Liggett Group, Inc., and Liggett & Meyers Tobacco Co. (collectively “Liggett”) appeal an order of the district court modifying an earlier protective order covering discovery materials produced by Liggett. Request for the modification came from a group of public health organizations represented by Public Citizen Litigation Group (“Public Citizen”). 1 Liggett contends that Public Citizen lacked standing to request modification, both because it failed to obtain status as an intervening party under Rule 24 of the Federal Rules of Civil Procedure and because it had no substantive right of access to the materials in question, and that it failed to establish adequate circumstances justifying the modification. We affirm in part but modify the district court’s order.
I. BACKGROUND
A. Initial Proceedings
On August 26, 1980, Joseph C. Palmer died of lung cancer after having smoked cigarettes made by Liggett for a number of years. Three years later, Palmer’s wife and mother filed a diversity action against Liggett in United States District Court for the District of Massachusetts. The Palm-ers asserted various state law claims against Liggett based on Liggett’s allegedly inadequate warnings about the health risks of smoking.
Discovery began in 1984 and, during the course of discovery, three protective orders were entered by the district court. The first two orders, dated January 17, 1984, and January 25, 1985, pertained to the confidentiality of the plaintiffs’ medical records. They are not at issue here. It is the third protective order, providing broad protection for documents produced by Lig-gett, which is the center of the current controversy.
This protective order grew out of plaintiffs’ January 22, 1985 deposition subpoena directed to the custodian of documents at Arthur D. Little, Inc. (“Little”). Little is a private consulting firm that performed research work for Liggett in the early 1950’s. Pursuant to the subpoena and by agreement of the parties, plaintiffs’ counsel were permitted to inspect eighteen boxes of doc *777 uments at Little’s offices on January 30-31, 1985. Counsel began copying documents on February 1, 1985. On February 5, Liggett moved for a protective order under Rule 26(c) barring any nonlitigatory use of the Little documents and of all future discovery in the action. In support of its request, Liggett asserted that plaintiffs’ discovery requests encompassed massive numbers of documents and that it would be “physically impossible for [Liggett] to designate individually each document containing confidential or secret information.”
The plaintiffs opposed the protective order on the ground, among others, that Lig-gett had waived its claims to confidentiality by previously allowing counsel to review and copy the Little documents. The district court granted Liggett’s motion and signed the protective order on February 25, 1985.
The order as approved had two components. The first is a blanket provision mandating that “[a]ll information produced or exchanged in the course of this civil action or any appeal arising therefrom ... shall be used solely for purposes of this case.” The second provides heightened protection for any materials explicitly designated by a party as “confidential.” With regard to both categories of materials, the protective order provides that “[wjithin forty-five days after the final adjudication or settlement of all claims in this case, counsel for the parties either shall return all documents produced, if so requested by the producing party, or shall destroy all such documents. All copies of all documents, and all information and notes derived from them, also shall be destroyed.”
Subject to the restrictions of the protective order, plaintiffs’ counsel copied approximately 1200 documents (one box full) from the eighteen boxes of Little documents to which the plaintiffs had access. None of these documents were ever designated by Liggett as confidential. The documents have remained in the possession of plaintiffs’ counsel since that time.
On June 7, 1985, the Wall Street Journal wrote a letter to the district court expressing interest in seeing the Little documents and seeking advice on how best to proceed in obtaining a modification of the protective order. One week later, plaintiffs’ counsel filed a “Notice of Intent to Disseminate [the Little] Documents” to the Wall Street Journal. In support of their proposed action, plaintiffs cited Liggett’s failure to designate any documents as confidential and to articulate any reason why release of the documents would harm Lig-gett. Plaintiffs also pointed out that many of the documents had been marked as exhibits for trial and thus would be made public eventually anyway. Liggett opposed the plaintiffs’ proposed action, arguing that the protective order was still in full force, and, on June 28, 1985, filed its own “Motion to Require Compliance With Protective Order.”
