces for domestic quite exceptional allegations to the main thrust of its These are false. Since legislation barring any efforts. the 1973 CIA assist- allegation given prominence Another ance to the Law Enforcement Assistance Ad- apparently ministration, any based on the an statements of CIA has terminated assist- anonymous that, compliance source who claimed while ance to LEAA in and with the employed by spirit particular inCIA New York in the late as well as the letter of that 70s, early agents any 60s and “he and other CIA law has terminated assistance to local participated telephone wiretaps police had also forces as well. charges and break-ins” in the New York area. As I For a made detailed rebuttal of certain journalist media, story Colby’s testimony told the was involved before the in the Senate ary before see DCI printed, Committee, any Appropriations it does not bear relation to 15Janu- CIA’s actual activities in that area. Nor can vacating Dis- majority decision petitioners that this climate was in rests on three protective order present trict Court’s against various brought their suit is that proposition The first propositions. of the CIA and other employees and former restraint prior order is a the District Court’s seeking monetary dam- agencies, federal First which expression violates on of million violation ages $1 in excess a it on because was not based rights.3 statutory constitutional their and dis- finding petitioner’s that respon- specific factual discovery, early stages In the posed a and serious in- closures would petitioners’ counsel dents learned to the administration imminent threat press conferences stage a series of tended public justice. selectively make at which would they had obtain-
portions of CIA documents
respon-
is that
proposition
The second
accompany
would
these
ed in
showing
satisfactory
a
to make
dents failed
interpretations
with
docu-
disclosures
as
protective
“good cause” for
commentary
signifi-
on their
ments
26(c)
Rules
of the Federal
required by Rule
press conferences were to
cance. These
hence the Dis-
Procedure and that
of Civil
organizations
of two
held on the behalf
issuing
its discretion
trict Court abused
parties
litigation, the
which were'not
to the
the order.
Liberties Union and the
American Civil
issuance of
proposition
The third
Study. At
Security
for National
Center
a clear abuse of discre-
the order was such
protec-
point,
respondents sought
this
Not one of
mandamus.
tion as warrant
prohibiting petitioners
tive
and their
is sustainable
propositions
the three
staging
press
these
confer-
counsel from
from the
divorced
precedent or on reason
They argued
proposed
ex-
ences.
passion of the moment.
tra-judicial
agency
use of the
documents
prejudice
right
“adjudication
would
AMENDMENT
I. THE FIRST
of the
.
.
in an uncolored and
issues
assault on the
majority views as an
Moreover, they pointed
unbiased climate”.4
protective order issued
Rights
Bill of
proposed
petitioners’
out that
use of the
discretionary ad-
in its
the District Court
material
Rules
discovered
violated
Local
discovery pursuant
pre-trial
ministration of
Disciplinary
of the District Court and the
Procedure.
the Federal Rules of Civil
Responsi-
Rules of the Code of Professional
claim is unwarranted
This constitutional
bility
prohibit extra-judicial
state-
cites,
is incom-
any
the cases which it
ments,
quotation
than
from or refer-
other
it has unsuc-
patible with some cases which
records,
public
ence to
if there
ais
reasona-
cessfully attempted
distinguish.
ble
would
likelihood
such dissemination
deal,
in Near v.
not in
case
as
interfere with a fair trial.5 The district
We do
Times Co. v.
judge granted
or in New York
order.
Minnesota6
lawyer
Newspaper publications by
Supplemental Appendix
at 18-33.
pending
anticipated litigation
inter-
(J.A.)
Appendix
4. Joint
at 24.
other-
fair trial in the Courts and
fere
jus-
prejudice
wise
the due administration
l-27(d)
5. Local
Rule
of the Local Rules
Generally they
If
condemned.
tice.
are to be
District Court of the District of Columbia ex-
pressly prohibits
particular
of a
the extreme circumstances
attorney
public,
justify
it is
case
statement
participating]
making
an extra-
anonymously.
unprofessional
An
to make it
judicial
regarding
statement
evidence
[about
go
parte
should not
reference to the facts
ex
involved],
quota-
the occurrence
other than a
pa-
beyond quotation
from the records
tion from or reference to
records .
court;
pers
in extreme
but even
on file
if there is a
likelihood that such
reasonable
parte state-
better to avoid
ex
cases
dissemination will interfere with a fair trial.
ment.
