108 F.R.D. 113 | D.D.C. | 1985
MEMORANDUM OPINION AND ORDER
Before the U.S. Magistrate is plaintiffs’ motion to vacate or modify the November 15, 1984 and April 1, 1985 Protective Orders as to the disclosure of the name and identity of a non-party attorney witness in circumstances involving the invocation of the Fifth Amendment against self-incrimination. Arguments were heard on October 22, 1985 on plaintiffs’ motion to vacate the protective orders, which was filed August 16, 1985. Before the Magistrate also is the non-party witness’ motion to have a portion of the court transcript of August 14, 1985 sealed.
The Magistrate first queried counsel as to jurisdiction of the Magistrate to act in view of the notices of appeal filed by the defendant Edward A. Markowitz in both cases on September 27, 1985 and whether the matter here at issue is sufficiently collateral to the issues on appeal as to the Court’s action in modifying and then approving a settlement agreement which had been arrived at by the parties and counsel and thereafter entering judgment on the settlement agreement as modified.
The Magistrate is satisfied that the issues involving the continuing of the protective order in effect as to disclosure of a non-party’s identity is more than sufficiently collateral to the issues involved in the notice of appeal from the Order of the Court of declaratory judgment, money judgment and decree of equitable accounting entered August 30, 1985 by Judge Louis F. Oberdorfer of this court, to permit
Even though the Magistrate has the jurisdiction to vacate the protective orders, the Magistrate is of the view that there are still privacy interests to be served under the rationale of Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982), and In re John Doe Corp., 675 F.2d 482 (2d Cir.1982), and that the Protective Orders should not be vacated, but only modified. See also, In re Sealed Case, 737 F.2d 94 (D.C.Cir.1984). Special note is made of In re Sealed Case, 754 F.2d 395, 397-98 n. 2 (D.C.Cir.1985):
“Upon a motion by the attorneys, the district court ordered the record in this case to be sealed, and the parties to be referred to in every instance by the pseudonyms John Doe and James Roe. The district court based its decision on the need to safeguard the secrecy of this grand jury proceeding and to protect the attorneys against disclosures that might reflect adversely on their professional reputations. We see no reason to disturb the district court’s order.”
In modifying the Protective Orders, the Magistrate will allow counsel to communicate to the limited partners and any other potential plaintiffs the identity of the non-party lawyer. However, should a civil complaint be filed, the Magistrate hereby prohibits counsel from averring in said complaint that the non-party attorney took the Fifth Amendment in this case. Under the Magistrate’s view of Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), the invocation of the Fifth Amendment by a party in a civil case, in which that individual is a party and not merely a witness, may be a matter of evidentiary significance, but it does not appear necessary to this Magistrate to so plead in a civil complaint at the time of filing. Indeed, in a subsequent civil case against the non-party witness in this case
Based on the foregoing, it is now hereby this 30th day of October, 1985,
ORDERED:
1. That the Protective Orders of November 15, 1984 and April 1, 1985 are hereby modified to allow counsel to disclose the identity of the non-party witness to the limited partners or any other person who may have sufficient interest to be a plaintiff against the non-party deponent as a defendant in any civil cause of action not barred by the statute of limitations in the jurisdiction where such cause of action may be hereafter brought.
2. That the Protective Orders of November 15, 1984 and April 1, 1985 are hereby modified to allow any other court in an independent and separate civil cause of action to permit disclosure in a civil case before that court in the exercise of its judicial discretion as it may determine appropriate.
3. With respect to the non-party witness’ motion to have a portion of the Court transcript of August 14, 1985 sealed in which the witness is referred to by name, that motion is hereby GRANTED, nunc pro tunc to August 14, 1985.
ORDER
In connection with plaintiffs’ motion to vacate protective order as to identity of a non-party witness, it is now hereby this 29th day of October, 1985,
ORDERED that all memoranda and points and authorities relevant to this issue be filed and maintained under seal in this case pending further order of the Magistrate or the Court in the matter.