In response, plaintiffs filed a motion for clarification or modification of the February 25 protective order. Plaintiffs argued that the order should be read as applying only to documents designated as confidential, because otherwise it would extend protection to information whether or not it qualified as confidential under the federal rules. At this point, the Wall Street Journal also sought leave to intervene in the action and filed its own request for clarification or modification. On July 16, 1985, the district court refused to modify the protective order and allowed Liggett’s motion to compel compliance. It noted: “The dissemination of this material will not aid in the fair trial of this case. The trial is public and the Wall Street Journal is, of course, able to attend the trial.” Plaintiffs’ and the Wall Street Journal’s motions were denied.
One week later, the
Wall Street Journal
moved for reconsideration of the district court order. The
Journal’s
motion was based primarily on the decision in
Cipollone v. Liggett Group, Inc.,
In April of 1986, Liggett moved to dismiss certain of plaintiffs’ claims on the ground that they were preempted under the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331
et seq.
The district court denied the motion but certified the question pursuant to 28 U.S.C. § 1292(b), to this court, which reversed.
Palmer v. Liggett Group, Inc.,
In light of our opinion, Liggett moved in the district court to have the Palmers’ complaint dismissed and judgment entered for Liggett. Over the plaintiffs’ objections, the district court granted the motion and entered judgment for Liggett on October 6, 1987. No appeal was taken.
B. Public Citizen’s Motion for Access to Discovery Materials
On December 28, 1987, Public Citizen filed two motions in district court. In its first motion, Public Citizen sought interlocutory relief: an order mandating that the parties maintain and not destroy or return discovery materials in the Palmer case pending resolution of its second motion. This first motion was allowed by the district court the same day. The second motion sought a modification of the February 25, 1985 protective order such that all discovery materials could be freely disseminated, except for those documents in which Liggett had “good cause” for continued confidentiality. It also requested that the district court order the parties to file all discovery materials in court. The broad relief requested by Public Citizen seemingly applied to materials produced both by Liggett and the plaintiffs, but, in argument, Public Citizen made clear that it sought access only to the Little documents produced by Liggett.
Public Citizen based its access claim on Rules 5(d) and 26(c) of the Federal Rules of Civil Procedure. Rule 5(d) provides:
All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter, but the court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and respons *779 es thereto not be filed unless on order of the court or for use in the proceeding.
Rule 26(c) provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
Rule 5(d), Public Citizen argued, creates a presumption that all discovery materials will be available to the public because they will be filed in court. Moreover, under Rule 26(c), public access can be cut off through a protective order only upon the showing of “good cause.” Especially in light of the district court’s dismissal of the Palmers’ claims in this case, Public Citizen asserted that good cause for the February 25, 1985 protective order no longer existed. Thus, it said, the order should be modified and Rule 5(d) filing of discovery materials ordered.
Public Citizen did not make a formal motion to intervene in the case pursuant to Rule 24. Rather, it sought to proceed informally under Rule 16(g) of the Local Rules of the United States District Court for the District of Massachusetts. Local Rule 16(g) is based on Rule 5(d) of the Federal Rules, but it actually reverses in part the filing presumption of Rule 5(d), by providing that discovery materials ordinarily are not to be filed in court “unless so ordered by the court or for use in the proceeding.” Essentially, Rule 16(g) codifies the local practice of district courts always ordering — as Rule 5(d) permits— that discovery materials otherwise subject to the Rule 5(d) filing requirement not be filed pursuant to Rule 5(d) unless the court asks that they be filed. To facilitate this scheme, Rule 16(g) provides that parties and nonparties may request that filing be ordered:
If for any reason a party or concerned citizen believes that any [discovery documents subject to the Rule 5(d) filing requirement] should be filed, an ex parte request may be made that such document be filed, stating the reasons therefor. The court may also order filing sua sponte.
Believing that Rule 16(g) thus obviated the need for obtaining formal intervenor status in order to request filing, Public Citizen sought relief as a nonparty. In the event the district court thought intervention necessary, however, Public Citizen did ask to be granted intervenor status and argued that intervention had been routinely granted in the past when nonparties sought access to judicial records.