*25
addition,
the
District
Columbia Court
75 L.Ed.
6. 283 U.S.
Appeals
Disciplinary
recently
has
amended the
(1931).
Responsibili-
Rules of the Code of Professional
ty,
DR7-107(G)
(H).
sections
The amend-
ment reads:
States,7
injunction
26(c)],
with an
Rule
and we
seeking
United
entertain no doubt as
speech
judicial
constitutionality
to the
pro-
allowing
to restrain
unrelated to
rule
ceedings.
publicizing,
a federal court
forbid the
trial,
advance of
information obtain-
confront,
Pennekamp
Nor do we
as in
by
by
ed
one
from another
use of
Craig Harney,9
attempt
or in
Florida
processes.
the court’s
Whether or not the
extra-judicial
to punish or stifle
criticism of
Rule
so much
itself authorizes
of the or-
pending
court’s treatment of a case
before
der as
all
also seals
affidavits submitted
it.
motions,
by
various
we
defendants on
face,
Nor do we even
as in Nebraska
question
juris-
have no
as to the court’s
Press Ass’n v. Stuart10 or in Chase v. Rob-
‘eq-
diction to do this under the inherent
son,11
heavily
upon by
majori-
so
relied
the
powers
uitable
their
of courts of law over
comment,
ty, an effort
any
to limit
whatev-
abuses,
process,
prevent
oppres-
own
er
provenance, concerning pend-
its basis or
sion,
Pitkin,
injustices,’
Gumbel v.
ing litigation
phase
or a
thereof.
fendants
part
This
memorandum.
rights
dis-
tained” in the
ing
First Amendment
their
First
repugnant
to the
information
of
order
documents and
close such
....
to the Constitution
restraint.
governmental
free of
omitted).
(citations
more recent
effect is the
To the same
and,
Thus, Koons,
inferentially,
Rodgers
Rodgers,
the Third Circuit
decision of
between,;
There, too, the
Corp.15
recognize a distinction
Parker all
United States Steel
against
hand, restraining
at
orders
constitutional
on the one
court sustained
prohibit
kinds of
other
iting
order insofar as
barred
of
tack a
communication
hand,
information, and,
protec-
extra-judicial
of material it
use
on the other
¿party’s
through compulsory
at information
solely
had obtained
tive orders
directed
pro
But it
down another
obtained
processes.
struck
and documents
attempted
processes.
to limit
through
the order which
the court’s own
vision of
Although
is a form
party’s use
related information oth
each
distinction is this:
restraint,”
per-
possession.
erwise in its
the constitutional
“prior
is determined
missibility of the first order
analogous
present-
was also
An
situation
rigorous “clear-and-
by application of a
Broadcasting Sys-
ed in Parker v. Columbia
standard, whereas the
type
present-danger”
tem,16
plaintiff
suit in which
stockholder’s
latter or-
permissibility of the
constitutional
appealed
restraining her
from an order
stan-
stringent
less
governed by
der
publishing
disseminating an un-
from
or
discovery laws.
dards embodied
her-
plaintiff
sworn “memorandum” which
support
ap
type
self had filed with the court in
of order
Examples of the first
Stuart,
judgment
pleadings.
her motion for
Press Ass’n
pear in Nebraska
CBS,
allegations
Robson,
Young.18
The document contained
Inc.
Chase v.
prohibit
fraud and misconduct
defendants and
Press Ass’n
The order Nebraska
their counsel. The district court’s restrain-
the existence or
press
reporting
from
ed the
ing
prohibited plaintiff
from
informa
also
or other
any
nature of
confessions
“communicating
any person
entity
with
accused
implicative” of an
“strongly
tion
respect”
Chase,
“any
restraining
with
of the matters con-
murderer.
attorneys
upheld
tained therein.” The
prohibited
Second Circuit
defendants and
against
por-
challenge
constitutional
con
making any
statements
from
witnesses,
promulga-
evi
tion of the order that restrained
cerning
jury,
dence, merits,
rulings
tion of the document itself:17
in a
and the court
or
pending criminal case.
enjoins appellant
Insofar as the order
counsel,
CBS,
prohibited
der in
Inc.
any way publishing,
from
disseminat-
“in
relatives,
parties, and their
ing, publicizing
promulgat- personnel, the
or otherwise
friends,
“discussing in
from
any
entity
any
all or
and associates
person
document,”
that,
cases with
portion
we hold
manner whatsoever these
document,
These and
in view the nature of the
the news media.”
members of
properly
rigorous
under the
standard
order was
issued
similar cases articulate a
re
“equitable powers
permissibility
inherent
of courts of
determining
process,
prevent
they
law over their
hold that
type;
own
straining orders of
abuses,
(cita-
injustice.”
oppression,
only upon
permissible
are
such orders
omitted).
tions
necessary to
showing
clear
imminent harm
However,
prevent a serious and
enjoins appel-
the order also
justice.19
any per-
lant
fair administration
communicating
1975).
(3rd
1976).
18.
205 had; discovery (2) (1) that not be strict standard Three features of this only on discovery may be had (1) insistence on an have been stressed: conditions, including specified terms and probability bordering on exceedingly high — . (3) place; designation the time or a predicted will ma- certainty the harm —that only by had discovery may that the be restraint;20 prior terialize unless there is a that se- discovery other than method of (2) predicted harm be insistence that (4) seeking discovery; party lected irreparable and that com- serious and into, inquired not be that certain matters substantial, at peting interests at stake be discovery scope of the be or that approaching dignity the First least matters; (5) that dis- limited to certain sought cur- interests Amendment present with no one covery be conducted 21 tailed; (3) the courts insistence court; designated by the except persons findings specific factual make formal and being (6) deposition after sealed that a de- findings and articulate in some these court; (7) opened only by order of tail.22 confidential that a trade secret or other type— Protective orders of the second research, in- commercial development, or is, solely at the orders that are directed or be disclosed formation not be disclosed protection and docu- control discovered (8) way; designated in a “prior re- ments —also constitute a form of simultaneously specified file docu- parties However, applied straint.” standard in sealed or information enclosed ments type determining permissibility of this by the envelopes opened as directed to be rigorous of order is not the standard set court. Chase, Ass’n, in the
forth
Nebraska Press
is
protective
for a
If the motion
CBS,
Rather,
applicable
Inc.
cases.
may,
part,
in whole or in
denied
26(c)
standard is to be found in Rule
just,
conditions as
on such terms and
pro-
provide
or
person
Federal Rules of Civil Procedure
any party
order that
or
Rule
permit discovery.
provisions
vides:
37(a)(4)
expenses
apply to the award
(c)
Upon
motion
Protective Orders.
the motion.
incurred in relation to
party
person
or
from whom
meets
long
protective
As
as a
good
ortjer
cause
sought,
is
and for
embodied
“good
shown” standard
shown,
cause
the court in which the action
26(c),
abridges
no First
Rule
pending
alternatively,
re-
or
on matters
an order
extent
that such
rights;
lating
deposition,
to a
the court
restraint,”
a restraint
“prior
such
works a
deposition is to be tak-
district where the
Amendment.
permissible under the First
justice
en
make
order which
requires
protect
person
Rule
language
It is evident from the
embarrassment,
case,
annoyance,
oppression,
26(c),
and from
from the Koons
protective
undue
or-
expense, including
burden or
one
the numerous
distillation of
26(c), that the
following:
arising under Rule
or more of the
der cases
States,
J.,
2791;
(Powell,
403
at
v. United
id. at
York Times Co.