Liggett opposed the motion on a number of grounds. It claimed first that Public Citizen could participate only as a Rule 24 intervenor and that the time for requesting intervention had passed. For this reason, Liggett said, Public Citizen lacked standing. Liggett also disputed Public Citizen’s interpretation of Rule 5(d), maintaining that it created no general right of public access to discovery materials. Finally, Lig-gett argued that even if Public Citizen had standing to seek public access, there had been no showing of compelling need for a modification.
The district court held a hearing on January 28,1988, with counsel for Liggett, Pub- *780 lie Citizen and the plaintiffs present. 3 The court began by considering whether it still had jurisdiction over the matter, in light of its previous order of dismissal and judgment for Liggett on the merits. It found that jurisdiction did exist, because the outstanding protective order presented a live controversy extending past the dismissal of the underlying claims. The court also agreed with Public Citizen that there is a right of public access to discovery materials under the federal rules, a right that was especially strong in this case because of the important public health concerns surrounding the documents in question. Moreover, the court said, Liggett had failed to establish any compelling need for continuing the protective order. The court accordingly ordered that the eighteen boxes of Little documents to which the plaintiffs had access, along with the documents already in the plaintiffs’ possession, be filed in court and made available to the public. 4
The district court issued a stay pending appeal and this appeal followed.
II. THE DISTRICT COURT’S POWER
We begin our analysis, as did the district court, by examining the court’s jurisdiction, or power, to issue discovery-related orders after the court dismissed the underlying claims and entered a judgment on the merits. In so doing, we think it is important to distinguish between two separate and distinct aspects of the district court’s January 28, 1988 order which is under review: the modification of the protective order and the order that the parties file the discovery materials in court.
Under Local Rule 16(g), the parties to this case were, as parties to cases in the District of Massachusetts generally are, excused from filing discovery materials in court. The effect of this nonfiling was to deny the public the right it would otherwise have had to inspect freely the discovery materials in this case, because the materials were not kept in any publicly accessible location. Certainly the public has no right to demand access to discovery materials which are solely in the hands of private party litigants. Rule 16(g) does not in any way limit the use or dissemination of discovery materials by
parties.
Indeed, the Supreme Court has noted that parties have general first amendment freedoms with regard to information gained through discovery and that, absent a valid court order to the contrary, they are entitled to disseminate the information as they see fit.
See Seattle Times Co. v. Rhinehart,
Prior to the entry of that order the situation was this: the parties were not required to release publicly the discovery materials by filing them, but they were free to disseminate them if they chose to do so.
Cf. Oklahoma Hospital Ass’n,
With respect to the filing aspect of the court’s order, we believe that by the time the district court acted on January 28, 1988, it lacked the power to impose such new requirements on the parties. Accordingly, we vacate that part of the district court’s order.
Our reasoning is simple. The district court’s judgment of October 6, 1987, was a final dismissal on the merits, concluding the litigation between the Palmers and Lig-gett. It left no substantive issue unresolved and it contained no provisions for equitable relief that would have required ongoing supervision by the district court. Under these circumstances, we think that the court simply lacked power to impose any new, affirmative requirements on the parties relating to discovery.
See Cooper v. R.J. Reynolds Tobacco Co.,
To be sure, a district court has limited power to undo or alter a judgment after the judgment has been entered. Within strict time constraints, a court may amend a judgment under Rule 59. Courts may also correct clerical mistakes, Fed.R.Civ.P. 60(a), and even, for good reason, grant a party relief from judgment. Fed.R.Civ.P. 60(b). But no such relief was requested or granted here. The district court assumed, as did the parties, that the October 6, 1987 judgment was valid and final.