It is ac- action which sometimes governmental may require circumstances kept not be litigation should companies civil discovery the kinds of limitations on course, this material public.35 Of from the may be limitations that needed. press wish to hold petitioners which rules, instead, scope permit the broadest will be made conference now —at enlight- it to the discovery and leave which has been discov- matter trial. Even of the district court ened discretion ered, deemed rele- may not be but necessary restrictions decide what trial, fully can later be vant to issues particular case.33 discussed, I understand the disclosed the framework of Within order. the trial court’s purpose and tenor of laws, then, rights whatever it is clear that speech is involved suppression of free No that it has party in the materials may have case; orderly is the what is at issue party another exacted from trial judicial process by the control of properly imposed by qualified by conditions judge.36 26(c). Rule its discretion under the court in anomaly striking This is illustrated of First Amendment There is no “waiver” logic which majority opinion’s it; it is rights, majority tries to term as the explain. It is adequately majority does not the court’s simply party uses when have a plaintiffs do not “that conceded may be unfair to process in a manner which infor- of access to right First Amendment the other and is unrelated members generally available to mation not *30 discovery, litigation purpose of the court Procunier, 417 U.S. public. Pell v. of the power responsibility has and to take the L.Ed.2d 495 necessary protect its whatever action is to Rusk, (1974); Zemel abuse, process protective and see also products requiring litigant to use the Inc., Communications, v. Warner Nixon discovery with the in a manner consistent [1318], 55 purposes discovery permissible “prior is a (1978).” Rule of Civ- Federal : set district 26(c)(1) restraint” if it meets the standards allows the il Procedure ' if 26(c).34 prevent discovery altogether, forth in Rule court to imposed Miller, Congress, having Wright
33. 8
and Pro-
It
is clear
that
&
Federal Practice
burdens,
magnitude.
(1st
1970).
If
those
can define
cedure:
at 267-68
ed.
§
Civil
pro-
Congress
to
it would be constitutional
extra-judicial
completely
of dis-
hibit
the
use
discovery
Congress
adopted
34.
could have
laws
materials,
covery
it
then
is constitutional
completely
extra-judicial
prohibited
that
the
Congress
modest
those burdens
define
materials,
discovery
use and dissemination of
exacting and absolute than those
terms —less
statutory
and such a
limitation would undoubt-
by
majority.
urged
the
edly have been constitutional. At
the other
by
majority,
“The
Thus the statement
the
extreme, Congress
adopted
could have
dis-
discovery
place
limitations
Rules themselves
no
covery
laws that mandated the
dissemi-
party may
obtain-
what a
do with materials
on
(unless
discovery
nation of
materials
dissemi-
-
discovery” (Maj. Op.
U.S.App.
of 194
ined
clearly
party’s
nation
violated a
constitutional
F.2d),
D.C.,
mis-
is somewhat
at 188 of 598
rights). Congress did not choose either ex-
discovery,
leading.
its extent
of all
The control
treme, however;
adopted
it
the middle course.
restrictions,
use,
including pre-trial
has
extra-judi-
explicit
There are no
restrictions on
court.
been left to the trial
materials,
cial
has
use of
but
court
responsibility
discretionary power
Op.
Maj.
U.S.App.D.C.,
the
at
at 182
impose
party
such restrictions where a
demon-
F.2d.
of 598
is a
strates to the court’s satisfaction that there
palpable
injury
signifi-
risk of
to a somewhat
majority
docu-
frank to admit that the
The
is
cant
yet part
interest.
are not
under Rule 34
ments obtained
Maj. Op.,
“public
nature,
in this case.
of the
record”
by
very
approach,”
This “middle
its
note 28.
“takes into account" First Amendment -inter-
by placing
production
ests
burden of
both the
Op.
U.S.App.D.C.,
Maj.
of 194
persuasion
the burden of
on
seeking
protective
order.
of 598 F.2d.
order,
II.
good
(“may
cause
shown
.
“GOOD CAUSE
is
SHOWN”
had”).,
that
not be
26(c)
UNDER RULE
argues
prohibition
No one
that such
raises
26(c)
Rule
of the Federal Rules of
Under
any
problems,
First Amendment
issues or
the moving party
Civil Procedure
must
apparently
it is conceded
all that
“good
show
cause” for a
order.
“good
such an order
be based on mere
respondents’
that
majority finds
show-
cause,” and the district court
meet
need not
indeed,
it
was
was so
insufficient —
stringent
more
such
test
as “reasonable
clearly
deficient
District Court
likelihood of harm” or “serious and immi-
threat,” etc.,
acting upon
its discretion in
it. Ac-
nent
abused
before it can issue such
However,
an
majority
however,
order.
tually,
holds that
gravamen
the real
when a less serious intrusion of the district majority’s
inadequacy
is
censure
not
made,
e.,
court is
attempts
i.
to set limits
court, but, rather,
showing
made to the
on the
already
use of the information
re-
inadequacy
findings
made
ceived, it
stringent
must meet more
First
court on the basis of the data before it.
Amendment standards.
majority
believes that
results,
Thus the anomalous situation
in required
preface
the order with elaborate
which the
completely
district court is
unfet-
However,
findings.
and detailed factual
tered
First Amendment considerations
findings
Rule
required
such
are not
under
intrusive,
e.,
when it is most
prohibits
i.
and,
discussed,
26(c),
already
as I have
discovery altogether, and is more restricted
majority’s
findings
insistence on such
intrusive,
e.,
when it
puts
is less
i.
on
limits
based
erroneous belief
orders
the use of material which it allows to be
26(c)
satisfy
under Rule
must
nothing
discovered. This has
do
“good
incorporated
cause shown” standard
any “benefits-privileges” analysis, as the
rigorous
therein but also the
stan-
more
majority
(note
interprets my position
dealing
dards set forth in cases
with broad-
simply
principle
greater
er
orders unrelated to the dis-
(the power
prohibit altogether)
includes
covery process.
(the power
the lesser
grant
with condi-
tions),
logic
a bit of
recog-
which has been
*31
majority’s disposition
of this matter
nized as
valid
least since the ancient
First,
inquiry.
raises two areas of
what
Greeks.
showing
respondents required
kind of
were
me, then,
majority’s
seems to
that
“good
to make to establish
cause” under
elaborate First
analysis
gra-
is
Second,
26(c)?
showing
Rule
was the
actu-
tuitous. Since an
properly
order
issued un-
ally
by respondents adequate?
made
26(c)
constitutional,
der Rule
is
the focus of
inquiry should
“good
be whether or not
Showing Required
A. The Kind of
cause” has been shown for the order under
26(c).
review within the meaning of Rule
treatise,
According
leading
to a
in order
If the
properly
district court
issued the
cause,”
“good
moving party
to establish
26(c),
order under Rule
then the order is
particular
specific
must make “a
dem-
consistent with First Amendment
safe-
onstration of fact.”38
guards, and there is no reason to embark on
The first
line of cases are district court
independent
analysis.
First Amendment
judges
cases in which trial
have resisted
If the district
properly
court did not
issue
parties’ attempts
opponents’
to limit their
26(c),
the order under Rule
then it is viola-
by
discovery making general
conclusory
standards,
tive
statutory
and there is
again
objections.39 Typical
gener-
no
of the kinds of
reason to embark on a First
Amendment analysis.
objections
unsatisfactory
al
in
found
these
See,
Miller,
Stores,
Wright
g.,
Safeway
e.
&
Federal Practice and Pro-
Bowles v.
(1st
Corp.
cedure 265
ed.
Essex Wire
Eastern
F.R.D.
Co.,
Elec. Sales
cases are claims one larity demonstrating “good particular discovery by the other in cause.” burdensome, case, inconvenient, each the determination as to whether would be or “good is example, cause” had been demonstrated vexatious.40 For as one district judge committed to the sound discretion of the stated: trial court.45 Objections interrogatories should be sufficiently specific to the end under The trial court has broad discretion objections considering Court such 26(c) precisely appropri- Rule because the interrogatory propounded, as- protective ateness of a order involves the ad objection- certain therefrom claimed balancing competing hoc interests. On character; is, able whether the in- hand, judicial general the one there is the terrogatory calls for matter that is rele- open discovery. This interest in broad and subject vant to the matter involved in the against protective militates intervention action, pending privileged, oppres- hand, the court. On the other there are the objections sive or vexatious. General moving par- specific interests raised interrogatories proper. are not ty grounds protective intervention. required by “good All that cause” The second line of cases are court of requirement 26(c) of Rule in terms of the appeals reviewing judge’s cases a district specificity showing of the is that the mov- protective denial of a order. These cases ing party provide the with informa- hold that the judge district has not abused meaningfully tion sufficient to it enable his denying protective discretion moving party’s against balance the interests moving party where the spe- has made no the opposing party’s interests. This means cific showing good cause.42 In White v. enough the court must have before it Wirtz,43 for example, defendants asserted information nature to ascertain the that answering interrogatories pro- certain magnitude moving party’s inter- pounded by plaintiffs would be an “undue ests. expense.” burden and provided Defendants support no for this assertion. The trial degree specificity with which this
judge
protective
denied a
order. The court
brought
information must be
to the court’s
appeals
held that
judge
the trial
had
attention varies from case to case. For
broad
relating
protective
discretion
or-
example,
showing necessary
kind of
that,
ders and
in view of defendants’ con-
“good
depends
constitute
in each
cause”
clusory
unsupported
statements as to
upon
case
the kind of
burden, he had not abused his
discretion
sought46 The burden is heaviest on the
denying the
support
order.44 There is little
moving party
sought
where the order
would
precedents
in these
for a rule that a court
scope
restrict
itself and
clearly abuses its discretion unless it insists
adversely
therefore could
affect
the other
*32
every
case
highly specific
par-
on a
party’s
ability
litigation.47
to conduct
ticular
factual
Actually,
contrast,
demonstration.