It is important to note that the purpose of discovery is to enable parties to an action to obtain material “which is relevant to the subject matter in the pending action,” a purpose that obviously can no longer be served once a case has been dismissed. Indeed, once a case has been dismissed and rights to appeal have lapsed, parties are under no obligation, legal or practical, even to preserve discovery materials they have obtained. In this case, for instance, both the plaintiffs and Liggett were free to destroy all the Little documents in their possession long before Public Citizen filed its motion, rendering any Rule 5(d) filing order meaningless. 5 Thus, although the district court had the power under Rule 5(d) to order filing of discovery materials during the pendency of the action, we hold that the court’s power did not extend to postjudgment action.
Turning next to the district court’s modification of the protective order, we think that an entirely different analysis applies. Unlike the filing order of January 28, 1988, the protective order was entered on February 25, 1985, long before the dismissal and judgment and at a time when the court clearly had the power to super *782 vise and issue orders concerning discovery. 6 Moreover, the protective order, by its own terms, extended until forty-five days after the “final adjudication or settlement” of the Palmers’ claims. 7 During the pendency of the protective order, including times after judgment, the order acted as an injunction, setting forth strict limitations on the parties’ use of discovery materials.
In support of this “injunction,” the district court necessarily had the power to enforce the order, at any point while the order was in effect, including periods after judgment. As was demonstrated by the court’s order to compel compliance in the face of plaintiffs’ expressed intention to provide the Little documents to the Wall Street Journal, violation of the protective order during its lifetime would have exposed the parties to contempt liability. Correlative with this power to enforce, the district court necessarily also retained power to modify the protective order in light of changed circumstances. The Supreme Court established long ago that even an injunction entered by consent of the parties — and this protective order was entered over the objections of the plaintiffs — is always modifiable.
Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.... [A] court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changed circumstances into an instrument of wrong.
United States v. Swift & Co.,
Consistent with this well-established rule, we think that the district court in this case had the inherent power to modify its February 25, 1985 protective order for so long as the order was in effect. We note that the courts and commentators seem unanimous in finding such an inherent power to modify discovery-related protective orders, even after judgment, when circumstances justify.
E.g., Ex Parte Uppercu,
In sum, although the court lacked power to impose new discovery-related obligations after dismissing the case on the merits, we find that, because the protective order was still in effect, the district court had the power to make postjudgment modifications to the protective order in light of changed circumstances. Accordingly, we move on to consider the propriety of the modification actually ordered.
III. STATUS OF THE NONPARTY MOVANTS
As previously noted, Public Citizen did not secure Rule 24 intervenor status in this case, but rather sought to participate informally under Local Rule 16(g) as a nonparty movant. 8 In the district court, Liggett maintained that intervention was necessary and now, on appeal, challenges the district court’s modification order on the ground that Public Citizen lacked standing because it was not granted intervenor status. Lig-gett also claims that Public Citizen was ineligible for Rule 24 intervention in any event because its motion was untimely. We find Liggett’s procedural arguments unavailing.
The question of whether nonparty mov-ants may obtain relief in a civil case appears to be one of first impression in this court. Prior third-party challenges to court closures and protective orders have involved either parties who did obtain formal intervenor status,
Anderson v. Cryovac, Inc.,
Relying on the language of Rule 24, the Fifth Circuit has previously held that intervention is
“the
procedurally correct course” for third-party challenges to protective orders.
In re Beef Industry Antitrust Litigation,
We do not, however, view this error as fatal to Public Citizen’s claim. We find two factors persuasive. First, although Public Citizen sought to proceed in the first instance without Rule 24 intervention, it did request, in the alternative, that it be granted intervenor status if the district court thought that intervention was necessary. Second, the district court did afford relief to Public Citizen as if it were a proper party to the case, thus implicitly granting it intervenor status. Under similar circumstances, other federal courts have been quite lenient in permitting participation by parties who failed to comply strictly with Rule 24. In
Beef Industry Antitrust Litigation,
It is clear from the proceedings below that the district court considered Public Citizen to have a legitimate interest in seeking modification of the protective order. We have no doubt that, had the district court thought Rule 24 intervention necessary, it would have treated Public Citizen’s motion as a request for intervention and granted it. That being so, no purpose would now be served if this court were to dismiss the appeal and send this case back to the district court for the rote procedural step of approving intervention. After a substantial delay, the case would still return to us in a similar posture for resolution of the substantive issue underlying this dispute. For purposes of this appeal, then, we will treat Public Citizen as having requested and been granted status as a Rule 24 intervenor. A caveat is, however, in order: “[W]e reiterate that a formal motion for intervention should have been filed pursuant to Rule 24(c). Future litigants should not attempt to use this opinion to circumvent the clear requirements of the rule.”
Beef Industry Antitrust Litigation,
We turn next to Liggett’s contention that, even if Public Citizen is treated as having requested intervention, its motion to modify was untimely as a matter of law because it was filed on December 28, 1987, twelve weeks after the judgment on the merits in this case and after the time for appeal from that judgment had expired. We begin our analysis with two fundamental principles. First, although Rule 24 requires that an application for intervention be “timely,” the rule itself sets down no bright line standard for determining what constitutes timeliness. It has thus been held that “timeliness is to be determined from all the circumstances.”
NAACP v. New York,
It is also important to note that post-judgment intervention is not altogether rare. Numerous courts have allowed third parties to intervene in cases directly analogous to this one, many involving delays measured in years rather than weeks.
E.g., Wilson v. American Motors Corp.,
Adopting the analysis of the Fifth Circuit in
Stallworth v. Monsanto Co.,
The first
Culbreath
factor to be considered is the length of time that Public Citizen knew or reasonably should have known of its interest in this case before it petitioned to intervene.
To begin with, the very same request for modification of the protective order put forth by Public Citizen after judgment had been made by plaintiffs and the Wall Street Journal in 1985. In turning down those requests, the district court cited two factors: first, that many of the discovery documents in question presumably would be introduced at trial and made public at that time; and, second, that the very issue of the propriety of this protective order was being litigated in the Cipollone case in the Third Circuit, making it appropriate for the court to wait until after the Third Circuit litigation was resolved to decide the protective order issue in this case. Certainly, then, Public Citizen cannot be said to have been untimely for failing to act prior to the resolution of the issues underlying the court’s two concerns.
With respect to the first factor, the possibility of trial could not be ruled out prior to October 6, 1987, when the district court *786 dismissed the claims and entered judgment. Moreover, even that judgment did not finally resolve the matter, for the plaintiffs had until November 5, 1987, to appeal the judgment, and the time for plaintiffs to petition for certiorari review of this court’s preemption decision (upon which the dismissal was based) did not expire until November 23, 1987. Counting back from the December 28, 1987 filing date of its motion, Public Citizen’s delay was, therefore, eight weeks or four weeks depending on which of these latter dates is used. If we refer to the second factor cited by the court — the Ci-pollone litigation — Public Citizen’s delay is only three weeks, for, as we indicated in note 2 supra, the protective order aspect of the Cipollone case was not resolved until December 7, 1987. In the context of this case, which had been proceeding for well over four years, we do not think that this delay, on the order, of weeks was material.
The second
Culbreath
factor to be considered is the prejudice to existing parties due to Public Citizen’s delay in intervening.
The analysis of the District of Columbia Court of Appeals in the recent case of
Mokhiber v. Davis,
[Ojrdinary principles applicable to intervention do not work well here. The filing of a motion to intervene is simply recognized as an appropriate means of raising assertions of public rights of access to information regarding matters in litigation. “Intervention of this type may properly be termed de bene esse, to wit, action that is provisional in nature and for the limited purpose of permitting the intervenor to file a motion to be considered separately, requesting that access to proceedings or other matters be granted.” Commonwealth v. Fenstermaker,530 A.2d 414 , 416 n. 1 (Pa.1987).