In
there is less of a burden on
moving parties
26(c)
under
moving party
Rule
are not
sought
where the order
con-
Onassis,
(6th
1962);
40.
Id.
Galella
Cir.
subject petitioners’ claims had matter of District Court to was reasonable for the massive, many in already generated conclude, did, petitioners’ pro- it tendentious, publicity. possibly cases From posed well interfere press conferences could reasonably this the court could conclude al- by exacerbating the with a fair trial likely it to attract that it had before a case opinion toward re- ready hostile climate of coverage, particularly if sensational news was, spondents developed. It that had any encouragement given. were addi- therefore, the court to con- reasonable for tion, respondents brought the attention to clude sufficient cause had been shown court, protective in their motion for a limited to warrant issuance of a order, petitioners that counsel for the fact order. stage press planning to series of spe- majority does raise at least two portions conferences at which selected upon objections to the factual basis cific Agency through documents obtained dis- First, it which the District acted. Court covery interpreted were to be released and evi- complains that the record is devoid of for the media. The fact that release of of sensational dence that this is the kind information was to be selective is in itself likely generate case which is to massive significant. obviously It increases the dan- noted, publicity. already As concentrated ger that information will taken out of entirely had this is not true. The court context, suggests manip- and it an intent to subject before it fact that the matter of public opinion regard pend- ulate already generated petitioners’ claims had ing judicial proceeding. petitioners If were Furthermore, publicity. massive this factor motivated a disinterested desire to edu- petitioners and largely was in the control of cate populace generally, would depended in mani- upon petitioners’ success planned to release all of the docu- pulating public opinion. these cir- Under speak ments and let them for themselves. cumstances, to see how it is difficult respondents provide is true that did not further evidence could have been adduced any objective concerning demonstration by respondents that the case to demonstrate extent to which prospective publicity would great press would attract a deal of atten- However, interfere with a fair trial. this is tion. something virtually impossible which is Nevertheless, objectively. demonstrate Second, finally, majority com- court had it before data of its own plains that took no District Court experience dealing press coverage account of the fact that the case was trials, exercising and in its discretion the by judge jury. than a While tried rather expected rely experience on its judge there is no indication that the district making judgments. fact, relevant, ignored this it is and while judge’s Finally, groundless does not make con- brought court also its had publicity cern that adverse could respondents judicial attention massive strong Prejudicial policy against extra-judicial well interfere with a fair trial. statements litigation,49 a detrimental concerning counsel disclosure can have pending point trial. give to which the effect on the court in a bench majority seems to weight all, human”,50 no “Judges whatsoever. and even the most After a court is stated, recently attempting 49. As the First to build a favorable climate or Circuit has proper opinion. attorney function of an Co., United States v. of Maine Lobster Coast present his case in the court- (1st 1976). F.2d 901-02 room, extrajudicial to make statements evidence, interpreting explaining Bauer, antic- Lawyers Chicago Council ipating adversary’s strategy, his own or his F.2d 256-57
213 Mandamus, remembered, it must be does among can be affect- austere intellect them gauntlet reversible er- highly not “run the way ed—one or another — Life & Co. v. Hol- charged opinion. climate of Conduct of a rors.” Bankers Cas. land, 379, 382, ways. 98 yet trial can be influenced in other Witnesses, (1953). example, may be affected L.Ed. 106 Its office is not to for Moreover, court,” trial highly charged atmosphere. “control the decision of the merely the lower frequently employed suits as but rather to confine such this juries sphere discretionary advisory under Rule 39 of the Federal court to of its prejudiced power. Rules of Civil Procedure. A cli- opinion for
mate of would make difficult majority that mandamus is claims judge employ technique. in the traditional sense—that appropriate sum, then, the District Court acted entry protective the District Court’s entering well within discretion in a nar- its a clear abuse of its discretion.54 order was rowly prejudi- drawn order to minimize the contends, so, majority because This is pretrial publicity pre- effect of and to cial based on a order was not judicial parties abusing proc- vent im- specific showing factual of serious and by seeking discovery non-litigation ess danger minent to the fair administration purposes. justice. already I have demonstrated in Part I of
III. THE INAPPROPRIATENESS
this dissent that this constitutional claim is
OF MANDAMUS
present
without merit.