[T]o the extent [a right of access] exists, it exists today for the records of cases decided a hundred years ago as surely as is does for lawsuits now in the early stages of motions litigation. The fact that a suit has gone to judgment does not in any sense militate against the public’s right to prosecute a substantiated right to see the records of a particular case. Moreover, access to court records does not involve relitigation of the underlying dispute, so the rationale behind requiring extraordinary circumstances for postjudgment intervention does not as a rule apply to access claims. 10
*787 [T]he prejudice the parties would suffer from postjudgment access to court documents should not determine the timeliness of the intervention to assert [a] right of access. Instead, assuming an intervenor does assert a legitimate, presumptive right to open the court record of a particular dispute, the potential burden or inequity to the parties should affect not the right to intervene but, rather, the court’s evaluation of the merits of the applicant’s motion to lift the protective order — that is, the court’s judgment as to whether, under the circumstances, the balance of equities favoring sealing overrides any presumptive right of access.
Id. at 1105-06. We find this analysis compelling and reject the notion that prejudice to the parties in this action would be grounds for denying intervention by Public Citizen.
The third and fourth
Culbreath
factors to be considered are the prejudice that would be suffered by Public Citizen if it were not allowed to intervene and the existence of extraordinary circumstances militating for or against intervention.
Having thus concluded that Public Citizen can be considered as a proper Rule 24 intervening party, we believe it has standing to pursue the public access claim here at issue. Courts, including this one, routinely have found that third parties have standing to assert their claim of access to documents in a judicial proceeding.
E.g., In re Alexander Grant & Co. Litigation,
IV. A RIGHT OF PUBLIC ACCESS TO DISCOVERY?
In assessing the claimed right of access in this case, it is helpful to begin by noting what is not being claimed. Unlike many prior litigants in this court and others,
13
*788
Public Citizen has not claimed that it has— independent of the federal rules — a general common law or first amendment right to inspect the discovery materials. Such a claim has been largely foreclosed by the Supreme Court’s decision in
Seattle Times Co. v. Rhinehart,
In Seattle Times, members of a religious group sued the Seattle Times in state court for defamation and invasion of privacy. As part of its defense of that case, the Seattle Times sought to discover information regarding membership in and donations to the religious group during the previous five years. When the group resisted, the trial court compelled production, but entered a protective order under the state analog of Federal Rule 26(c) prohibiting the Seattle Times from disseminating or using the information in any way except as necessary to prepare and try its case. The Seattle Times then challenged the protective order as a prior restraint on speech in violation of the first amendment.
The Supreme Court rejected the Seattle Times’s claim and also rejected the suggestion that review of a protective order requires any heightened scrutiny under the first amendment. Although acknowledging that litigants do have limited first amendment rights concerning information obtained through discovery, the Court focused on the fact that discovery is “a matter of legislative grace” and that litigants gain access to discovery materials “only by virtue of the trial court’s discovery processes.”
Id.
at 31-32,
As we said in
Anderson v. Cryovac, Inc.,
It is, therefore, very significant that Public Citizen has not asserted a common law or first amendment right of access independent of the federal rules. Rather, Public Citizen has based its claim
on
the federal rules, asserting that, under Rules 5(d) and 26(c), the public has a presumptive right of access to discovery materials unless good cause for confidentiality is shown, and that no good cause exists here. Nothing in
Seattle Times
or
Anderson
precludes such a claim. Discovery is “a matter of legislative grace,”
In seeking to defeat Public Citizen’s claim, Liggett and
amici
Product Liability Advisory Council, Inc., and Motor Vehicle Manufacturers Association of the United States, Inc., have pointed to some expansive language in
Seattle Times, Anderson
and similar cases to bolster their claim that the public should not be afforded access to discovery materials.
See, e.g., Seattle Times,
We think, however, that these arguments and authorities are misplaced here. All of the cases upon which Liggett and amici rely are cases where the claimed right of access was based not on the federal rules, but on the common law or the first amendment. They are cases where, in essence, litigants put forth common law and constitutional arguments in an effort to trump application of the federal rules standard for protective orders. In rejecting such arguments and adhering to the federal rules standard, courts sensibly have noted that a contrary result would lead to thwarting the interests of privacy and litigative efficiency which are embodied in the federal rules. But nothing in those opinions purported to elevate privacy and efficiency as factors to be considered over and above compliance with the federal rules. Rather, the point of the cases was that, because of privacy and efficiency concerns, the federal rules should be followed.