“clear
dan-
.The
Traditionally,
only
urged by
majority
mandamus has
been
is in-
ger” standard
proper
orders
apposite
where the action of the district court
in this context. Protective
permissible
amounted
to a clear abuse of discretion or
such as the one issued here
However,
usurpation
judicial power.51
long
are based on
prior restraints so
recently
Supreme
“good
required in Rule
both the
Court and this
cause shown” as
Furthermore,
26(c).
recognized
court have
even if there were
that mandamus
claim, this
should also be available in
some merit in this constitutional
limited circum-
supervisory
necessarily
petitioner
stances
entitle
advisory pur-
or
would not
poses.52
regardless
previously rec-
type
But
of the
of man- mandamus. This court has
traditional,
which al-
supervisory,
ognized
damus
orders
involved—
advisory
rights are not
availability
legedly
of the writ is in-
violate constitutional
—the
dependent
entry of an-
appealable
prior
of the existence of error in the
at least
ruling:53
contempt.55
trial court’s
order of
Holland,
U.S.App.D.C.
F.2d
Bankers Life &
Cas. Co.
379, 383,
(1953).
(1975). Advisory
98 L.Ed.
mandamus
is available
clarify
question “that
where the decision will
Holder,
generally Schlagenhauf
52. See
likely
to confront a number of lower court
(1964);
interlocutory
.
.
.
granted
orders.
Courts
writs
Indeed few courts
petitions
peremptory
faced with
for the
that
ground
on the
against
orders
writs must be careful
lest
suffer
of discre-
the orders involved clear abuses
themselves to be misled
labels such as
tion. The
in which this has been done
cases
pow-
“want
“abuse of discretion” and
commonly involved the most bla-
have most
interlocutory
nonap-
er” into
review of
57and orders either shut-
tant kind of error
pealable
ground
orders on the mere
aspects of
ting
important
off
they may be erroneous.
broad,
permitting
in-
petitioners’ case
or
already
As I have
II
discussed
Part
discovery.59 None
unnecessary
trusive
dissent,
this
the District Court acted well
present
in this
of these circumstances is
issuing
protec-
within its discretion in
case.
only
tive order. Not
was there a local rule
important
It is also
to note that
this
expressly provided
restrictions on
petitioners
a case
lack
situation,
not
where
counsel in this
but the court also
proposed press
had before it
As
adequate
appellate
statements
means of
review.
ing “extrajudicial
participants
speak
might
not
with members of
statements which
di-
record,”
vulge prejudicial
press.
matter not
Maxwell,
Sheppard
“mingling
proximity”
being
v.
384 U.S.
and from
view of
(1966),
reporters
photographers
formation that is claimed to be gen- more privilege,64 Constitution,63 The rationale of eral interests in secrecy.65 petitioner that once
these cases has been infor-
compelled to reveal the confidential
mation, provide impossible becomes future; permanent
effective relief in the
damage has been done. justified because
Mandamus is not here of such challenged protective order is will petitioners’ claims scope
limited
Williams,
725; City
Angeles
v.
of Los
24,
438 F.2d
U.S.App.D.C.
at 1245.
60. 167
510 F.2d
Time, Inc.,
(9th
1971);
Ryan,
Gialde
See also United States
Cir.
Exp.
1973);
American
(1971).
(8th
F.2d 1295
Cir.
Co.,
Warehousing,
Ins.
v. Transamerica
Ltd.
Ibid.,
Anderson,
citing
United States v.
1967).
(2nd Cir.