Thus, when in
Anderson
we noted that “[t]here was no tradition of public access to depositions before [passage of the federal rules in] 1938,” we went on to say that now, under Rule 5(d), courts
may
require public filing of discovery requests and responses.
Liggett and amici would have us turn these cases on their heads by holding that privacy and litigative efficiency concerns ought to work independently of the federal rules, actually limiting a district court’s ability to deny protection under Rule 26(c), even when no good cause is shown. We are not willing to do so. This case involves a claim of access to discovery materials under the federal rules and we believe that the merits of the claim must be judged by the text of the rules and the applicable cases interpreting the rules. The rules themselves seek to accommodate concerns of privacy and litigative efficiency, and we find no reason for imposing additional judge-made constraints on the district court’s control of discovery. Accordingly, we turn to consideration of the relevant federal rules.
Centrally at issue is Rule 26(c), which permits a district court to issue protective orders covering discovery materials upon a showing of good cause:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense....
As the Second Circuit has noted,
A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspec-tion_ Any other conclusion effectively would negate the good cause requirement of Rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.
In re Agent Orange Product Liability Litigation,
We agree with the Second Circuit. It is implicit in Rule 26(c)’s “good cause” requirement that ordinarily (in the absence of good cause) a party receiving discovery materials might make them public. In this instance, Public Citizen wished to relieve the plaintiff of the burden of an order that prevented it from making public previously obtained discovery materials. Given the fact that Public Citizen directly benefitted from modification of that order, and for the reasons previously pointed out, we conclude that it had standing to intervene in the case and to ask the court to modify its pre-existing protective order.
V. STANDARD FOR MODIFYING PROTECTIVE ORDERS
Although it is conceded that the governing standard for entry of a Rule 26(c) protective order is good cause, Liggett asserts that a different standard ought to apply when a court considers modifying an existing protective order. Liggett argues that parties to a protective order have legitimate reliance interests in its continued validity and finality. Citing to a Second Circuit opinion, Liggett claims that an existing protective order can be modified only on a showing' of “extraordinary circumstance or compelling need.”
Martindell v. International Telephone & Telegraph Corp.,
We think that Liggett’s argument must be rejected. Even accepting that an extraordinary circumstances standard applies, we do not think that the district court erred in modifying the protective order. Control of pretrial discovery, including the entry or modification of a protective order, is a matter falling peculiarly within the discretion of the district court.
Agent Orange,
To begin with, the protective order modified by the district court was a blanket protective order, that is, it was an order extending broad protection to all documents produced by Liggett, without a showing of good cause for confidentiality as to any individual documents. Although such blanket protective orders may be useful in expediting the flow of pretrial discovery materials, they are by nature over-inclusive and are, therefore, peculiarly subject to later modification.
See Manual for Complex Litigation, Second
§ 21.431, at 53 & n. 60 (1985);
In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation,
It is argued that a protective order of this sort may lead a party to be more forthcoming in discovery. A protective order may induce a party, for example, to permit an opponent to go through its files, taking relevant material. The party would not insist upon screening the materials first because it would not fear that irrelevant or confidential material, protected by the order, would be made public. Insofar as a rationale of this sort underlay the original protective order, it would seem unfair later to remove that order’s protection.
We do not accept this argument as controlling here, however, for one simple reason. As far as we can tell from this record, the particular documents that Public Citizen seeks are not documents that were irrelevant to the litigation nor do they contain trade secrets or other specially confidential material. Insofar as it applies to the documents they seek, the protective order did not rest upon the rationale just mentioned. Rather, the court initially protected those documents for a very different reason: namely, the court, believing that the documents would become public in any event during trial, wished to conduct that trial free of the pretrial publicity that might follow premature release of the documents. Liggett, of course, remained free, in respect to any particular document, to argue to the district court that the document in question either was irrelevant to the discovery request or should remain protected as a confidential document for some special reason (such as “trade secrets”) that would have prevented its having been made public at trial.
Moreover, we are not convinced that the extraordinary circumstances standard proffered by Liggett is applicable here in any event. For one thing, the
Martindell
case principally relied upon by Liggett is clearly distinguishable, having been based on policy concerns not applicable here.
Martin-dell
involved an attempt by the United States government as prosecutor to short cut its normal investigative procedures by obtaining sealed depositions in a shareholder derivative suit to which it was not a party. Pointing out the reliance interests of witnesses who testified pursuant to the protective order without invoking their fifth amendment right against self-incrimination, the Second Circuit refused to modify the protective order.
Outside the area of government intervention, courts have applied much more lenient standards for modification.
See e.g., Wilk,
VI. CONCLUSION
The district court’s order is affirmed with respect to the modification of the protective order, but reversed with respect to the requirement that the parties file discovery materials in court. The parties are, therefore, free to disseminate discovery materials, but they are not obligated to make them publicly available by filing them in court.
SO ORDERED.
Notes
. The organizations are American Cancer Society, American Heart Association, American Lung Association and American Public Health Association.
. The Third Circuit eventually issued a writ of mandamus, noting errors in Judge Sarokin’s analysis, and remanded for reconsideration.
Cipollone v. Liggett Group, Inc., 785
F.2d 1108 (3d Cir.1986). On remand, Judge Sarokin modified his analysis with respect to documents designated as confidential, but nonetheless found that Liggett had failed to establish good cause for protection under Rule 26(c). Judge Sarokin also stuck by his original order striking down the blanket protection for undesignated documents.
Cipollone v. Liggett Group, Inc.,
. Although the plaintiffs had not filed a formal response to Public Citizen’s request, the plaintiffs vigorously supported Public Citizen’s efforts at the hearing. As they had previously, plaintiffs said that they were interested in disseminating to the public the Little documents in their possession.
. Unsure whether Liggett actually had designated any discovery materials as confidential under the February 25, 1985 protective order, Public Citizen had, in its motion for modification, suggested that documents which Liggett maintained were confidential might be exempted from filing, subject to in camera review by the district court to insure that they were indeed confidential. At the hearing, however, it was brought out by plaintiffs that no designations had been made, and Public Citizen apparently abandoned its suggestion for document-by-document review of the materials. In any event, the district court ruled that Liggett’s time for designating documents as confidential had passed and that only documents containing trade secrets would be exempt from the court’s filing order.
. Counsel for Public Citizen conceded at oral argument that the parties could have destroyed the discovery materials prior to Public Citizen’s motion without violating the protective order or any other legal requirement and that, in that case, Public Citizen would have been out of luck in seeking access.
. On this appeal, no one has contended that the February 25, 1985 protective order was not a valid protective order at the time it was entered. We have assumed, without deciding, that it was indeed valid.
. The Palmers' claims were not “finally adjudicated” until November 23, 1987, when the period for petitioning for certiorari review of this court's preemption decision expired. See discussion infra at 785. Public Citizen's motion of December 28, 1987, was thus made during the allotted forty-five day period, while the protective order was still in effect.
. Local Rule 16(g) is quoted supra at 779. Rule 24 provides in relevant part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by the parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c)Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
. In Culbreath, we upheld the district court's denial of intervention on timeliness grounds, but the facts there — attempted intervention on the merits four years after the litigation began and two months prior to submission of a consent decree — are far different from those in the present case. We thus refer to Culbreath not for its holding per se, but for the timeliness test it established.
. It is for precisely this reason that Liggett’s citation to
Burney v. City of Pawtucket,
. Although the plaintiffs did seek permission to disseminate the discovery materials at an earlier stage of the litigation and continue to support Public Citizen’s claim, they took no steps on their own to have the protective order modified after judgment.
. We have uncovered only one access case where standing was found lacking, but that case is clearly distinguishable.
Oklahoma Hospital Ass’n v. Oklahoma Publishing Co.,
.
See, e.g., In re Alexander Grant & Co. Litigation,